| III. | The International Court of Justice |
| 3. | THE PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE |
| 3.10. | Provisional Measures |
| 3.10.1. | General Questions |
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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
[pp. 347-349] 47. 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;
48. 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 and to determine
whether those circumstances require the indication of further provisional
measures to be taken by the Parties for the protection of rights under the
Genocide Convention; whereas however the Court 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;
49. Whereas in paragraph 45 of its Order of 8 April 1993 the Court concluded
that there was a grave risk of acts of genocide being committed and that
Yugoslavia and Bosnia-Herzegovina, whether or not any such acts in the past may
be legally imputable to them, were under a clear obligation to do all in their
power to prevent the commission of any such acts in the future;
50. Whereas Article I of the Genocide Convention, quoted by the Court in the
same paragraph of its Order of 8 April 1993, 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;
51. Whereas, as the Court recorded in its Order of 8 April 1993, the crime
of genocide "shocks the conscience of mankind, results in great losses to
humanity ... and is contrary to moral law and to the spirit and aims of the
United Nations", in the words of General Assembly resolution 96 (I) of 11
December 1946 on "The Crime of Genocide";
52. Whereas, since the Order of 8 April 1993 was made, and despite that
Order, and despite many resolutions of the Security Council of the United
Nations, great suffering and loss of life has been sustained by the population
of Bosnia-Herzegovina in circumstances which shock the conscience of mankind and
flagrantly conflict with moral law and the spirit and aims of the United
Nations;
53. Whereas, since the Order of 8 April 1993 was made, the grave risk which
the Court then apprehended of action being taken which may aggravate or extend
the existing dispute over the prevention and punishment of the crime of
genocide, or render it more difficult of solution, has been deepened by the
persistence of conflicts on the territory of Bosnia-Herzegovina and the
commission of heinous acts in the course of those conflicts;
54. Whereas the Security Council of the United Nations in resolution 819
(1993) of 16 April 1993 took note of the Court's Order of 8 April 1993
in which the Court indicated that the Federal Republic of Yugoslavia (Serbia and
Montenegro) should take all measures within its power to prevent the commission
of the crime of genocide, and whereas the Security Council in that resolution
reaffirmed its condemnation of all violations of international humanitarian law,
in particular the practice of "ethnic cleansing";
55. Whereas the Security Council of the United Nations in resolution 859
(1993) of 24 August 1993 which, inter alia, affirmed the continuing
membership of Bosnia-Herzegovina in the United Nations, reaffirmed the principle
of the unacceptability of the acquisition of territory by force and recalled
that of individual responsibility for the perpetration of war crimes and other
violations of international humanitarian law;
56. Whereas the Security Council of the United Nations, by resolutions 808
(1993) of 22 February 1993 and 827 (1993) of 25 May 1993, has
established an international tribunal for the prosecution of persons responsible
for serious violations of humanitarian law committed in the territory of the
former Yugoslavia;
57. Whereas the Court, while taking into account, inter alia, the
replies of the two Parties to a question put to them at the hearings as to what
steps had been taken by them "to ensure compliance with the Court's Order
of 8 April 1993", is not satisfied that all that might have been done has
been done to prevent commission of the crime of genocide in the territory of
Bosnia-Herzegovina, and to ensure that no action is taken which may aggravate or
extend the existing dispute or render it more difficult of solution;
58. Whereas, as the Court has previously found,
"When the Court finds that the situation requires that measures of this
kind should be taken, it is incumbent on each party to take the Court's
indication seriously into account ..." (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of
America), Judgment, I.C.J. Reports 1986, p. 144, para. 289);
whereas this is particularly so in such a situation as now exists in
Bosnia-Herzegovina where no reparation could efface the results of conduct which
the Court may rule to have been contrary to international law;
59. Whereas the present perilous situation demands, not an indication of
provisional measures additional to those indicated by the Court's Order of 8
April 1993, set out in paragraph 37 above, but immediate and effective
implementation of those measures;
[p. 356 S.O. Shahabuddeen] The idea of a provisional measure of
protection which may have the same effect as the main remedy is conceptually
distinct from the idea of an interim judgment. The object of the former is the
protection of the right in issue pending the final adjudication of the claim;
the object of the latter is to give to the plaintiff interim relief by way of
advance payment on account of a liability which is admitted or reasonably clear
but not yet precisely quantified. Provisions for interim payment exist in some
legal systems 1. By contrast, as the Court pointed out in the Factory at
Chorzów case, a request which is really for relief by way of interim
judgment is "not covered by the terms of the provisions of the Statute and
Rules..." of the Court (P.C.I.J., Series A, No. 12, p. 10).
[p. 358 S.O. Shahabuddeen] If media material is admissible at the
merits stage, as in the United States Diplomatic and Consular Staff in
Tehran case, it should be no less admissible at the provisional measures
stage, as in this case. In fact, media material was also presented to the Court
at the provisional measures stage in that case (I.C.J. Pleadings, United
States Diplomatic and Consular Staff in Tehran, p. 45, and p. 67, Appendix C,
and I.C.J. Reports 1979, p. 10, para. 7).
[pp. 367-368 S.O. Shahabuddeen] The material issue is whether
Yugoslavia has in fact implemented the measures as the Court expected it would,
whether or not they are legally binding. A distinction may be drawn between the
indication of measures and the measures indicated. The question
relating to the "indication" is whether it has the effect of a
judicial decision which attaches a legal obligation to a party. The question
relating to the "measures" is whether they represent a judicial
finding as to what needs to be done to preserve the rights in contest. In my
opinion, even if the indication is not legally binding, the measures possess the
character of a judicial finding as to what was required to preserve those rights
pendente lite, that finding having been made after due hearing by the
Court sitting as a court of law in exercise of a specific power conferred by
law. It follows that any non-implementation, even if not in breach of a legal
obligation, represents an inconsistency with that judicial finding.
Now, the Court has no power to penalize such an inconsistency; but, in my
view, the inconsistency is something to be taken into account by it in
evaluating the quality of the evidence presented by the non-implementing party
in support of a request for provisional measures to preserve substantially the
same rights which the Court's original Order was in the first instance intended
to protect. Unless the Court, which has an undoubted discretion in deciding
whether it would grant a request, can take account of a non-implementation in
that way, there is little point in the provision in Rule 78 of the Rules of
Court to the effect that
"[t]he Court may request information from the parties on any matter
connected with the implementation of any provisional measures it has indicated"
(discussed in Geneviève Guyomar, Commentaire du règlement de
1a Cour internationale de Justice, 1983, pp. 495-496).
This point having been reached, it is useful to consider the following view
expressed by Dumbauld:
"When a refusal to furnish information or to carry out provisional
measures is put on record, apparently a presumption arises which takes the place
of direct evidence in the sense that it legitimates a conclusion derived from
the fact in question by reasonable inference." (Dr. E. Dumbauld, Interim
Measures of Protection in International Controversies, 1932, p. 161;
footnotes omitted.)
Yugoslavia, not having implemented the provisional measures indicated by the
Court, now seeks provisional measures of its own. I do not go so far as to
suggest that the non-implementation necessarily or automatically debars
Yugoslavia from making its request (as well it might in a corresponding case in
some domestic jurisdictions); but it is, in my view, something which legitimates
the conclusion that, in all the circumstances, it would not be correct for the
Court, at this stage, to act on the material presented by Yugoslavia in support
of the particular measures it requests.
[p. 397 S.O. Ajibola] The discretionary power of the Court, even
though statutory, flows from Article 75 of the Rules of Court. Paragraph 1 of
the Article makes it clear that proprio motu, the Court may at any time
indicate provisional measures if the circumstances of the case so dictate and
that such measures ought to be complied with by any or all the parties involved
in the case. Paragraph 2 goes further to empower the Court to indicate measures
that are in whole or part different from those requested by the .parties, if in
its discretion such measures ought to be taken or complied with by the parties.
This Article gives the Court a wider discretionary power than does Article 41 of
the Statute of the Court. It is an Article which to a great extent allows the
Court to function as it ought to and in turn derives its validity from Article
30, paragraph 1, of the Statute of the Court which states that: "The Court
shall frame rules for carrying out its functions. In particular, it shall lay
down rules of procedure."
Apart, therefore, from the discretionary and inherent powers of the Court,
these rule-making powers are necessary to enable the Court to function as a
Court and to ensure that orders issued by it are obeyed. I believe that the
Court thus has the power statutorily and inherently to ensure compliance with
whatever interlocutory directives or orders it may make in any matter of which
it is seised. If this power were not available to the Court or were denied to
it, an absurd situation might occur, especially having regard to the provisions
of Article 74, paragraph 3, whereby the Court may persistently be inundated with
requests for indications of provisional measures by the same parties, when in
fact an earlier order has not been complied with.
[p. 399 S.O. Ajibola] However, I think that the time has come when
this Court should make a definitive pronouncement on this issue. After all, the
principle of stare decisis is not applicable in the Court. In fact a
careful examination of Article 41, paragraph 1, will suggest that it is prima
facie and patently devoid of any ambiguity. In the plain and ordinary meaning of
the form of words employed, the use of the words "shall" and "power"
is undoubtedly mandatory and imperative, giving the Court an indisputable
prerogative to indicate provisional measures. The phrase "if it considers
that circumstances so require" relates to the discretionary exercise of
such power, to be used or applied in deserving cases. The reason why the power
was given is clearly apparent in the later part of the Article; and that is to
enable the Court to function as it should by preserving the "rights"
of either party. Logic and common sense would consider it ridiculous and absurd
for the Court to be unable to preserve the rights of the parties pending the
final judgment.
[p. 402 S.O. Ajibola] Article 94, paragraph 2, deals only with the
judgment and not incidental orders or interlocutory matters. If the word judgment
is meant to include an order of this nature under discussion, I must beg to
differ. Here I take the view that those who drafted the Charter meant a final
decision of the Court or perhaps a final judgment. If we think of the word
decision as a generic term encompassing orders and judgments, then I think
Article 94, paragraph 1, is better referred to since that paragraph deals with
decisions. But there again, I wish to observe that paragraph l is
somehow weak and too general because the use of the word "undertake"
tends to imply an appeal to the "moral obligation" of a State. A more
imperative word like "ought", "must", "shall" and "under
obligation to" should perhaps have been employed. What again puzzles me
with the wording of that section as finally adopted is the fact that the word "decision"
was used in paragraph 1 and "judgment" used in paragraph 2.
[p. 410 S.O. Lauterpacht] 9. In practical terms it is, of course,
inherent in the urgent treatment of a request for provisional measures that
normally it is not possible to treat the jurisdictional and substantive issues
as extensively as in other incidental proceedings. For one thing, much of the
evidence put before the Court is likely to be ex parte and the
Respondent may not be able to react to it in detail. But there is nothing in the
Statute or the Rules that prevents the Court from dealing as fully as it wishes
with requests for provisional measures. Nor is this situation changed by the
oft-employed formula, repeated in paragraph 60 of the Court's Order of today's
date, to the effect that the decision given upon the request "in no way
prejudges" issues of jurisdiction, admissibility or substance. This means
that the Court reserves to the parties the right to return to such issues at the
merits stage of the case and to itself the right to amend its findings of fact
or its holdings of law in the light of such later consideration. But it does not
mean that the Court is precluded, in dealing with a request for provisional
measures, from reaching relevant findings of fact or holdings of law which will
remain valid and effective unless and until subsequently altered. It is in this
sense that one should also read the statement, in paragraph 48 of today's Order,
that the Court "cannot make definitive findings of fact or of imputability"
and that:
"the right of each Party to dispute the facts alleged against it, to
challenge the attribution to it of responsibility for these facts, and to submit
arguments in respect of the merits, must remain unaffected by the Court's
decision".
In other words, the qualification or limitation upon the effect of the
Court's findings at the interim protection stage is procedural rather than
substantive. Though such findings may later be changed, they are not in the
interim ineffective nor should they be disregarded.
| 1 | See, for example, the position in English law as set out in The Supreme Court Practice 1993, London, 1992, Vol. 1, Order 29/9ff. |
