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.

GERMANY) (I'ROVISIONAI, MEASUR:ES)

Order of 2 June 1999

In an Order issued in the case concerning Legality of
Use of Force (Yugoslavia v.Germany), the Court rejected
by twelve votes to three the request for the indication of
provisional measures submi.ttedby the Federal Republicof
Background iizformation
Yugoslavia (FRY). The Court also stated that it remained
seized of the case. It reserved the subsequentprocedure for On 29 April 1999 Yugoslavia filed an Application
hrther decisionby fourteenvotes to one. instituting proceedings against Germany "for violation of
The Court was composed as follows: Vice-President the obligation not to use force", accusing that State of
Weeramantry, ActitlgPresident;President Schwebel;Judges bombing Yugoslav territory "together with other Member
Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, States of NATO". Onthe same day, it submitted a request
for the indicationof provisional measures, asking the Court
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra- to order Germany to "cease immediately its acts of use of
Aranguren, Kooijmans; Judge ad hoc Kreci~ Registrar force" and to "refrain from any act of threat or use of force"
Valencia-Ospina.
against the FRY.
As a basis for thejurisdiction of the Coui-t,Yugoslavia
invokedArticle IX of the Conventionon the Prevention and
Punishment of the Crime of Genocide, adopted by the
The full text of the operative paragraph of the Order United Nations General Assemblyon 9 December 1948,as
reads as follows:
"38. For thesereasons, well as Article 38, paragraph 5, of the Rules of Court.
Article IX of the Genocide Convention provides that
THE COURT, disputes between the contracting parties relating to the
(1) Bytwelvevotes to three; interpretation, application or hlfilinent of the Convention
Rejects the request for the indication of provisional shall be submitted to the Internationaloui-tof Justice. As
to Article38,paragraph 5, of the Rules of Court, it provides
measures submitted by the Federal R-epublic of that when a State files an application against another State
Yugoslaviaon 29 April li999; which has not accepted the jurisdiction of the Court, the
IN FAVOUR: Vice-President Weeramailtry, Acting
President; President Schwebel; Judges Oda, Bedjaoui, applicationis transmittedto that other State,but no actionis
Guillaume, Ranjeva, Herczegh, Fleischhautx, Koroma, taken in the proceedings unless and until that State has
Hiiggins,Parra-Aranguren,Kooijinans; accepted the Court's jurisdiction for the purposes of the
case.
AGAINST: Judges Shi, Vereshchetin; Judge ad hoc
IO-eca;
(2) By fourteenvotes to one; Reasoizing of the Corlrt
In its Order, the Court first emphasizesthat it is "deeply
Resenies the subsequent procedure for further concerned withthe human tragedy, the loss of life, and the
de:cision. enormous suffering in Kosovo which form the background"
IN FAVOUR: Vice-President Weeramantry, Acting
President; President Schwebel; Judges Bedjaoui, of the dispute and "with the continuing loss of life and
Gr~illaume, Ranjeva, Herczegh, Shi, Fleischhauer, humansufferingin all parts ofYugosIavia".It declaresitself
Koroma. Vereshchetin, Higgins, Parra,-Aranguren, "profoundlyconcerned withthe use of force in Yugoslavia",
which "under the present circun~stances ...raises very
Kooijmans;Judge ad hoc Kreca; serious issues of international law". While being "mindfill
AGAINST:Judge Ocla. of the purposesand principles of the United Nations Charter
and of its own responsibilities in the maintenance of peace

and security under the Charter and [its] Statute", the Court
"deems it necessary to emphasize that all parties before it
Vice-President Weeramantry, Acting President, and must act in conformity with their obligations under the
Judges Shi, Koroma and Vereshchetin appended United Nations Charter and other rules of internationallaw,
declarations to the Order of the Court. Judges Oda and includinghumanitarianlaw".
Parra-.Arangurenappendedseparateopinionsto the Order of The Court then points out that it "does not automatically

the Clourt. Judge ad hoc Kreca appended a dissenting have jurisdiction over legal disputes between States" and
opinion to the Order of the;oul-t. that "one of the fundamentalprinciples of its Statute is that
it cannot decide a dispute between States withont theconsent of those Statesto itsjurisdiction". It cannot indicate Court to deal with the merits of the case" and they "leave
provisional tneasures without its jurisdiction in the case unaffected the right of the Governments of Yugoslavia and
being establishedprima facie. Gennany to submit arguments in respect of those
Concerning Article IX of the Genocide Convention,the questions".
Court states that it is not disputed that both Yugoslavia and The Court finally observes that "there is a fundamental

Germanyarepartiesto that Convention,withoutreservation, distinctionbetweenthe questionof the acceptanceby a State
and that Article IX accordingly appears to constitute a basis of the Court's jurisdictionand the compatibilityof particular
on which the jurisdiction of the Court might be founded. acts with international law". "The former requires consent;
The Court however finds that it must ascertain whether the the latterquestioncan onlybe reached when the Court deals
breaches of the Convention alleged by Yugoslavia are with the merits after having established its jurisdiction and
capable,of falling within the provisions of that instrument having heard full legal arguments by both parties". It
and ,whether, as a consequence, the dispute is one over einphasizes that "whether or not States accept the

which the Court might havejurisdiction rntioneniateriae.In jurisdiction of the Court, they remain in any event
its Application, Yugoslavia contends that the subject of the responsible for acts attributable to them that violate
diipute concerns inter alia "acts of the Federal Republic of internationallaw, includinghuinanitarianlaw" and that "any
Gemany by which it has violated its international disputes relating to the legality of such acts are required to
obligation ...not to deliberately inflict coilditions of life be resolved by peaceful means, the choice of which,
calculated to cause the physical destructioil of a national pursuant to Article33 of the Charter, is left to the parties".
group':.It contendsthat thesustainedand intensivebombing In this context,"the parties shouldtake care not to aggravate

of the whole of its territory, including the most heavily or extend the dispute".The Court reaffirms that"when such
populated areas. constitutes"a seriousviolatioilof Article I1 a dispute gives rise to a threat to the peace, breach of the
of the;~enocide Convention", thatit is the Yugoslav nation peace or act of aggression,the Security Council has special
as a whole and as such that is targeted and that the use of respoilsibilitiesunder ChapterVII of the Charter".
certain weapons whose long-tern1hazardsto health andthe
environment are already known, and the destruction of the Declaration of Vice-President Weeraniantry
largest part of the country's power supply system, with
catastrophicconsequencesof which theRespondentmust be Judge Weeramantryexpressedthe view that even though
the Court did not issue provisional measures, it still had the
aware, "iinpl[y] the intent to destroy, in whole or in part", power to issue an appeal to both Parties to the effect that
the Yugoslav national group as such. For its part, Germany
contends that even if true. the breaches of international they should act in accordance with their obligations under
obligations alleged by Yugoslavia in its Application do not the Charter of the United Nations and other rules of
enter the definition of Article I1 of the Genocide internationallaw includinghumanitarianlaw and do nothing
Convention. It appears to the Court that, according to the to aggravateor extendthe conflict.
Convention, the essential characteristic of genocide is the It had this power as it was still seized of the case and
would be so seized of it until the hearing, and because this
intended destruction of a national, ethnical, racial or
religious group; the Court further states that "the threat or was not a case of manifestlack ofjurisdiction.
use of force against a State cannot in itself constitute an act He thought this was the appropriate course to be
of genocide within the meaning of Article I1 of the followed. The Court itself had referred to its profound
Genocide Convention". It adds that in its opinion, it does concern with the human tragedy and loss of life involved
not appear at the present stage of the proceedings that the and to its own responsibilities for the maintenance of peace
bombings which form the subject of the Yugoslav and securityunder the Charterandthe Statuteof the Court.

Application "indeed entail the elelllent of intent, towards a Such an appeal would also be well within the Cou1.t'~
group as such, required by the provision" mentionedabove. inherent jurisdiction as more fully explained in his
The Court considers therefore that it is not in a position to dissentingopinion in Yugoslaviav.Belgizfm.
find. at this stage of the proceedings, that the acts imputed Such an appeal would carry more value than the mere
by Yugoslaviato Gernlanyare capable of comingwithin the
provisions of the Genocide Convention; and Article IX referenceto these mattersin theOrder itself.
cannot accordingly constitute a basis on which the
jurisdiction of theourt couldprima faciebe founded in the

case. .IudgeShi agrees with the majority that in the cases of
As to Article38, paragraph 5, of the Rules of Court, the Yugoslavia against France, Germany, Italy and the United
Court stresses that, in the absenceof consentby Germany,it Kingdom there is no prima facie jurisdiction, and in the
cannotexercisejurisdiction in the case, evenprima facie. cases of Yugoslavia against Spain and the United States not
even prima facie jurisdiction, for the indication of
The Court concludes that it "lacks prima facie
jurisdiction to entertain Yugoslavia's Application" and that provisionalmeasuresrequested by the Applicant.
it "cannot therefore indicate any provisional measure Nevertheless, he is of the opinion that, being confronted
whatsoever". However, the findings reached by the Court with a situation of great urgency arising from the use of
"in noway prejudge the question of the jurisdiction of the force in and against Yugoslavia, and upon receipt of therequests by the Applicant fo:rthe indication of provisional Parties not to aggravateor extend the dispute and to respect
measures, the Court ought to have issued a general international law, including humanitarian law and the
statement appealing to the Parties to act in compliancewith humanrights of all thecitizensof Yugoslavia.
their obligations under the United Nations Charter and all

othernlles of internationallaw relevant to the situation,and Declaration of Judge Ver~esIzcl~etirz
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
jurisdic:tionpending its final d.ecision. made its request for interimmeasures of protection imposed
~bt.hin~in the Statute or.Rules of Court pr~~hibitsthe a need to react immediately. The Court should have
Court from so acting. Also, given the responsibil-itiesof the promptly expressedits profound concernover the unfolding
human misery, loss of life and serious violations 'of
Court within the general framework for the maintenance of international law which by the titne of the request 'were
peace and security under the Charter, and under .:heStatute already a matter of public knowledge. It is unbecor~iirigfor
as an integralpart of the Charter,to issue such a statementis
within the impliedpowers of the Court in the exercise of its the principal judicial organ of the United Nations, whose
judicial.functions.Obviously.the Courthas failed to take an very raison d'Ctreis the peacefill resolution of international
opportunityto make its due ~~ontributiotno the maintenance disputes, to maintain silence in such a situation. Even if
ultimately the Court may come to the conclusionthat, dueto
of peace and securitywhenthat is mostneeded. 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 e:xerciseits powers under Article 75, paragraph 1,of Statutein relation to one or anotherof the respondent States,
the Rules of Court to decide proprio mot14Yugoslavia's
request to indicate provisional measures, theCourt failed to the Court is inherently empowered, at the very least,
immediatelyto call upon the Parties neither to aggravatenor
exercise that power, in contrast to its decision to make use to extend the conflict andto act in accordance with their
of that power in the recent LnGrandcase (Germany v. the obligations under the Charter of the United Natioik: This
United States of America) in a situation not as urgent as in 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
againstoperativeparagraph (1) of the six Orders. order. Such an authoritative appeal by the "World Court",
whichwould also be consistentwith Ai-ticle41 of its Statute
and Article 74, paragraph 4, and Article 75, paragraph 1,of
Declaration oj'JzrdgeKorornn its Rules, could have a sobering effect on the pal-ties
involved in the military conflict, unprecedentedin European
In his declaration Judge Koroma observed that these history sincethe end of the SecondWorld War.
were perhaps the most serio~lscases that have aver come
before the Court for provisional measures. He stated that The Court was urged to uphold the rule of law in the
jurisprudentially such measures were designed $:oprevent context of large-scale gross violations of international law,
violence, the use of force, to safeguard international peace including of the Charter of the United Nations. Instead of
and sec:urityas well as serving as an important part of the acting expeditiously and, if necessary,proprio motzr,in its
capacityas "the principal guardianof internationallaw", the
dispute settlement process under the Charter of the United majority of the Court, inore than one month after the
Nations. In his view the i.ndication of such measures
therefore represents one of the most importantfunctions of requests were made, rejected them in a sweeping way in
the Court. relation to all the cases brought before the Court, including
But the granting of such a relief, he stressed, could only those wherethe prima faciejurisdiction of the Coui-tcould
have been clearly established. Moreover, this decision has
be dong:in accordance with tlie Statute of the Conrt. In this been taken in a situation in which deliberate intensification
regard, and in the light of the jurisprudence of the Court, of bombardment of the most heavily populated areas is
where prima facie jurisdiction is absent or other causing unabated loss of life aillongst non-combatants and
circumr;tances predominate, the Court will not grant the
request forprovisionalmeasures. physical and mental hann to the population in all parts of
Nevertheless, he considered the Court, being the Yugoslavia.
For the foregoing reasons, Judge Vereshchetin cannot
principid judicial organ of the United Nations, whose concur with the inaction of the Court in this matter,
primary raison d'Ctre remains the presenlation of althoughhe concedes that in some of the cases institutedby
international peace and security, to be under ,a positive the Applicant the basis of the Court's jurisdiction, at this
obligation to contribute to the maintenanceof international
peace and security and to provide a judicial framework for stage of the proceedings, is opento doubt, and in relation to
the resolution of a legal conflict, especially one which not Spain and the UnitedStatesis non-existent.

only threatens international peace and security but also Separate opiniorzofJliclgeOh
involves enormous human suffering and continuing loss of
life. He had thereforejoined with the other Members of the Judge Oda supports the decision of the Court in
Court in calling for the peact:ful resolution of this conflict .dismissingthe requests for the indication of provisional
pursuant to Article 33 of the Charter, and in urging the measuresby the FederalRepublic of Yugoslavia against tenrespondent States.While favouringthe decisionof the Court stated in its decision of 11 July 1996 (Application oj'the

to remove the case from the GeneralList of the Court in the Coni)eiztioizon thePreventioil aid P~rnishnler lfthe Criine
cases of Spain and the United States, Judge Oda voted of Genocide (BosiliaaildHerzegoviilnv. Y~rgoslavirzI ).,C.J.
against the decision ill the other eight cases in which the Reports 1996 (11),pp. 614-615,para. 29); and that according
Court ordered that it "[rleserves the subsequent procedure to Article IX of the Genocide Convention, "disputes
for further decision", becausehe believes that those eight between the ContractingParties relating to the interpretation
cases should also be removed at this stage from the General or fulfilment of the present Convention"shall be submitted

List of the Court. to the International Court of Justice. Therefore, in his
Judge Oda considers that the Federal Republic of opinion the Court has prima facie jurisdiction to decide
Yugoslavia is not a Member of the United Nations and thus upon the provisionalmeasuresrequestedby Yugoslavia.
not a party to the Statute of the International Court of Yugoslavia requested the Court to indicate that the
Justice. The Applicationspresented by the Federal Republic Respondent"shall cease immediatelythe acts of use of force
of Yugoslavia should thereforebe declared inadmissiblefor and shall refrain from any act of threat or use of force

this reason alone and should be removed from the General against the Federal Republic of Yugoslavia". However, the
List of the Court. threat or use of force against a State cannot in itself
He nevertheless then goes on to discuss whether, if the constitute an act of genocide within the meaning of the
Federal Republic of Yugoslavia were to be considered a Genocide Convention. Consequently, Yugoslavia is
party to the Statute, it could have brought the present requestingthe indicationof provisionalmeasuresthat do iiot
aim to guarantee its rights under the Genocide Convention,
Applications on the basis of certain legalinstruments.After
having examined the meaning of (i) the optional clause of i.e., the right not to suffer acts which may be characterized
the Court's Statute, (ii) the background to the 1930 and as genocide crimes by the Convention. Therefore, in the
1931 instruments with Belgium and the Netherlands, opinion of Judge Pan-a-Aranguren,the measures requested
respectively, and (iii) the 1948 Genocide Convention, he by Yugoslaviashouldnot beindicated.
reaches the conclusion that none of these instruments grant

the Courtjurisdiction in anyof the ten Applications. Dissenti~lgopiilioiz of Judge Kreca
Judge Oda agrees with the Court that, as it has no basis In his dissenting opinion Judge Kreca points out the
of jurisdiction, it must reject the requests for the indication followingrelevant issues:
of provisional measures in all ten cases. However, he
considers that, the Court having decided that it has no Judge Kreca findsthat none of the equalizationfuiictions
jurisdiction to entertain the cases, noten prima facie, that of the institution of judge ad hoc have been met in this
particular case. The letter and spirit of Article 31,paragraph
this can only mean that it has no jurisdiction whatsoever in 2, of'the Statuteof the Court, applied to this particular case,
any of the cases. It follows, in Judge Oda's view, that not imply the right of Yugoslavia, as the applicant State, to
only in the cases of Spain and the United States, in which
the Court states that it manifestly lacks jurisdiction, but in choose as many judges ad hoc to sit on the Beiich as is
all the other cases, the Applications should be dismissed at necessaryto equalize the position of applicant State and that
this stage, given that the Court has found that there is not of the respondent States which have judges of their
even a prima faciebasis ofjurisdiction. nationality on the Bench and which share the same interest.
In concreto, the inherent right to equalization in the
Judge Oda also points out that. while the Court makes a composition of the Bench, as an expression of a
distinction between the Applications, even thoughthey deal fundamental rule of equality of parties, means that the
virtually with the same subject matter, this distinction,
which came about simply because of the different positions Federal Republic of Yugoslavia should have the right to
which individual States happened to take towards the choose five judges ad hoc, since even five out of ten
respondent States (United States, the United Kingdom,
various instruments that are to be applied concerning the France. Germany, and the Netherlands) have their national
Court's jurisdiction, willlead to differing results concerning judges sittingon the Bench.
the future proceedings in each of the cases. In Judge Oda's
view this is an illogical situation, which suppoi-ts his At the sametime, accordingto coherentjurisprudence of
contention that all ten cases should be dismissed in their the Court, none of the respondent States were entitled to
entiretyat this stage. appoint a judge ad hoc (Territorial Jurisdic:tion of the
Internatiowal Coinrnissioil of the River Oder; Customs
Rigin~ebetween Germa~zy an>Azrstria).
Separate opinion of Judge Parrn-Arawguren There is no need to say that the above-mentionedissues

Judge Pan-a-Arangurenrecalls that Yugoslaviamaintains are of upmost specific weight in view of the fact that
that "the bombing of Yugoslav populated areas constitute a obviously the meaning of such issues is not restricted to the
breach of Article I1 of the Genocide Convention", a procedure, but that it may have a far-reaching concrete
contention denied by the Respondent; that a legal dispute meaning.
exists between the Parties because of the existence of "a Judge Kreca finds that in the recent practice of the
situation in which the two sides hold clearly opposite views
Court, in particular that in which individuals were directly
conceining the question of the performance or non- affected, a high standard of humanitarian concei-nin the
performance of certain treaty obligations", as the Courtproct:edingsfor the indication of interimmeasureshas been armed force, in particular if it is used against objects and
formed, a standard which commanded suffici.entinherent means constituting conditions of nonnal life, can be
strength to brush aside sonnerelevant, both procedural and conducive to "inflicting on the group conditions of life"
bringing about "its physical destruction" (Genocide
material, rules governing the institution of provisional
measures (e-xantpli causo, the LaGrand case). Thus, Convention,Article11). . .
humanitarian considerations, independentlyfrom the norms Judge Kreca goes on to say that it can be argued that
of international law regulating human rights and liberties, such acts are in the funktion of degrading the military
have.,in a way, gained autonomous legal significance;they capacityof the Federal Republicof Yugoslavia.But such an
have transcended the moral and philanthropic sphere, and explanationcan hardly be regarded as a serious argument.
enteredthe sphereof law.
For the spiralof sucha lineof thinkingtnayeasilycometo a
In the case at hand, it seemsthat "humanitarian concern" point when, having in mind thatmilitary power is after all
has lost the acquired autonomouslegal positi,on.The fact conlprised of people, even mass killing of civilians can be
needs to be stressedin view of the specialcirc~lmstancesof claimed to constitute some sort of precautionary.measure
this case. Unlike the recent practice of the Court, that should prevent the .maintenance or, in case of
"humanitarian concern"has as its objectthefate of an entire mobilization,the increaseof militarypower of a State.
nation, in the literal sense. The Federal Republic of
Judge Kreca also points out that, in the incidental
Yugoslavia and its national and ethnic groups have been proceedingsthe Court cannot and should not concern itself
subjected for more than two months now to continued with the definitivequalificationofthe intent to imposeupon
attacks of a very strong, highly organized airamada of the the group conditions in which the survival of the group is
most powerful States of th~eworld. At the same time, the threatened. Having in mind the purpose of provisional
arsenal used in the attacks on Yugoslavia contains also measures, it canbe said that at this stage of the proceedings
weaponswhose effectshave no limitationseitherin spaceor
it is sufficient to establish that, in the conditions of
in time such as depleted uranium whichcause far-reaching extensive bombing, there is an objective risk of bringing
and irreparable damage to the health of the whole about conditions in which the survival of the group is
population. threatened.
Judge Kreca is of the clpinionthat the extensive use of