| I. | Substantive International Law - First Part |
| 2. | SOURCES OF INTERNATIONAL LAW |
| 2.1. | General Questions |
| 2.1.4. | Ius cogens / Obligations erga omnes |
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Application of the Convention
on the Prevention and Punishment
of the Crime of Genocide,
Provisional Measures,
Order of 13 September 1993,
I.C.J. Reports 1993, p. 325
[pp. 439-441 S.O. Lauterpacht] 99. This is not to say that the
Security Council can act free of all legal controls but only that the Court's
power of judicial review is limited. That the Court has some power of this kind
can hardly be doubted, though there can be no less doubt that it does not
embrace any right of the Court to substitute its discretion for that of the
Security Council in determining the existence of a threat to the peace, a breach
of the peace or an act of aggression, or the political steps to be taken
following such a determination. But the Court, as the principal judicial organ
of the United Nations, is entitled, indeed bound, to ensure the rule of law
within the United Nations system and, in cases properly brought before it, to
insist on adherence by all United Nations organs to the rules governing their
operation. The Court has already, in the Lockerbie case, given an extensive
interpretation of the powers of the Security Council when acting under Chapter
VII, in holding that a decision of the Council is, by virtue of Articles 25 -
and 103 of the Charter, able to prevail over the obligations of the parties
under any other international agreement (see Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial Incident at
Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provisional
Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 15 para. 39).
100. The present case, however, cannot fall within the scope of the doctrine
just enunciated. This is because the prohibition of genocide, unlike the matters
covered by the Montreal Convention in the Lockerbie case to which the terms of
Article 103 could be directly applied, has generally been accepted as having the
status not of an ordinary rule of international law but of jus cogens. Indeed,
the prohibition of genocide has long been regarded as one of the few undoubted
examples of jus cogens. Even in 1951, in its Advisory Opinion on Reservations
to the Convention on thePrevention and Punishment of the Crime of Genocide, the
Court affirmed that genocide was "contrary to moral law and to the spirit
and aims of the United Nations" (a view repeated by the Court in paragraph
51 of today's Order) and that
"the principles underlying the Convention are provisions which are
recognized by civilized nations as binding on States even without any
conventional obligation" (I.C.J. Reports 1951, p. 22).
An express reference to the special quality of the prohibition of genocide
may also be seen in the work of the International Law Commission in the
preparation of Article 50 of the draft articles on the Law of Treaties (Yearbook
of the International Law Commission, 1966, Vol. II, pp. 248-249) which
eventually materialized in Article 53 of the Vienna Convention on the Law of
Treaties and in the same Commission's commentary on Article 19 (international
crimes and delicts) of the draft articles on State Responsibility (Yearbook
of the International Law Commission, 1976, Vol. II, Pt. 2, p. 103). The
concept of jus cogens operates as a concept superior to both customary
international law and treaty. The relief which Article 103 of the Charter may
give the Security Council in case of conflict between one of its decisions and
an operative treaty obligation cannot - as a matter of simple hierarchy of norms
- extend to a conflict between a Security Council resolution and jus cogens.
Indeed, one only has to state the opposite proposition thus - that a
Security Council resolution may even require participation in genocide - for its
unacceptability to be apparent.
101. Nor should one overlook the significance of the provision in Article 24
(2) of the Charter that, in discharging its duties to maintain international
peace and security, the Security Council shall act in accordance with the
Purposes and Principles of the United Nations. Amongst the Purposes set out in
Article 1(3) of the Charter is that of achieving international co-operation "in
promoting and encouraging respect for human rights and for fundamental freedoms
for all without distinction as to race, sex, language or religion".
102. Now, it is not to be contemplated that the Security Council would ever
deliberately adopt a resolution clearly and deliberately flouting a rule of
jus cogens or requiring a violation of human rights. But the possibility
that a Security Council resolution might inadvertently or in an unforeseen
manner lead to such a situation cannot be excluded. And that, it appears, is
what has happened here. On this basis, the inability of Bosnia-Herzegovina
sufficiently strongly to fight back against the Serbs and effectively to prevent
the implementation of the Serbian policy of ethnic cleansing is at least in part
directly attributable to the fact that Bosnia-Herzegovina's access to weapons
and equipment has been severely limited by the embargo. Viewed in this light,
the Security Council resolution can be seen as having in effect called on
Members of the United Nations, albeit unknowingly and assuredly unwillingly, to
become in some degree supporters of the genocidal activity of the Serbs and in
this manner and to that extent to act contrary to a rule of jus cogens.
103. What legal consequences may flow from this analysis? One possibility is
that, in strict logic, when the operation of paragraph 6 of Security Council
resolution 713 (1991) began to make Members of the United Nations accessories to
genocide, it ceased to be valid and binding in its operation against
Bosnia-Herzegovina; and that Members of the United Nations then became free to
disregard it. Even so, it would be difficult to say that they then became
positively obliged to provide the Applicant with weapons and military equipment.
104. There is, however, another possibility that is, perhaps, more in accord
with the realities of the situation. It must be recognized that the chain of
hypotheses in the analysis just made involves some debatable links - elements of
fact, such as that the arms embargo has led to the imbalance in the possession
of arms by the two sides and that that imbalance has contributed in greater or
lesser degree to genocidal activity such as ethnic cleansing; and elements of
law, such as that genocide is jus cogens and that a resolution which
becomes violative of jus cogens must then become void and legally
ineffective. It is not necessary for the Court to take a position in this regard
at this time. Instead, it would seem sufficient that the relevance here of jus
cogens should be drawn to the attention of the Security Council, as it will
be by the required communication to it of the Court's Order, so that the
Security Council may give due weight to it in future reconsideration of the
embargo.
