Max Planck Institute for Comparative Public Law and International Law Logo Max Planck Institute for Comparative Public Law and International Law

You are here: Publications Archive World Court Digest

World Court Digest

III. The International Court of Justice
3.10. Provisional Measures
3.10.2. Questions of Procedure

¤ 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.