In an Order issued in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), the Court issued an interim order of provisional measures reaffirming the measures it ordered on April 8, 1993, when Bosnia-Herzegovina first moved in the Court against Yugoslavia (Serbia-Montenegro). It held that "the present perilous situation demands, not an indication of provisional measures additional to those indicated by the Court's Order of 8 April 1993, but immediate and effective implementation of those measures".

The Court declined to adopt more far-reaching injunctions requested by Bosnia as well as an injunction sought by Yugoslavia requiring Bosnia to take all measures within its power to prevent commission of the crime of genocide against the Serbs in Bosnia. In declining Bosnian requests, among others, to interdict plans to partition Bosnian territory, to declare annexation of Bosnian territory to be illegal, and to hold that Bosnia must have the means to prevent acts of genocide and partition by obtaining military supplies, the Court pointed out that it had prima facie jurisdiction in this case to order interim measures only within the scope of the jurisdiction conferred on it by the Convention on the Prevention and Punishment of the Crime of Genocide. It was not entitled to deal with broader claims.

At the same time, the Court recorded that, since its Order of April 8, and despite it and many resolutions of the United Nations Security Council, "great suffering and loss of life has been sustained by the population of Bosnia-Herzegovina in circumstances which shock the conscience of mankind and flagrantly conflict with moral law ..." It observed that the "grave risk" which the Court apprehended in April of the dispute over the commission of genocide in Bosnia being aggravated and extended "has been deepened by the persistence of conflicts" on its territory "and the commission of heinous acts in the course of those conflicts". The Court declared that it is "not satisfied that all that might have been done has been done" to prevent genocide in Bosnia, and reminded the parties to the case that they were obliged to take the Court's provisional measures "seriously into account".

In its Order the Court recalls that on 20 March 1993 Bosnia-Herzegovina instituted proceedings against Yugoslavia in respect of a dispute concerning alleged violations by Yugoslavia of the Convention on the Prevention and Punishment of the Crime of Genocide. In the Application Bosnia-Herzegovina, basing the jurisdiction of the Court on Article IX of the Convention for the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948 (hereinafter called "the Genocide Convention"), recounts a series of events in Bosnia-Herzegovina from April 1992 up to the present day which, in its contention, amount to acts of genocide within the definition given in the Genocide Convention and claims that the acts complained of have been committed by former members of the Yugoslav People's Army (YPA) and by Serb military and paramilitary forces under the direction of, at the behest of, and with assistance from Yugoslavia, and that Yugoslavia is therefore fully responsible under international law for their activities.

The Court refers to the submissions of Bosnia-Herzegovina, which requests the Court to adjudge and declare:

"(a) That Yugoslavia (Serbia and Montenegro) has breached, and is continuing to breach, its legal obligations toward the people and State of Bosnia and Herzegovina under Articles I, II(a), II(b), II(c), II(d), III(a), III(b), III(c), III(d), III(e), IV, and V of the Genocide Convention.

(b) That Yugoslavia (Serbia and Montenegro) has violated and is continuing to violate its legal obligations toward the people and State of Bosnia and Herzegovina under the four Geneva Conventions of 1949, their Additional Protocol I of 1977, the customary international laws of war including the Hague Regulations on Land Warfare of 1907, and other fundamental principles of international humanitarian law.

(c) That Yugoslavia (Serbia and Montenegro) has violated and continues to violate Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26 and 28 of the Universal Declaration of Human Rights with respect to the citizens of Bosnia and Herzegovina.

(d) That Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has killed, murdered, wounded, raped, robbed, tortured, kidnapped, illegally detained, and exterminated the citizens of Bosnia and Herzegovina, and is continuing to do so.

(e) That in its treatment of the citizens of Bosnia and Herzegovina, Yugoslavia (Serbia and Montenegro) has violated, and is continuing to violate, its solemn obligations under Articles 1(3), 55 and 56 of the United Nations Charter.

(f) That Yugoslavia (Serbia and Montenegro) has used and is continuing to use force and the threat of force against Bosnia and Herzegovina in violation of Articles 2(1), 2(2), 2(3), 2(4), and 33(1), of the United Nations Charter.

(g) That Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has used and is using force and the threat of force against Bosnia and Herzegovina.

(h) That Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has violated and is violating the sovereignty of Bosnia and Herzegovina by:

- armed attacks against Bosnia and Herzegovina by air and land;

- aerial trespass into Bosnian airspace;

- efforts by direct and indirect means to coerce and intimidate the Government of Bosnia and Herzegovina.

(i) That Yugoslavia (Serbia and Montenegro), in breach of its obligations under general and customary international law, has intervened and is intervening in the internal affairs of Bosnia and Herzegovina.

(j) That Yugoslavia (Serbia and Montenegro), in recruiting, training arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Bosnia and Herzegovina by means of its agents and surrogates, has violated and is violating its express charter and treaty obligations to Bosnia and Herzegovina and, in particular, its charter and treaty obligations under Article 2(4) of the United Nations Charter, as well as its obligations under general and customary international law.

(k) That under the circumstances set forth above, Bosnia and Herzegovina has the sovereign right to defend itself and its people under United Nations Charter Article 51 and customary international law, including by means of immediately obtaining military weapons, equipment, supplies and troops from other States.

(l) That under the circumstances set forth above, Bosnia and Herzegovina has the sovereign right under United Nations Charter Article 51 and customary international law to request the immediate assistance of any State to come to its defence, including by military means (weapons, equipment supplies, troops, etc.).

(m) That Security Council resolution 713 (1991), imposing a weapons embargo upon the former Yugoslavia, must be construed in a manner that shall not impair the inherent right of individual or collective self-defence of Bosnia and Herzegovina under the terms of United Nations Charter Article 51 and the rules of customary international law.

(n) That all subsequent Security Council resolutions that refer to or reaffirm resolution 713 (1991) must be construed in a manner that shall not impair the inherent right of individual or collective self-defence of Bosnia and Herzegovina under the terms of United Nations Charter Article 51 and the rules of customary international law.

(o) That Security Council resolution 713 (1991) and all subsequent Security Council resolutions referring thereto or reaffirming thereof must not be construed to impose an arms embargo upon Bosnia and Herzegovina, as required by Articles 24(1) and 51 of the United Nations Charter and in accordance with the customary doctrine of ultra vires.

(p) That pursuant to the right of collective self-defence recognized by United Nations Charter Article 51, all other State parties to the Charter have the right to come to the immediate defence of Bosnia and Herzegovina - at its request - including by means of immediately providing it with weapons, military equipment and supplies, and armed forces (soldiers, sailors, airpeople, etc.).

(q) That Yugoslavia (Serbia and Montenegro) and its agents and surrogates are under an obligation to cease and desist immediately from its breaches of the foregoing legal obligations, and is under a particular duty to cease and desist immediately:

- from its systematic practice of so-called "ethnic cleansing" of the citizens and sovereign territory of Bosnia and Herzegovina;

- from the murder, summary execution, torture, rape, kidnapping, mayhem, wounding, physical and mental abuse, and detention of the citizens of Bosnia and Herzegovina;

- from the wanton devastation of villages, towns, districts, cities, and religious institutions in Bosnia and Herzegovina;

- from the bombardment of civilian population centres in Bosnia and Herzegovina, and especially its capital, Sarajevo;

- from continuing the seige of any civilian population centres in Bosnia and Herzegovina, and especially its capital, Sarajevo;

- from the starvation of the civilian population in Bosnia and Herzegovina;

- from the interruption of, interference with, or harassment of humanitarian relief supplies to the citizens of Bosnia and Herzegovina by the international community;

- from all use of force - whether direct or indirect, overt or covert - against Bosnia and Herzegovina, and from all threats of force against Bosnia and Herzegovina;

- from all violations of the sovereignty, territorial integrity or political independence of Bosnia and Herzegovina, including all intervention, direct or indirect, in the internal affairs of Bosnia and Herzegovina;

- from all support of any kind - including the provision of training, arms, ammunition, finances, supplies, assistance, direction or any other form of support - to any nation, group, organization, movement or individual engaged or planning to engage in military or paramilitary actions in or against Bosnia and Herzegovina. (r) That Yugoslavia (Serbia and Montenegro) has an obligation to pay Bosnia and Herzegovina, in its own right and as parens patriae for its citizens, reparations for damages to persons and property as well as to the Bosnian economy and environment caused by the foregoing violations of international law in a sum to be determined by the Court. Bosnia and Herzegovina reserves the right to introduce to the Court a precise evaluation of the damages caused by Yugoslavia (Serbia and Montenegro)".

The Court further refers to the request made by Bosnia-Herzegovina (also on 20 March 1993) for the indication of the following provisional measures:

"1. That Yugoslavia (Serbia and Montenegro), together with its agents and surrogates in Bosnia and elsewhere, must immediately cease and desist from all acts of genocide and genocidal acts against the people and State of Bosnia and Herzegovina, including but not limited to murder; summary executions; torture; rape; mayhem; so-called "ethnic cleansing"; the wanton devastation of villages, towns, districts and cities; the siege of villages, towns, districts and cities; the starvation of the civilian population; the interruption of, interference with, or harassment of humanitarian relief supplies to the civilian population by the international community; the bombardment of civilian population centres; and the detention of civilians in concentration camps or otherwise.

2. That Yugoslavia (Serbia and Montenegro) must immediately cease and desist from providing, directly or indirectly, any type of support - including training, weapons, arms, ammunition, supplies, assistance, finances, direction or any other form of support - to any nation, group, organization, movement, militia or individual engaged in or planning to engage in military or paramilitary activities in or against the people, State and Government of Bosnia and Herzegovina.

3. That Yugoslavia (Serbia and Montenegro) itself must immediately cease and desist from any and all types of military or paramilitary activities by its own officials, agents, surrogates, or forces in or against the people, State and Government of Bosnia and Herzegovina, and from any other use or threat of force in its relations with Bosnia and Herzegovina.

4. That under the current circumstances, the Government of Bosnia and Herzegovina has the right to seek and receive support from other States in order to defend itself and its people, including by means of immediately obtaining military weapons, equipment and supplies.

5. That under the current circumstances, the Government of Bosnia and Herzegovina has the right to request the immediate assistance of any State to come to its defence, including by means of immediately providing weapons, military equipment and supplies, and armed forces (soldiers, sailors, airpeople, etc.).

6. That under the current circumstances, any State has the right to come to the immediate defence of Bosnia and Herzegovina - at its request - including by means of immediately providing weapons, military equipment and supplies, and armed forces (soldiers, sailors, and airpeople, etc.)".

The Court also refers to the recommendation by Yugoslavia (in written observations on the request for provisional measures, submitted on 1 April 1993) that the Court order the application of the following provisional measures:

"- to instruct the authorities controlled by A. Izetbegovic to comply strictly with the latest agreement on a cease-fire in the 'Republic of Bosnia and Herzegovina' which went into force on 28 March 1993;

- to direct the authorities under the control of A. Izetbegovic to respect the Geneva Conventions for the Protection of Victims of War of 1949 and the 1977 Additional Protocols thereof, since the genocide of Serbs living in the 'Republic of Bosnia and Herzegovina' is being carried out by the commission of very serious war crimes which are in violation of the obligation not to infringe upon the essential human rights;

- to instruct the authorities loyal to A. Izetbegovic to close immediately and disband all prisons and detention camps in the 'Republic of Bosnia and Herzegovina' in which the Serbs are being detained because of their ethnic origin and subjected to acts of torture, thus presenting a real danger for their life and health;

- to direct the authorities controlled by A. Izetbegovic to allow, without delay, the Serb residents to leave safely Tuzla, Zenica, Sarajevo and other places in the 'Republic of Bosnia and Herzegovina', where they have been subject to harassment and physical and mental abuse, and having in mind that they may suffer the same fate as the Serbs in eastern Bosnia, which was the site of the killing and massacres of a few thousand Serb civilians;

- to instruct the authorities loyal to A. Izetbegovic to cease immediately any further destruction of Orthodox churches and places of worship and of other Serb cultural heritage, and to release and stop further mistreatment of all Orthodox priests being in prison;

- to direct the authorities under the control of A. Izetbegovic to put an end to all acts of discrimination based on nationality or religion and the practice of 'ethnic cleansing', including the discrimination relating to the delivery of humanitarian aid, against the Serb population in the 'Republic of Bosnia and Herzegovina.'"

After recalling its Order of 8 April 1993, the Court refers to a second request of Bosnia-Herzegovina, filed on 27 July 1993, by which it urgently requests the Court to indicate the following additional provisional measures:

"1. That Yugoslavia (Serbia and Montenegro) must immediately cease and desist from providing, directly or indirectly, any type of support - including training, weapons, arms, ammunition, supplies, assistance, finances, direction or any other form of support - to any nation, group, organization, movement, military, militia or paramilitary force, irregular armed unit, or individual in Bosnia and Herzegovina for any reason or purpose whatsoever.

2. That Yugoslavia (Serbia and Montenegro) and all of its public officials - including and especially the President of Serbia, Mr. Slobodan Milosevic - must immediately cease and desist from any and all efforts, plans, plots, schemes, proposals or negotiations to partition, dismember, annex or incorporate the sovereign territory of Bosnia and Herzegovina.

3. That the annexation or incorporation of any sovereign territory of the Republic of Bosnia and Herzegovina by Yugoslavia (Serbia and Montenegro) by any means or for any reason shall be deemed illegal, null, and void ab initio.

4. That the Government of Bosnia and Herzegovina must have the means 'to prevent' the commission of acts of genocide against its own People as required by Article I of the Genocide Convention.

5. That all Contracting Parties to the Genocide Convention are obliged by Article I thereof 'to prevent' the commission of acts of genocide against the People and State of Bosnia and Herzegovina.

6. That the Government of Bosnia and Herzegovina must have the means to defend the People and State of Bosnia and Herzegovina from acts of genocide and partition and dismemberment by means of genocide.

7. That all Contracting Parties to the Genocide Convention have the obligation thereunder 'to prevent' acts of genocide, and partition and dismemberment by means of genocide, against the People and State of Bosnia and Herzegovina.

8. That in order to fulfill its obligations under the Genocide Convention under the current circumstance, the Government of Bosnia and Herzegovina must have the ability to obtain military weapons, equipment, and supplies from other Contracting Parties.

9. That in order to fulfill their obligations under the Genocide Convention under the current circumstances, all Contracting Parties thereto must have the ability to provide military weapons, equipment, supplies and armed forces (soldiers, sailors, airpeople) to the Government of Bosnia and Herzegovina at its request.

10. That United Nations Peacekeeping Forces in Bosnia and Herzegovina (i.e., UNPROFOR) must do all in their power to ensure the flow of humanitarian relief supplies to the Bosnian People through the Bosnian city of Tuzla".

The Court then recalls that on 5 August 1993, the President of the Court addressed a message to both Parties, referring to Article 74, paragraph 4, of the Rules of Court, which enables him, pending the meeting of the Court,

"to call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects",

and stating:

"I do now call upon the Parties so to act, and I stress that the provisional measures already indicated in the Order which the Court made after hearing the Parties, on 8 April 1993, still apply.

Accordingly I call upon the Parties to take renewed note of the Court's Order and to take all and any measures that may be within their power to prevent any commission, continuance, or encouragement of the heinous international crime of genocide".

The Court further refers to a request by Yugoslavia, filed on 10 August 1993, whereby Yugoslavia requested the Court to indicate the following provisional measure:

"The Government of the so-called Republic of Bosnia and Herzegovina should immediately, in pursuance of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, take all measures within its power to prevent commission of the crime of genocide against the Serb ethnic group".

Hearings on the two requests were held on 25 and 26 August 1993.

After referring to several questions of procedure, the Court begins by considering that in order to be admissible the second request by Bosnia-Herzegovina, and that of Yugoslavia, should be based upon new circumstances such as to justify their being examined. The Court finds that that is the case.

"to afford a basis on which the jurisdiction of the Court might be founded to the extent that the subject-matter of the dispute relates to 'the interpretation, application or fulfilment' of the Convention, including disputes 'relating to the responsibility of a State for genocide or for any of the other acts enumerated in Article III' of the Convention" (I.C.J. Reports 1993, p. 16, para. 26).

It thereafter examines several additional bases of jurisdiction relied on by the Applicant, finding that the 1919 Treaty of St. Germain-en-Laye is irrelevant for the present request; that no new fact has been put forward to reopen the question of whether the letter of 8 June 1992, addressed to the President of the Arbitration Commission of the International Conference for Peace in Yugoslavia may constitute a ground for jurisdiction; that the Court's jurisdiction under customary and conventional laws of war and international humanitarian law is not prima facie established; and that a communication Yugoslavia made in the context of the first request for provisional measures by the Applicant, dated 1 April 1993, cannot, even prima facie, be interpreted as "an unequivocal indication" of a "voluntary and indisputable" acceptance of the Court's jurisdiction.

The Court then observes that the power of the Court to indicate provisional measures under Article 41 of the Statute of the Court has as its object to preserve the respective rights of the parties pending the decision of the Court, and presupposes that irreparable prejudice should not be caused to rights which are the subject of dispute in judicial proceedings; and whereas it follows that the Court must be concerned to preserve by such measures the rights which may subsequently be adjudged by the Court to belong either to the Applicant or to the Respondent and that the Court, having established the existence of one basis on which its jurisdiction might be founded, namely Article IX of the Genocide Convention, and having been unable to find that other suggested bases could prima facie be accepted as such, ought not to indicate measures for the protection of any disputed rights other than those which might ultimately form the basis of a judgment in the exercise of the jurisdiction thus prima facie established.

After reiterating the measures it indicated in its Order of 8 April 1993, the Court then sums up the rights sought to be protected, as enumerated in the second request of Bosnia-Herzegovina for the indication of provisional measures and concludes that nearly all of those rights were asserted in almost identical terms in Bosnia-Herzegovina's first request and that only one of them is such that it may prima facie to some extent fall within the rights arising under the Genocide Convention; and that it was therefore in relation to that paragraph and for the protection of rights under the Convention that the Court indicated provisional measures in its Order of 8 April 1993.

The Court then turns to the list of measures which the Applicant requests it to indicate and observes that it includes certain measures which would be addressed to States or entities not parties to the proceedings. The Court considers that the judgment in a particular case has, in accordance with Article 59 of the Statute of the Court, "no binding force except between the parties"; and that accordingly the Court may, for the preservation of those rights, indicate provisional measures to be taken by the parties, but not by third States or other entities who would not be bound by the eventual judgment to recognize and respect those rights.

Three of the measures requested by the Applicant provide that the Government of Bosnia-Herzegovina "must have the means" to prevent the commission of genocide, and to defend its people against genocide, and "must have the ability to obtain military weapons, equipment and supplies" from the other parties to the Genocide Convention. The Court observes that Article 41 of the Statute empowers the Court to indicate measures "which ought to be taken to preserve the respective rights of either Party", and that this means measures which ought to be taken by one or both parties to the case; that however it is clear that the intention of the Applicant in requesting these measures is not that the Court indicate that the Respondent ought to take certain steps for the preservation of the Applicant's rights, but rather that the Court make a declaration of what those rights are, which "would clarify the legal situation for the entire international community", in particular the Members of the United Nations Security Council. The Court accordingly finds that this request must be regarded as outside the scope of Article 41 of the Statute.

Two of the measures requested relate to the possibility of "partition and dismemberment", annexation or incorporation of the sovereign territory of Bosnia and Herzegovina. The Court is unable to accept that a "partition and dismemberment", or annexation of a sovereign State, or its incorporation into another State, could in itself constitute an act of genocide and thus a matter falling within the jurisdiction of the Court under Article IX of the Genocide Convention. On the other hand, in so far as it is the Applicant's contention that such "partition and dismemberment", annexation or incorporation will result from genocide, the Court, in its Order of 8 April 1993 has already indicated that Yugoslavia should "take all measures within its power to prevent commission of the crime of genocide", whatever might be its consequences.

Turning to the request by Yugoslavia the Court does not find that the circumstances, as they now present themselves to the Court, are such as to require a more specific indication of measures addressed to Bosnia-Herzegovina so as to recall to it both its undoubted obligations under the Genocide Convention, and the need to refrain from action of the kind contemplated by paragraph 52 B of the Court's Order of 8 April 1993.

After reviewing the situation and after referring to several pertinent resolutions of the Security Council the Court comes to the conclusion that

"the present perilous situation demands, not an indication of provisional measures additional to those indicated by the Court's Order of 8 April 1993 ... but immediate and effective implementation of those measures".

The full text of the operative paragraph reads as follows:

"61. For these reasons,

THE COURT

(1) By 13 votes to 2,

Reaffirms the provisional measure indicated in paragraph 52 A (1) of the Order made by the Court on 8 April 1993, which should be immediately and effectively implemented;

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh; Judge ad hoc Lauterpacht;

AGAINST: Judge Tarassov; Judge ad hoc Kreca;

(2) By 13 votes to 2,

Reaffirms the provisional measure indicated in paragraph 52 A (2) of the Order made by the Court on 8 April 1993, which should be immediately and effectively implemented;

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh; Judge ad hoc Lauterpacht;

AGAINST: Judge Tarassov; Judge ad hoc Kreca;

(3) By 14 votes to 1,

Reaffirms the provisional measure indicated in paragraph 52 B of the Order made by the Court on 8 April 1993, which should be immediately and effectively implemented.

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen, Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh; Judge ad hoc Lauterpacht;

AGAINST: Judge ad hoc Kreca."

Vice-President Oda appended a declaration to the Order of the Court.

Judges Shahabuddeen, Weeramantry, Ajibola and Judge ad hoc Lauterpacht appended separate opinions to the Order.

Judge Tarassov and Judge ad hoc Kreca appended dissenting opinions to the Order.

Vice-President Oda, in his declaration, regrets that the Court took no specific position on Yugoslavia's request for the indication of a provisional measure to the effect that Bosnia-Herzegovina should do all in its power to prevent genocidal acts against the Serb ethnic group, a request presented on the basis of evidence submitted to the United Nations. He is unconvinced by the Court's reasons for avoiding a direct response to this request.

In his separate opinion, Judge Shahabuddeen explained his reasons for agreeing with the Court's holding on the question of prorogated jurisdiction. He could not accept Yugoslavia's objection that Bosnia-Herzegovina's request for interim measures amounted to a request for an interim judgment. Nor could he accept that, in the circumstances of the case, Bosnia-Herzegovina was not entitled to rely on media material. In his view, Yugoslavia had not complied with the provisional measures indicated by the Court on 8 April 1993. For this and other reasons given by him, he considered that it would not be correct for the Court to act on the basis of the material presented by Yugoslavia.

Judge Weeramantry in his separate opinion stated that the facts before the Court fall into three categories: accounts and reports carried by the media; statements of disinterested third parties such as United Nations officials; and communiqu‚s issued by the Government of Yugoslavia and the Government of the Republic of Serbia. The opinion states that even if the first category be completely excluded, the material placed before the Court in the second and third categories is sufficient to satisfy the Court on a provisional basis and for the limited purpose of interim measures that circumstances exist, in terms of Article 41 of the Statute of the Court, showing a prima facie case of non-compliance by Yugoslavia with the Order of the Court of 8 April.

The rest of the opinion addresses the question whether a provisional order made by the Court is binding in law. The opinion examines the general principles applicable to the matter as well as the relevant provisions of the United Nations Charter, the Statute of the Court and the Rules of Court, and reaches the conclusion that provisional measures once ordered impose an obligation of compliance with that Order which is binding in law.

It also states that in the absence of such a principle the competence of the Court to discharge the obligations resting upon it under the Charter and the Statute would be significantly impaired.

On the two requests for indication of provisional measures presented to the Court by both Parties, Judge Bola Ajibola reaches the same conclusion, in his separate opinion, as the Court, albeit via another route. He points out that since the Parties have not complied with the first Order issued by the Court, it has the power to insist that no subsequent Order should be indicated until the Parties ensure that the earlier Order of 8 April 1993 has been complied with. In his view, the Court has that power, not only by invoking its statutory power under the Statute and Rules of Court, but also as a part of its inherent power under general international law.

He further states that in his view the Court has the power to indicate provisional measures as part of its incidental power and function, and that such measures ought to be binding, effective and enforceable, otherwise it may be impeded from functioning as a Court. It is for these alternative reasons, that he supports the decision of the Court, whereby it reaffirms the provisional measures indicated in paragraph 52 of its Order of 8 April 1993.

Judge ad hoc Lauterpacht, concurring with the Court, says that he would have preferred the Court's Order to be more detailed both in its statement of material facts and in the measures which it indicates. Emphasizing the unprecedented human dimension of the case, he finds that the atrocities committed by the Serbs against the Muslims in Bosnia, especially the process of "ethnic cleansing", amounts to genocide and that the Respondent Government has done nothing to rebut the evidence of its support for the Bosnian Serbs.

He observes that the Security Council's arms embargo has led to a marked imbalance between the weaponry in the hands of the Serbian and Muslim populations of Bosnia-Herzegovina and that the UN Special Rapporteur (whose view has been adopted by the General Assembly) has identified this imbalance as having contributed to the intensity of ethnic cleansing in the area. He points to the fact that the prohibition of genocide has long been accepted as a matter of jus cogens, a legal order superior to treaties. In so far, therefore, as the embargo can be seen as contributing to ethnic cleansing and thus to genocide, its continuing validity has become doubtful and the Security Council should know this when reconsidering the embargo.

In addition to sharing the Court's opinion that it possesses jurisdiction under the Genocide Convention, Judge Lauterpacht holds that the Respondent has, by a request that it made to the Court on 1 April 1993, given the Court additional jurisdiction to deal with certain other aspects of the conflict in Bosnia. He, therefore, favours the indication of additional measures to cover such matters as compliance with the Geneva Conventions, the release of detainees and the ending of discrimination on ethnic grounds.

Judge Tarassov recalls that he had been unable to support one of the measures indicated by the Order of the Court of 8 April 1993, because it came, in his view, close to a pre-judgment and imposed ill-defined and virtually unlimited requirements on Yugoslavia. Bosnia's second request confirmed his apprehensions in that it ascribed alleged acts of genocide entirely to Yugoslavia with no attempt to establish a causal link. To base a finding of a State's responsibility on a simple ethnic link with part of the population of another State would be very dangerous for international law. Nevertheless the Court has reiterated its previous conclusions, but without duly mentioning Bosnia's own obligations analogous to those of Yugoslavia, despite the latter's specific request in that sense. The Court thus seems to have prematurely decided that Yugoslavia has the lion's share of responsibility for the prevention of acts of genocide.

Judge Tarassov finds this a one-sided approach to a fratricidal war in which all ethnic groups involved have suffered inexpressibly. He is unable to support an Order enshrining it when all interested parties have accepted a constitutional agreement and are urged by the Security Council to conclude a just and comprehensive political settlement as soon as possible. To stress the need for the Parties to the case to facilitate that settlement would have been to indicate the most urgent and effective measure for the prevention of genocide, but unfortunately the Court made no reference at all to that need. The Court's silence on the point amounts to a regrettable failure to exercise its moral authority.

Judge ad hoc Kreca is of the opinion that the indicated provisional measures, particularly the first two of them, are not balanced, that they are broad, being ambiguous and suggestive, so that both in wording and in content they come dangerously close to, and even incorporate, certain elements of an interim judgment.

He takes the view that the prejudicial nature of these measures emanates from this Order which, in substance, is a reaffirmation of the Order of 8 April 1993.

In his opinion, in this stage of proceedings in which the Court cannot make "definitive findings of fact and imputability", if the Court found that all requirements for the indication of such measures had been met, it should have decreed a general provisional measure which would, in substance, have coincided with the message of the President of the Court of 5 August 1993 addressed to both Parties in the dispute, together with specific interim measures based on the concept of notoriety which would include a request to the Applicant to continue the peace negotiations as the most effective and expedient way to put an end to the inferno of civil war in Bosnia and Herzegovina.

Judge ad hoc Kreca also believes that in relation to the general measure, such specific interim measures should either be of an alternative or cumulative nature.