| 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 |
¤
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. 342] 35. 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 should 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;
36. Whereas the Court, having established the existence of one basis on
which its jurisdiction might be founded, namely Article IX of the Genocide
Convention, and having been unable to find that other suggested bases could
prima facie be accepted as such, 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 the jurisdiction thus prima facie
established;
[pp. 344-345] 41. Whereas three of the measures requested by the
Applicant (those numbered 4, 6 and 8 on the list in paragraph 6 above 1)
provide that the Government of Bosnia-Herzegovina "must have the means"
to prevent the commission of genocide, and to defend its people against
genocide, and "must have the ability to obtain military weapons, equipment,
and supplies" from the other parties to the Genocide Convention; whereas
the Applicant has made it clear in its written and oral observations that it
bases these proposed measures on the Genocide Convention and on the right of
self-defence referred to in Article 51 of the United Nations Charter, and on its
claim that because of the arms embargo laid down by the Security Council by
resolution 713 (1991), the Applicant is unable to protect its people from
genocide; whereas a similar claim was before the Court when it examined the
first request for provisional measures, when some of the requested measures were
directed to the question of self-defence, but were not regarded by the Court as
within the scope of the jurisdiction under Article IX of the Genocide
Convention; whereas Article 41 of the Statute empowers the Court to indicate
measures "which ought to be taken to preserve the respective rights of
either party", and for the reasons given in paragraph 39 above this means
measures which ought to be taken by one or both parties to the case; whereas
however it is clear that the intention of the Applicant in requesting these
measures is not that the Court indicate that the Respondent ought to take
certain steps for the preservation of the Applicant's rights, but rather that
the Court make a declaration of what those rights are, which "would clarify
the legal situation for the entire international community", in particular
the members of the United Nations Security Council; whereas accordingly this
request must be regarded as outside the scope of Article 41 of the Statute;
[pp. 345-346] 42. Whereas two of the measures requested by the
Applicant (those numbered 2 and 3 on the list in paragraph 6 above)2 relate
to the possibility of "partition and dismemberment", annexation or
incorporation of the sovereign territory of Bosnia and Herzegovina (and this
question is also referred to in measures numbers 6 and 7); whereas it appears to
the Court, from the definition of genocide in Article II of the Genocide
Convention (set out, so far as relevant, in paragraph 39 of the Court's Order of
8 April 1993), that its essential characteristic is the intended destruction of
"a national, ethnical, racial or religious group", and not the
disappearance of a State as a subject of international law or a change in its
constitution or its territory; whereas, accordingly, the Court is unable to
accept, for the purpose of the present request for the indication of provisional
measures, that a "partition and dismemberment", or annexation of a
sovereign State, or its incorporation into another State, could in itself
constitute an act of genocide and thus a matter falling within the jurisdiction
of the Court under Article IX of the Genocide Convention; whereas, on the other
hand, in so far as it is the Applicant's contention that such "partition
and dismemberment", annexation or incorporation will result from genocide,
the Court, in its Order of
8 April 1993 has already indicated that Yugoslavia should "take all
measures within its power to prevent commission of the crime of genocide",
whatever might be its consequences;
| 1 | As to the wording of the requested provisional measures see the summary
in the appendix. |
| 2 | As to the wording of the requested provisional measures see the summary
in the appendix. |
