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| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.3. | Provisional Measures and Jurisdiction |
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Legality of Use of Force
(Yugoslavia v. Belgium)
Request for the Indication of
Provisional Measures
Order of 2 June 1999
[p. ] 21. Whereas on a request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established;1
[pp. ] 38. Whereas, in order to determine, even prima facie, whether a dispute within the meaning of Article IX of the Genocide Convention exists, the Court cannot limit itself to noting that one of the Parties maintains that the Convention applies, while the other denies it; and whereas in the present case the Court must ascertain whether the breaches of the Convention alleged by Yugoslavia are capable of falling within the provisions of that instrument and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain pursuant to Article IX (cf. Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, I.C.J Reports 1996 (II), p. 810, para. 16);
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);
41. Whereas the Court is therefore not in a position to find, at this stage of the proceedings, that the acts imputed by Yugoslavia to the Respondent are capable of coming within the provisions of the Genocide Convention; and whereas Article IX of the Convention, invoked by Yugoslavia, cannot accordingly constitute a basis on which the jurisdiction of the Court could prima facie be founded in this case;2
[p. ] 45. Whereas the Court has found above that it had no prima facie jurisdiction to entertain Yugoslavia's Application, either on the basis of Article 36, paragraph 2, of the Statute or of Article IX of the Genocide Convention; and whereas it has taken the view that it cannot, at this stage of the proceedings, take account of the additional basis of jurisdiction invoked by Yugoslavia; and whereas it follows that the Court cannot indicate any provisional measure whatsoever in order to protect the rights claimed by Yugoslavia in its Application.
46. Whereas, however, the findings reached by the Court in the present proceedings in no way prejudge the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves; and whereas they leave unaffected the right of the Governments of Yugoslavia and Belgium to submit arguments in respect of those questions;3
[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.
[pp. D.O. Kreca] 14.1. ... As far as the nature of the proceedings for the indication of provisional measures is concerned, they are surely not designed for the purpose of the final and definitive establishment of the jurisdiction of the Court. That is why in the practice of the Court "prima facie jurisdiction" is almost uniformly referred to when the indication of provisional measures is involved. Although the explicit definition of "prima facie jurisdiction" is of course hard to find in the Court's jurisprudence, its constitutive elements are relatively easy to determine.
The determinant "prima facie" itself implies that what is involved is not a definitely established jurisdiction, but a jurisdiction deriving or supposed to be normally deriving from a relevant legal fact which is defined in concreto as the "title of jurisdiction". Is reference to the "title of jurisdiction" sufficient per se for prima facie jurisdiction to be constituted? It is obvious that the answer to this question must be in the negative.
But, it could be said that the "title of jurisdiction" is sufficient per se to constitute prima facie jurisdiction except in case "the absence of jurisdiction on the merits is manifest" (Fisheries Jurisdiction (United Kingdom v. Iceland), Order of 17 August 1972, p. 15, para. 15; Fisheries Jurisdiction (Federal Republic of Germany v. Iceland), Order of 17 August 1972, p. 33, para. 16).
In other words, in question is the case when absence of jurisdiction is obvious and manifest stricto sensu, i.e., when States try to use the Court in situations when there is no ground for jurisdiction whatsoever.
Well established jurisprudence of the Court clearly shows that the absence of temporal element of jurisdiction of the Court, even if manifest, does not exclude jurisdiction of the Court if the temporal defect can be easily remedied.
[pp. D.O. Kreca] 14.2. Is it possible to argue that in the case in hand the reserve ratione temporis in the Yugoslav declaration of acceptance of compulsory jurisdiction of the Court is of such a nature that one could say that the "absence of jurisdiction on the merits" is manifest?
There is no doubt that there exists a fundamental difference between the Parties concerning the qualification of the nature of the armed attack on the Federal Republic of Yugoslavia. The Respondent finds that two months of bombing and other acts aimed against the Federal Republic of Yugoslavia represent "a continued situation", an inextricable organic unity of a variety of acts, while Yugoslavia maintains that in question is a
"breach of an international obligation ... composed of a series of actions or omissions in respect of separate cases, [that] occurs at the moment when that action or omission of the series is accomplished which establishes the existence of the composite act." (The International Law Commission's Draft Articles on State Responsibility, Part 1, Articles 1-35, Art. 25 (2), p. 272.)
In this respect, the Application has invoked Article 25 (2), of the Draft Articles on State Responsibility, prepared by the International Law Commission, which stipulates, inter alia, that:
"the time of commission of the breach extends over the entire period from the first of the actions or omissions constituting the composite act not in conformity with the international obligation and so long as such actions or omissions are repeated." (Ibid.)
This fundamental difference in the outlook on the armed attack on the Federal Republic of Yugoslavia represents, legally speaking, "a disagreement over a point of law ... a conflict of legal views or of interests between two persons" as defined in the Mavrommatis Palestine Concessions (Judgment No. 2, 1924, P.C.I.J. Series A, No. 2, p. 11).
Consequently, in question is a dispute between the Parties, which is not, per se, a matter of jurisdiction, in particular not a matter of prima facie jurisdiction; however, the Courts decision on this dispute may have an effect on its jurisdiction ratione temporis.
The Court, faced by a dispute of this kind, theoretically had two options at its disposal:
(a) to resolve it lege artis. This possibility is, from the aspect of the Court's well settled jurisprudence, only theoretical. Because we are dealing here with a matter which, as a rule, is not solved in the proceedings for the indication of provisional measures but in the procedure dealing with the merits of the case;
(b) to establish, as it has become customary for the Court, that there is a disagreement over a point of law, but that it
"cannot make definitive findings either of fact or of law on the issues relating to the merits, and the right of the Parties to contest such issues at the stage of the merits must remain unaffected by the Court's decision" (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, para. 41, p. 126).
However, the Court has chosen a third, and, in my opinion, the least acceptable solution. The Court did not enter into the resolution of the case in hand; moreover, it has not even determined its basic features, nor established that the dispute, by its nature, is not appropriate for being dealt with in the proceedings the main purpose of which is to preserve the rights of either Party, rights to be confronted at the merits stage of the case. But, it has simply accepted one of the conflicting legal views and thus made an interesting turnaround - by entering the sphere of interim judgment, without a formal judgment.
| 1 | See, mutatis mutandis, Orders of 2 June 1999, Legality of Use of Force Yugoslavia v. Canada (§ 20), Yugoslavia v. France (§ 20), Yugoslavia v. Germany (§ 20), Yugoslavia v. Italy (§ 20), Yugoslavia v. Netherlands (§ 21), Yugoslavia v. Portugal (§ 20), Yugoslavia v. United Kingdom (§ 20), Yugoslavia v. Spain (§ 20), Yugoslavia v. United States of America (§ 20). |
| 2 | See, mutatis mutandis, Orders of 2 June 1999, Legality of Use of Force, Yugoslavia v. Canada (§§ 37-40), Yugoslavia v. France (§§ 25-28), Yugoslavia v. Germany (§§ 25-28), Yugoslavia v. Italy (§§ 25-28), Yugoslavia v. Netherlands (§§ 38-41), Yugoslavia v. Portugal (§§ 37-40), Yugoslavia v. United Kingdom (§§ 33-36). |
| 3 | See, mutatis mutandis, Orders of 2 June 1999, Legality of Use of Force, Yugoslavia v. Canada (§§ 41-42), Yugoslavia v. France (§§ 32-34), Yugoslavia v. Germany (§§ 32-33), Yugoslavia v. Italy (§§ 32-34), Yugoslavia v. Netherlands (§§ 45-46), Yugoslavia v. Portugal (§§ 44-45(, Yugoslavia v. United Kingdom (§§ 37-38)]. |
