| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.2. | Questions of Procedure |
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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
[p. 337] 22. Whereas by its Order of 8 April 1993 the Court gave its
decision on a first request for the indication of provisional measures presented
by Bosnia-Herzegovina, and on a similar request by Yugoslavia, and indicated
certain provisional measures; whereas an Order indicating, or declining to
indicate, provisional measures may be revoked or modified, as stated in Article
76 of the Rules of Court; whereas however according to that text, the Court
cannot revoke or modify an Order unless, "in its opinion, some change in
the situation justifies" doing so, and where a request for measures has
been rejected, any fresh request must, according to Article 75, paragraph 3, of
the Rules of Court, be "based on new facts"; whereas the same applies
when additional provisional measures are requested; whereas it is therefore for
the Court to satisfy itself that the second request by Bosnia-Herzegovina, and
that of Yugoslavia, are based upon new circumstances such as to justify their
being examined; whereas, taking into account the development of the situation in
Bosnia-Herzegovina in recent months, this condition should be regarded as
satisfied;
[pp. 422-423 S.O. Lauterpacht] 40. In most of the previous requests
for provisional measures there has been relatively little disagreement about the
facts, the principal issue (the question of jurisdiction apart) being whether,
on the facts as known, an indication of such measures was required. Questions of
evidence were, therefore, not in the forefront of the discussion. In the present
case, Bosnia-Herzegovina has produced much evidence of the events which it
alleges, all of it in writing and most of it in secondary form. Yugoslavia has
produced no evidence to rebut it.
41. The question is how much account should be taken of this evidence. There
is no fundamental legal difference in the rules of evidence applicable
to the consideration of the merits of a case and those applicable in proceedings
relating to provisional measures. There is, however, a practical difference
in that in the latter there may be less time for the applicant to prepare its
evidence in the most cogent form, or for critical scrutiny of that evidence by
the respondent and the Court, than there is in the extended merits stage of a
case. But it does not follow that evidence produced at the provisional measures
stage is a priori to be treated as less adequate or less acceptable than
evidence produced at the merits stage or that it is incapable of sustaining more
than the most generalized findings of fact.
[pp. 457-458 D.O. Kreèa] If the examination of facts is of
crucial importance in court proceedings, and there can be no doubt it is, then
it is a fortiori important in the process of indication of provisional
measures. In a procedure that is characterized by urgency, the Court's
possibilities for making an unbiased and critical assessment of the factual
situation are necessarily limited. In each particular case, the Court is in
actual fact seeking to strike a fine and delicate balance between Scylla - the
need to respond to the urgency of the provisional measures - and Charybdis - the
imperative requirement not to distort the facts in doing so.
The procedure of indication of provisional measures relies heavily on
refutable assumptions (presumptio juris tantum), e.g., the refutable
assumption that the Court has jurisdiction in the merits of the case in which
provisional measures are adopted. The logic of presumption is also expressed in
the terminology used, since Article 4l of the Statute uses the term "parties",
although strictly speaking the parties affected by provisional measures need not
be the actual parties to the dispute which is to be resolved by a judgment
concerning the rights which the provisional measures are supposed to protect
(exempli causa, the Anglo-Iranian Oil Co. case).
Prima facie, an assessment is justified in cases when the Court establishes
its competence in the procedure of indicating provisional measures. And that, in
my view, is the absolute limit for the application prima facie of presumption in
the incidental procedure of provisional measures. For even an incorrect
assessment of jurisdiction, in the final analysis, does not affect legal
security, in fact it enhances it in view of the inherent advantages of the
judicial settlement of disputes over other modes of resolving disputes.
However, an incorrect assessment of facts necessarily leads to the erroneous
application of law which is the ontological antipode of the ideal of judicial
proceedings. And a prima facie assessment of facts necessarily entails a very
high risk of mistake.
There is not, nor should there be, any substantial difference between the
establishment of facts in an incidental procedure, regardless of the particular
incidental procedure involved, and the establishment of facts in the merits of
the case. Being established by decision of the Court, orders indicating
provisional measures have a real and objective value, although orders do not
create res judicata - in other words, the differentia specifica between
these two kinds of Court decisions being that provisional measures may be
re-examined in the merits of the case.
[pp. 460-461 D.O. Kreèa] In the absence of conclusive
evidence and on the grounds of what I have said, it is my view that the Court
should move away from the uncertain terrain of offered evidences to the hard,
precise concept of notoriety. The concept of notoriety in concreto is in
full harmony with what Judge Bedjaoui pointed out in his dissenting opinion in
the Lockerbie case:
"The present phase allows [the Court] only to entertain a provisional
and merely prima facie idea of the case, pending later consideration of the
merits in a fully comprehensive way." (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. 33.)
The principal elements of the concept of notoriety, logically and
empirically irrefutable, would in this particular case imply:
| (a) | | the places where mass destruction of people occurs;
|
| (b) | | under whose jurisdiction those places are; and
|
| (c) | | who is prima facie responsible in the light of obligations
imposed by relevant Articles of the Genocide Convention.
|
I hold that in the interest of justice, effective jurisdiction should be
taken as a second element of notoriety in spite of the fact that before the
Human Rights Committee the Applicant confirmed that
"the Republic of Bosnia-Herzegovina considers itself legally
responsible for whatever has taken place not only in that part of its territory
on which it has factual and effective control but also in other parts of its
territory" (United Nations, Human Rights Committee, International
Covenant on Civil and Political Rights, CCPR/C/79/Add.14, 28 December 1992).
It seems almost superfluous to note that the concept of notoriety is not
ideal. The shortcomings of this concept are evident. Basically, they are the
antipodes of its inherent advantages. While its constituent elements rest on
firm logical and empirical grounds, they are at the same time generalized and
relatively ill-adapted to specific events and cases. That is precisely why
notoriety constitutes a kind of reserve reliance for the Court in cases when it
is not in possession of irrefutable evidence.
This very defect of notoriety, in cases such as this one, turns into an
invaluable advantage. A dominant characteristic of this case is that
humanitarian reasons require the Court's reaction even though, in terms of law,
the fundamental identity between the proposed provisional measures, on the one
hand, and the subject-matter of the case, on the other, would suggest extreme
restraint in the reaction because of the danger of falling into the trap of an
interim judgment.
Notoriety, as a basis of the Court in the indication of provisional
measures, provides a chance for those measures to be tailored to the
characteristics of this case as I have described them. In other words, to be
worded in the form of general measures or, alternatively, as specific measures
designed to remove or at least mitigate the effects of the causes, i.e., the
facts which have resulted in the tragedy of civil war in Bosnia-Herzegovina.
