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World Court Digest

I. Substantive International Law - First Part
5.3. Security Council

¤ 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] 98. On the face of it, Security Council resolution 713 (1991) 1 is a valid prohibition of the supply of arms and military equipment to those involved in the Yugoslav conflict and is binding on all Members of the United Nations. Although the resolution is open to the comments expressed above in paragraphs 91-96, it cannot be said with certainty that in themselves these comments affect the continuing validity of the resolution. The fact that some of the members of the Security Council indicated that they would not have supported the resolution in the absence of the consent of Yugoslavia, in relation to whose territory the embargo was adopted, could only be relevant in the absence of a determination by the Security Council that the situation fell within Chapter VII of the Charter. Once the Security Council indicated that it was acting "under Chapter VII", it was no longer constrained by the necessity of obtaining the consent of any State to the measures that it considered the circumstances to require.
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 the Prevention 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.

1"... that all States shall, for the purpose of establishing peace and stability in Yugoslavia, immediately implement a general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia until the Security Council decides otherwise following consultation between the Secretary-General and the Government of Yugoslavia" (resolution 713 (1991), para. 6).