World Court Rejects Yugoslav Requests to Enjoin Ten NATO Members from Bombing Yugoslavia

Dr. Peter H.F. Bekker and Christopher J. Borgen
June 17, 1999
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.