ICJ REJECTS YUGOSLAVIA'S REQUEST FOR ORDER TO HALT USE OF FORCE BY NETHERLANDS, REMAINS SEIZED OF CASE19990603
THE HAGUE, 2 June (ICJ) -- Today, the International Court of Justice (ICJ) rejected the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia (FRY) in the case concerning Legality of Use of Force (Yugoslavia v. Netherlands). The decision was taken by eleven votes to four.
In its Order, the Court also stated that it remained seised of the case. It reserved the subsequent procedure for further decision by fourteen votes to one.
Since the Court included on the Bench no judge of the nationality of Yugoslavia, that State appointed a judge ad hoc.
On 29 April Yugoslavia filed an Application instituting proceedings against the Netherlands "for violation of the obligation not to use force", accusing that State of bombing Yugoslav territory "together with other Member States of NATO" (see Press Release ICJ/569). On the same day, it submitted a request for the indication of provisional measures, asking the Court to order the Netherlands to "cease immediately its acts of use of force" and to "refrain from any act of threat or use of force" against the FRY.
As a basis for the jurisdiction of the Court, Yugoslavia invoked the declarations by which both States had accepted the compulsory jurisdiction of the Court in relation to any other State accepting the same obligation (Article 36, paragraph 2, of the Statute of the Court), and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on 9 December 1948. Article IX of the Genocide Convention provides that disputes between the contracting parties relating to the interpretation, application or fulfilment of the Convention shall be submitted to the International Court of Justice. In a supplement to its Application submitted to the Court on 12 May, Yugoslavia invoked, as an additional ground of jurisdiction, Article 4 of the Treaty of Judicial Settlement, Arbitration and Conciliation between the Netherlands and the Kingdom of Yugoslavia, signed at The Hague on 11 March 1931.
Reasoning of Court
In its Order, the Court first emphasizes that it is "deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background" of the dispute and "with the continuing loss of life and human suffering in all parts of Yugoslavia". It declares itself "profoundly concerned with the use of force in Yugoslavia", which "under the present circumstances ... raises very serious issues of international law". While being "mindful of the purposes and 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 must act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law".
The Court then points out that it "does not automatically have jurisdiction over legal disputes between States" and that "one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction". It cannot indicate provisional measures without its jurisdiction in the case being established prima facie (at first sight).
Concerning the first basis of jurisdiction invoked, the Court observes that under the terms of its declaration, Yugoslavia limits its acceptance of the Court's compulsory jurisdiction to "disputes arising or which may arise after the signature of the present Declaration, with regard to the situations or facts subsequent to this signature". It states that in order to assess whether it has jurisdiction in the case, it is sufficient to decide whether the dispute brought to the Court "arose" before or after 25 April, the date on which the declaration was signed. It finds that the bombings began on 24 March and have been conducted continuously over a period extending beyond 25 April. The Court has thus no doubt that a "legal dispute ... 'arose' between Yugoslavia and [the Netherlands], as it did also with the other NATO member States, well before 25 April 1999". The Court concludes that the declarations made by the Parties do not constitute a basis on which the jurisdiction of the Court could prima facie be founded in the case.
As to the arguments of the Netherlands that Yugoslavia is not a member State of the United Nations in view of United Nations Security Council resolutions 757 and 777 (1992) and United Nations General Assembly resolutions 47/1 (1992) and 48/88 (1993), nor a party to the Statute of the Court, so that Yugoslavia could not validly make the declaration accepting the compulsory jurisdiction of the Court, the Court maintains that it need not consider this question, taking into account its finding that the declarations do not constitute a basis of jurisdiction.
Concerning Article IX of the Genocide Convention, the Court states that it is not disputed that both Yugoslavia and the Netherlands are parties to that Convention, without reservation, and that Article IX accordingly appears to constitute a basis on which the jurisdiction of the Court might be founded. The Court however finds that it must ascertain whether the breaches of the Convention alleged by Yugoslavia are capable of falling within the provisions of that instrument and whether, as a consequence, the dispute is one over which the Court might have jurisdiction ratione materiae (as to the subject). In its Application, Yugoslavia contends that the subject of the dispute concerns inter alia "acts of the Kingdom of the Netherlands by which it has violated its international obligation ... not to deliberately inflict conditions of life calculated to cause the physical destruction of a national group". It contends that the sustained and intensive bombing of the whole of its territory, including the most heavily populated areas, constitutes "a serious violation of Article II of the Genocide Convention", that it is the Yugoslav nation as a whole and as such that is targeted and that the use of certain weapons whose long-term hazards to health and the environment are already known, and the destruction of the largest part of the country's power supply system, with catastrophic consequences of which the Respondent must be aware, "impl[y] the intent to destroy, in whole or in part", the Yugoslav national group as such. According to the Netherlands, Yugoslavia's Application "fails to refer to the conditions that form the core of the crime of genocide under the Convention, namely 'the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such'" and the Court accordingly lacks jurisdiction ratione materiae on the basis of Article IX. It appears to the Court that, according to the Convention, the essential characteristic of genocide is the intended destruction of a national, ethnical, racial or religious group; the Court further states that "the threat or use of force against a State cannot in itself constitute an act of genocide within the meaning of Article II of the Genocide Convention". It adds that in its opinion, it does not appear at the present stage of the proceedings that the bombings which form the subject of the Yugoslav Application "indeed entail the element of intent, towards a group as such, required by the provision" mentioned above. The Court considers therefore that it is not in a position to find, at this stage of the proceedings, that the acts imputed by Yugoslavia to the Netherlands are capable of coming within the provisions of the Genocide Convention; and Article IX cannot accordingly constitute a basis on which the jurisdiction of the Court could prima facie be founded in the case.
As to Article 4 of the Treaty of Judicial Settlement, Arbitration and Conciliation between the Netherlands and the Kingdom of Yugoslavia, the Court observes that "the invocation by a party of a new basis of jurisdiction in the second round of oral argument on a request for the indication of provisional measures has never before occurred in the Court's practice", that "such action at this late stage, when not accepted by the other party, seriously jeopardizes the principle of procedural fairness and the sound administration of justice" and that in consequence the Court cannot take into consideration this new title of jurisdiction.
The Court having found that it has "no prima facie jurisdiction to entertain Yugoslavia's Application, either on the basis of Article 36, paragraph 2, of the Statute or of Article IX of the Genocide Convention" and having "taken the view that it cannot, at this stage of the proceedings, take account of the additional basis of jurisdiction invoked by Yugoslavia", it follows that the Court "cannot indicate any provisional measure whatsoever". However, the findings reached by the Court "in no way prejudge the question of the jurisdiction of the Court to deal with the merits of the case" and they "leave unaffected the right of the Governments of Yugoslavia and the Netherlands to submit arguments in respect of those questions".
The Court finally observes that "there is a fundamental distinction between the question of the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law". "The former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties". It emphasizes that "whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law, including humanitarian law" and that "any disputes relating to the legality of such acts are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter, is left to the parties". In this context, "the parties should take care not to aggravate or extend the dispute". The Court reaffirms that "when such a dispute gives rise to a threat to the peace, breach of the peace or act of aggression, the Security Council has special responsibilities under Chapter VII of the Charter".
Composition of Court
The Court was composed as follows in the case: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreca; Registrar Valencia-Ospina.
Judge Koroma has appended a declaration to the Court's Order. Judges Oda, Higgins, Parra-Aranguren and Kooijmans have appended separate opinions. Vice-President Weeramantry, Acting President, Judges Shi and Vereshchetin, and Judge ad hoc Kreca have appended dissenting opinions.
The text of the declarations and a brief summary of the opinions will be published later as an addendum to the present press release. The full text of the Order, declarations and opinions appears on the Court's website (http://www.icj-cij.org).
The nine other cases concerning Legality of Use of Force submitted by Yugoslavia to the Court form the subject of separate press releases.
Information Office: Mr. Arthur Witteveen, Secretary of the Court (tel: + 31 70 302 23 36); Mrs. Laurence Blairon, Information Officer (tel: + 31 70 302 23 37) e-mail address: firstname.lastname@example.org
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