(Yugoslavia v. Belgium; Yugoslavia v. Canada; Yugoslavia v. France; Yugoslavia v. Germany; Yugoslavia v. Italy; Yugoslavia v. Netherlands; Yugoslavia v. Portugal; Yugoslavia v. Spain; Yugoslavia v. United Kingdom; Yugoslavia v. United States of America)
Order of 2 June 1999
On 29 April 1999, Yugoslavia filed an application instituting proceedings against ten States (Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States of America) for violation of the prohibition on the use of force by bombing Yugoslav territory together with other member states of NATO. On the same day, it submitted a request for the indication of provisional measures, asking the Court to order the respondents to cease their acts immediately and to refrain from any further threat or use of force against Yugoslavia.
As a basis for the jurisdiction of the Court, Yugoslavia invoked the declarations by which 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 Genocide Convention, which 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. With respect to Belgium and the Netherlands, Yugoslavia also based the jurisdiction on specific treaties on judicial settlement.
In two of the ten cases (Spain and United States), the Court held that it manifestly lacked jurisdiction and ordered that the cases be removed from its list. Spain had accepted the jurisdiction of the Court only if the party bringing a dispute before the Court had declared its acceptance at least twelve months prior to the filing of the application. Since Yugoslavia had submitted its declaration under Article 36, paragraph 2, of the Statute only on 26 April 1999, the Court saw no doubt that the declarations manifestly could not constitute a basis of jurisdiction, even prima facie. Moreover, Spain's instrument of accession to the Genocide Convention contained a reservation in respect of the whole of Article IX, which therefore could not serve as a basis for jurisdiction, either. Similarly, the United States had, upon ratification of the Genocide Convention made a reservation requiring the specific consent of the United States in each case brought before the Court under Article IX. Since the United States had not accepted the Court's jurisdiction under the optional clause, the Court, as in the case of Spain, found that it manifestly lacked jurisdiction in this case.
In the other eight cases, the Court found that it lacked prima facie jurisdiction, which was a prerequisite for the issue of provisional measures, and that it therefore could not indicate such measures. A fuller consideration of the question of jurisdiction would take place later. The Court accordingly remained seized of those cases and reserved the subsequent procedure for further decision.
With respect to those states that had accepted the jurisdiction of the Court under the optional clause (Belgium, Canada, the Netherlands and Portugal), the Court observed that under the terms of its declaration, Yugoslavia had limited 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". In this regard, the Court stated, it was sufficient to decide whether the dispute brought to the Court had arisen before or after 25 April 1999, the date on which the declaration had been signed. It found that the bombings began on 24 March 1999 and had been conducted continuously over a period extending beyond 25 April 1999. The Court had thus no doubt that a legal dispute 'arose' well before 25 April 1999, and it concluded that the declarations made by the Parties did not constitute a basis on which the jurisdiction of the Court could prima facie be founded in the case. As to the argument that Yugoslavia was not a member State of the United Nations in view of United Nations General Assembly resolution 47/1 (1992), nor in consequence a party to the Statute of the Court, so that Yugoslavia could not subscribe to the optional clause of compulsory jurisdiction, the Court maintained that it needed 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 found that it had to ascertain whether the breaches of the Convention alleged by Yugoslavia were capable of falling within the provisions of that instrument and whether, as a consequence, the dispute was one over which the Court might have jurisdiction ratione materiae. In its Application, Yugoslavia contended that the subject of the dispute concerned inter alia acts of the respondent States by which they had violated their international obligation not to deliberately inflict conditions of life calculated to cause the physical destruction of a national group. It contended that the sustained and intensive bombing of the whole of its territory, including the most heavily populated areas, constituted a serious violation of Article II of the Genocide Convention and that it was the Yugoslav nation as a whole and as such that was targeted. For their part, the respondents, referring to the definition of genocide contained in the Convention, emphasized the importance of the intentional element, the intent to destroy all or part of an ethnic, racial or religious group. They asserted that Yugoslavia could not produce evidence of such intention on the part of the acting States. It appeared to the Court that, according to the Convention, the essential characteristic of genocide was the intended destruction of a national, ethnical, racial or religious group; the Court further stated that the threat or use of force against a State could not in itself constitute an act of genocide. It added that in its opinion, it did not appear at the present stage of the proceedings that the bombings which formed the subject of the Yugoslav Application indeed entailed the element of intent, towards a group as such, required by the provision mentioned above. The Court considered therefore that it was not in a position to find, at this stage of the proceedings, that the acts imputed by Yugoslavia to Belgium were capable of coming within the provisions of the Genocide Convention; and Article IX could not accordingly constitute a basis on which the jurisdiction of the Court could prima facie be founded in the case.
As to the conventions on judicial settlement between Yugoslavia and Belgium and the Netherlands, the Court observed 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, when not accepted by the other party, seriously jeopardized the principle of procedural fairness and that in consequence the Court could not take into consideration this new title of jurisdiction.
Having found that it had 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 could not, at this stage of the proceedings, take account of the additional basis of jurisdiction invoked by Yugoslavia, it followed that the Court could not indicate any provisional measure whatsoever.
In all cases, however, the Court expressed its deep concern with the human tragedy, the loss of life, and the enormous suffering in Kosovo which formed the background of the dispute and with the continuing loss of life and human suffering in all parts of Yugoslavia. It set out its profound concern with the use of force in Yugoslavia, which raised very serious issues of international law, and emphasized that all parties before it had to act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law, whether or not they had accepted the jurisdiction of the Court. Moreover, the Court stated that the parties should take care not to aggravate or extend the dispute, and that when such a dispute gave rise to a threat to the peace, breach of the peace or act of aggression, the Security Council had special responsibilities under Chapter VII of the Charter.
Various declarations, separate opinions and dissenting opinions were appended to the different orders of the Court. In his Declaration, Judge Koroma stressed the importance of the call of the Court not to aggravate the dispute. Judge Oda expressed the view that all cases should have been struck from the list, inter alia because Yugoslavia could not be considered a member of the United Nations and therefore not a member of the statute of the Court, and because all cases should have been dealt with in the same manner.
In a Separate Opinion, Judge Higgins discussed in particular the question of when a dispute arises, and she took the view that some jurisdictional issues were so complex that they could only be addressed at the merits stage, which would, however, not bar a determination of the Court of its prima facie jurisdiction. According to Judge Parra-Aranguren, there existed a dispute on the Genocide Convention which gave rise to prima facie jurisdiction, but the Court should not have indicated provisional measures since these would not have aimed at protecting Yugoslavia's rights under the Convention. In another Separate Opinion, Judge Kooijmans regretted the fact that the Court had evaded the question of whether Yugoslavia was a member of the United Nations, since the doubts arising therefrom alone would have sufficed to draw into question the prima facie jurisdiction of the Court.
In his Dissenting Opinion, Vice-President Weeramantry stressed that the Court should have issued provisional measures against both parties as part of its role in the assistance of a peaceful settlement of disputes. Moreover, he disagreed with the Court's finding that the dispute in question had arisen when the bombing began. Similarly, Judge Shi, in another Dissenting Opinion, held that the dispute in its entirety arose only after the signature, partly because in the case of continuing acts, the time of the commission of the breach extends over the whole period until their cessation. Judge Vereshchetin, dissenting, emphasized that the Court's interpretation of Yugoslavia's declaration of acceptance of jurisdiction could lead to the absurd conclusion that jurisdiction was excluded for the very disputes it was intended to cover. Moreover, in his view, the Court should also have taken into account the additional bases of jurisdiction invoked by Yugoslavia in the second round of oral arguments since the respondents had been given the possibility of presenting their counter-arguments to the Court. Judge ad hoc Kreca, in his Dissenting Opinion, criticized the Order on various points, among them the practice of admission of judges ad hoc in this case which led to heightened inequality instead of equalization. Moreover, he contended that the conditions for prima facie jurisdiction under the Genocide Convention were fulfilled and that the approach of the Court as regards the jurisdiction under the optional clause was more restrictive than usual in proceedings for the indication of provisional measures. In addition, in his view, the United States' reservation to the Genocide Convention was contrary to ius cogens and should therefore have been disregarded.
With respect to the case concerning Italy, Judge ad hoc Gaja explained why, in his view, the case should not be removed from the list.