On June 2, 1999, the International Court
of Justice (ICJ) rejected, by clear majorities,
requests filed by Yugoslavia against ten NATO
member states on April 29, 1999, asking the
ICJ to order the NATO members to "cease immediately
[their] acts of use of force" and to "refrain
from any act of threat or use of force" against
Yugoslavia. The Chinese, Russian and Sri Lankan
Judges voted against one or more of the Court's
Orders, as did the Yugoslav Judge ad hoc
appointed especially for these cases by Yugoslavia.
The ICJ, consisting of 15 judges, is the principal
judicial organ of the United Nations and is
seated in The Hague, the Netherlands.
In the cases against Spain and the United
States, the Court held that it manifestly
lacked jurisdiction, and that the cases should
be removed from the General List of ICJ cases.
In the cases against Belgium, Canada, France,
Germany, Italy, the Netherlands, Portugal
and the United Kingdom, while the Court found
that there was no prima facie jurisdiction
--and thus it could not order provisional
measures-- it decided to remain seised of
these cases.
The ICJ has discretion to indicate provisional
measures of protection (comparable to an injunction
under domestic law), aimed at preserving the
respective rights of either party pending
the Court's final decision, only if it appears
that it has prima facie jurisdiction
over a case. In addition, there must be urgency
to the extent that, unless provisional measures
are indicated, there will be a risk of irremediable
harm that could defeat the purpose of hearing
the case if it reaches the merits. An Order
concerning provisional measures does not,
in and of itself, establish jurisdiction or
reject jurisdiction (absent manifest lack
thereof) in a case and does not preclude a
subsequent finding that the Court lacks or
possesses jurisdiction. These cases marked
the first time in the Court's history that
it dismissed requests for provisional measures
for lack of prima facie jurisdiction.
Depending on the defendants in each case,
Yugoslavia relied on three separate arguments
to establish the Court's prima facie
jurisdiction.
First, Yugoslavia contended that the Court
has jurisdiction over all the parties and
the claims based on Article IX of the 1948
Convention on the Prevention and Punishment
of the Crime of Genocide (Genocide Convention),
to which Yugoslavia and the ten NATO members
are parties. Article IX states that disputes
between the parties to the Genocide Convention
relating to the interpretation, application,
or fulfillment of the Convention shall be
submitted to the ICJ at the request of any
party to the dispute. The NATO parties argued
that Yugoslavia failed to make substantial
allegations that the alleged actions of any
individual NATO party fell within the provisions
of the Genocide Convention and that the Yugoslav
complaint lacked any showing of the requisite
intent on the part of any NATO party to commit
genocide. The NATO parties also argued that
the relief that Yugoslavia asked for, relating
to the use of force, was unrelated to the
subject-matter of the Genocide Convention,
so that the jurisdictional clause contained
in the Convention could not serve to establish
jurisdiction over the relief requested by
Yugoslavia. In addition, Spain and the U.S.
pointed out that they filed reservations together
with their ratification of the Genocide Convention
barring the Court's jurisdiction in their
cases.
The Court pointed out that 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,
which defines genocide as the intended destruction
of a national, ethnical, racial or religious
group as such. It did not appear to the Court
at the present stage of the proceedings that
the NATO bombings entailed the element of
intent towards a group as such (i.e., the
Serbs), so that it was not in a position to
find, at this stage of the proceedings, that
the imputed acts were capable of coming within
the provisions of the Genocide Convention.
Accordingly, Article IX did not constitute
a basis on which the Court's jurisdiction
could prima facie be founded in the
ten cases. In relation to Spain and the U.S.,
given the reservations validly filed by these
states with respect to Article IX, the Court
found that it was manifestly without jurisdiction.
Consequently, the Court dismissed the cases
filed by Yugoslavia against Spain and the
United States and ordered that they be removed
from the General List of ICJ cases. The Court
allowed the cases against the other eight
NATO parties to remain on its docket, on the
basis that the Court's finding of a lack of
prima facie jurisdiction at a preliminary
stage of the proceedings is not a definitive
ruling on the question of the Court's jurisdiction
to deal with the merits of the cases, leaving
unaffected the rights of the parties to submit
arguments in respect thereof.
Second, in relation to France, Germany, Italy
and the United States, Yugoslavia relied on
Article 38, paragraph 5, of the ICJ Rules
of Court as a jurisdictional basis. According
to that provision, when a state files an application
against another state that has not accepted
the jurisdiction of the ICJ, the application
is transmitted to the state named as respondent,
but no action is taken in the proceedings
unless and until that state has accepted the
Court's jurisdiction for the purposes of the
case (so-called prorogated jurisdiction or
forum prorogatum). However, none of
the states involved indicated that it was
willing to accept the Court's jurisdiction
for the purposes of these proceedings. Consequently,
the Court stressed that, in the absence of
consent by France, Germany, Italy and the
United States, it could not exercise jurisdiction
on the basis of forum prorogatum, not
even prima facie.
Third, in relation to Belgium, Canada, the
Netherlands, Portugal, Spain and the United
Kingdom, Yugoslavia contended that the ICJ
has jurisdiction based on the acceptance of
Yugoslavia and those states of the compulsory
jurisdiction of the Court under Article 36,
paragraph 2, of the ICJ Statute. For their
part, the NATO parties pointed out that Yugoslavia's
declaration accepting the Court's compulsory
jurisdiction, deposited with the UN Secretary-General
only a few days before the institution of
these proceedings, restricted recognition
of the Court's jurisdiction to disputes and
events arising after April 25, 1999, the date
on which Yugoslavia signed its declaration.
The Court agreed with the NATO parties and
found that, given that the bombings began
on March 24, 1999, the legal dispute between
Yugoslavia and the NATO parties arose well
before April 25, 1999. Consequently, the reservation
ratione temporis contained in Yugoslavia's
own declaration led the Court to conclude
that the declarations made by the parties
in these proceedings did not constitute a
basis on which the Court's jurisdiction could
prima facie be founded in the cases
against Belgium, Canada, the Netherlands,
Portugal, Spain and the United Kingdom.
In view of its finding that the Yugoslav
declaration did not apply ratione temporis,
the Court concluded that it did not need to
consider the question whether Yugoslavia was
a member state of the United Nations and,
by virtue of such membership, whether it was
a party to the ICJ Statute. Belgium, Canada,
the Netherlands, Portugal, Spain and the United
Kingdom all relied on resolutions of the General
Assembly and the Security Council of the United
Nations in arguing that the Federal Republic
of Yugoslavia is not a member state of the
United Nations or a party to the ICJ Statute
as a successor state to the former Socialist
Federal Republic of Yugoslavia and that Yugoslavia
cannot, therefore, rely on the Court's Statute
in establishing jurisdiction in these cases.
Only two judges addressed the issue of Yugoslavia's
UN membership, arguing against it, whereas
the Yugoslav Judge ad hoc believed
that Yugoslavia is a member of the United
Nations.
Notwithstanding its rejection of the Yugoslav
requests, the Court expressed its deep concern
with the human tragedy in Kosovo and with
the loss of life and human suffering "in all
parts of Yugoslavia." The Court declared itself
profoundly concerned with the use of force
in Yugoslavia, which "under the present circumstances
.. raises very serious issues of international
law." The Court emphasized that all parties
before it must act in conformity with their
obligations under the UN Charter and other
rules of international law, including humanitarian
law. Finally, the Court reminded the parties
that they should take care not to aggravate
or extend the dispute and that, when such
a dispute gives rise to a threat to the peace,
breach of the peace or act of aggression,
the UN Security Council has special responsibilities
under Chapter VII of the UN Charter.
About the Authors:
* White & Case LLP, New York; formerly
of the ICJ Registry.
** Director of Research and Outreach, The
American Society of International Law.
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