| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.5. | Provisional Measures and Merits |
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Application of the Convention
on the Prevention and Punishment
of the Crime of Genocide,
Provisional Measures,
Order of 8 April 1993,
I.C.J. Reports 1993, p. 3
[p. 19] 34. Whereas the power of the Court to indicate provisional
measures under Article 41 of the Statute of the Court has as its object to
preserve the respective rights of the parties pending the decision of the Court,
and presupposes that irreparable prejudice shall not be caused to rights which
are the subject of dispute in judicial proceedings; and whereas it follows that
the Court must be concerned to preserve by such measures the rights which may
subsequently be adjudged by the Court to belong either to the Applicant or to
the Respondent;
35. Whereas the Court, having established the existence of a basis on which
its jurisdiction might be founded, ought not to indicate measures for the
protection of any disputed rights other than those which might ultimately form
the basis of a judgment in the exercise of that jurisdiction; whereas
accordingly the Court will confine its examination of the measures requested,
and of the grounds asserted for the request for such measures, to those which
fall within the scope of the Genocide Convention;
[p. 22] 44. Whereas the Court, in the context of the present
proceedings on a request for provisional measures, has in accordance with
Article 41 of the Statute to consider the circumstances drawn to its attention
as requiring the indication of provisional measures, but cannot make definitive
findings of fact or of imputability, and the right of each Party to dispute the
facts alleged against it, to challenge the attribution to it of responsibility
for those facts, and to submit arguments in respect of the merits, must remain
unaffected by the Court's decision;
45. Whereas Article I of the Genocide Convention provides that:
"The Contracting Parties confirm that genocide, whether committed in
time of peace or in time of war, is a crime under international law which they
undertake to prevent and to punish";
whereas all parties to the Convention have thus undertaken "to prevent
and to punish" the crime of genocide; whereas in the view of the Court, in
the circumstances brought to its attention and outlined above in which there is
a grave risk of acts of genocide being committed, Yugoslavia and
Bosnia-Herzegovina, whether or not any such acts in the past may be legally
imputable to them, are under a clear obligation to do all in their power to
prevent the commission of any such acts in the future;
46. Whereas the Court is not called upon, for the purpose of its decision on
the present request for the indication of provisional measures, now to establish
the existence of breaches of the Genocide Convention by either Party, but to
determine whether the circumstances require the indication of provisional
measures to be taken by the Parties for the protection of rights under the
Genocide Convention; and whereas the Court is satisfied, taking into account the
obligation imposed by Article I of the Genocide Convention, that the indication
of measures is required for the protection of such rights; and whereas Article
75, paragraph 2, of the Rules of Court recognizes the power of the Court, when a
request for provisional measures has been made, to indicate measures that are in
whole or in part other than those requested, or that ought to be taken or
complied with by the party which has itself made the request;
[pp. 26-27 Decl. Tarassov] However, I regret that I have not
been able to vote for the provision of paragraph 52 A (2) that the Government of
the Federal Republic of Yugoslavia should in particular "ensure" that
any military, paramilitary or irregular armed units which "may" be
directed or supported by it, and organizations or persons which "may be
subject to its control, direction or influence" do not commit any acts of
genocide, "of conspiracy to commit genocide", of incitement to
genocide or of "complicity in genocide". In my view, these passages of
the Order are open to the interpretation that the Court believes that the
Government of the Federal Republic of Yugoslavia is indeed involved in such
genocidal acts, or at least that it may very well be so involved. Thus, on my
view, these provisions are very close to a pre-judgment of the merits, despite
the Court's recognition that, in an Order indicating provisional measures, it is
not entitled to reach determinations of fact or law. Moreover, these passages
impose practically unlimited, ill-defined and vague requirements for the
exercise of responsibility by the Respondent in fulfilment of the Order of the
Court, and lay the Respondent open to unjustifiable blame for failing to comply
with this interim measure. The lack of balance in these provisions is the
clearer in view of the way in which the Court has singled out one element of the
population of Bosnia and Herzegovina. The Applicant when referring to the
measures that it sought (paragraph 3 of the Order) and the legal rights that it
sought to have protected (paragraph 36 of the Order) did not specify a
particular group for protection, but rather and quite properly used such terms
as "the citizens" or "the People" of Bosnia and Herzegovina.
