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World Court Digest

I. Substantive International Law - First Part
7. LAW OF TREATIES
7.9. Specific Treaties
7.9.6. Convention on the Prevention and Punishment
of the Crime of Genocide of 1948

¤ Legality of Use of Force
(Yugoslavia v. Belgium),
Request for the Indication
of Provisional Measures,
Order of 2 June 1999

[pp. ] 39. Whereas the definition of genocide set out in Article II of the Genocide Convention reads as follows:

"In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group";

40. Whereas it appears to the Court, from this definition, "that [the] essential characteristic [of genocide] is the intended destruction of'a national, ethnical, racial or religious group'" (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. 345, para. 42); whereas 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; and whereas, in the opinion of the Court, 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 quoted above" (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J Reports X1996 (I), p. 240, para. 26);1

[cf. Orders of 2 June 1999, Legality of Use of Force, Yugoslavia v. Canada (§§ 38-39), Yugoslavia v. France (§§ 26-27), Yugoslavia v. Germany (§§ 26-27), Yugoslavia v. Italy (§§ 26-27), Yugoslavia v. Netherlands (§§ 39-40), Yugoslavia v. Portugal (§§ 38-39), Yugoslavia v. United Kingdom (§§ 34-35)]

[p. S.O. Oda] 23. In order to seise the Court of the present cases, excepting those concerning Portugal, Spain and the United States as referred to in paragraph 19 of this opinion, the Federal Republic of Yugoslavia would certainly have had to show that, applying the Genocide Convention to the situation in the territory of Federal Republic of Yugoslavia, the respondent States could indeed have been responsible for the failure of the fulfilment of the Convention in relation to the Federal Republic of Yugoslavia. But, more particularly, the Federal Republic of Yugoslavia would have to show that the respondent States have breached the rights of the Federal Republic of Yugoslavia as a Contracting Party (which by definition is a State) entitled to protection under that Convention. This, however, has not been established in the Applications and in fact the Genocide Convention is not intended to protect the rights of the Federal Republic of Yugoslavia as a State.

Even if, as alleged, the respondent States are responsible for certain results of the bombing or armed attacks by NATO armed forces in the territory of the Federal Republic of Yugoslavia, this fact alone does not mean that there is a "dispute relating to the interpretation, application or fulfilment of the Convention", as the respondent States did not violate the rights conferred upon the Federal Republic of Yugoslavia by the Convention. What is protected by the Convention is not the particular rights of any individual State (the Federal Republic of Yugoslavia in this case) but the status of human beings with human rights and the universal interest of the individual in general.

[pp. S.O. Parra-Aranguren] 5. In its Judgment of 11 July 1996 the Court admitted prima facie the existence of a legal dispute between the Parties because of the existence of:

"'a situation in which the two sides hold clearly opposite views concerning the question of the performance or non-performance of certain treaty obligations" (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74);

and that, by reason of the rejection by Yugoslavia of the complaints formulated against it by Bosnia and Herzegovina, 'there is a legal dispute' between them (East Timor (Portugal v. Australia), I.C.J. Reports 1995, p. 100, para. 22)" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), I.C.J. Reports 1996, (II), pp. 614-615, para. 29).

6. Consequently, taking into account the allegations of the parties in these incidental proceedings, there appears to exist, prima facie, a "legal dispute" between them regarding the interpretation and application of the Genocide Convention. For this reason, Article IX of the Genocide Convention is applicable and, in my opinion, the Court has prima facie jurisdiction to entertain the request for provisional measures presented by Yugoslavia.

7. Article IX of the Genocide Convention is the only prima facie basis for jurisdiction of the Court in the present case. Therefore the only provisional measures that it can indicate are those aiming to guarantee the rights of the Applicant under the Genocide Convention.

8. Yugoslavia is requesting the Court to indicate that the Respondent "shall cease immediately the acts of use of force and shall refrain from any act of threat or use of force against the Federal Republic of Yugoslavia" (CR 99/14, Etinski, p. 63). However, the threat or use of force against a State cannot in itself constitute an act of genocide within the meaning of the Genocide Convention. Consequently the provisional measures requested by Yugoslavia do not aim to guarantee its rights under the Genocide Convention, i.e., the right not to suffer acts which may be qualified as genocide crimes by the Convention. Therefore, in my opinion, the measures requested by Yugoslavia shall not be indicated.

1Cf. Orders of 2 June 1999, Legality of Use of Force, Yugoslavia v. Canada (§§ 38-39); Yugoslavia v. France (§§ 26-27); Yugoslavia v. Germany (§§ 26-27); Yugoslavia v. Italy (§§ 26-27); Yugoslavia v. Netherlands (§§ 39-40); Yugoslavia v. Portugal (§§ 38-39); Yugoslavia v. United Kingdom (§§ 34-35).