ICJ REJECTS YUGOSLAVIA'S REQUEST FOR ORDER TO HALT USE OF FORCE BY UNITED STATES, DISMISSES CASE
Press Release
ICJ/583
ICJ REJECTS YUGOSLAVIA'S REQUEST FOR ORDER TO HALT USE OF FORCE BY UNITED STATES, DISMISSES CASE
19990603 THE HAGUE, 2 June (ICJ) -- Today, the International Court of Justice (ICJ) rejected the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia (FRY) in the case concerning Legality of Use of Force (Yugoslavia v. United States of America). The decision was taken by twelve votes to three.In its Order, the Court, having found that it manifestly lacked jurisdiction to entertain the case, decided to dismiss it. It ordered by twelve votes to three that the case be removed from the List.
Since the Court included on the Bench no judge of the nationality of Yugoslavia, that State appointed a judge ad hoc.
Background information
On 29 April 1999 Yugoslavia filed an Application instituting proceedings against the United States of America "for violation of the obligation not to use force", accusing that State of bombing Yugoslav territory "together with other Member States of NATO" (see Press Release ICJ/569). On the same day, it submitted a request for the indication of provisional measures, asking the Court to order the United States of America to "cease immediately its acts of use of force" and to "refrain from any act of threat or use of force" against the FRY.
As a basis for the jurisdiction of the Court, Yugoslavia invoked Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly on 9 December 1948, as well as Article 38, paragraph 5, of the Rules of Court. Article IX of the Genocide Convention provides that disputes between the contracting parties relating to the interpretation, application or fulfilment of the Convention shall be submitted to the International Court of Justice. As to Article 38, paragraph 5, of the Rules of Court, it provides that when a State files an application against another State which has not accepted the jurisdiction of the Court, the application is transmitted to that other State, 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.
Reasoning of the Court
In its Order, the Court first emphasizes that it is "deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background" of the dispute and "with the continuing loss of life and human suffering in all parts of Yugoslavia". It declares itself "profoundly concerned with the use of force in Yugoslavia", which "under the present circumstances . . . raises very serious issues of international law". While being "mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and [its] Statute", the Court "deems it necessary to emphasize that all parties before it must act in conformity with their obligations under the United Nations Charter and other rules of international law, including humanitarian law".
The Court then points out that it "does not automatically have jurisdiction over legal disputes between States" and that "one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction". It cannot indicate provisional measures without its jurisdiction in the case being established prima facie (at first sight).
Concerning Article IX of the Genocide Convention, the Court states that it is not disputed that both Yugoslavia and the United States of America are parties to that Convention, but that when the United States ratified the Convention on 25 November 1988, it made a reservation. That reservation provides that with reference to Article IX, before any dispute to which the United States is a party may be submitted to the jurisdiction of the Court, "the specific consent of the United States is required in each case". However, in this case, the United States has indicated that it had not given specific consent and that it would not do so. Since the Genocide Convention does not prohibit reservations and since Yugoslavia did not object to the reservation made by the United States, the Court considers that Article IX manifestly does not constitute a basis of jurisdiction in the case, even prima facie.
As to Article 38, paragraph 5, of the Rules of Court, the Court stresses that, in the absence of consent by the United States, it cannot exercise jurisdiction in the case, even prima facie.
The Court concludes that it "manifestly lacks jurisdiction to entertain Yugoslavia's Application" and that "it cannot therefore indicate any provisional measure whatsoever". It adds that "within a system of consensual jurisdiction, to maintain on the General List a case upon which it appears certain that the Court will not be able to adjudicate on the merits would most assuredly not contribute to the sound administration of justice".
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The Court finally observes that "there is a fundamental distinction between the question of the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law". "The former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties". It emphasizes that "whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law, including humanitarian law" and that "any disputes relating to the legality of such acts are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter, is left to the parties". In this context, "the parties should take care not to aggravate or extend the dispute". The Court reaffirms that "when such a dispute gives rise to a threat to the peace, breach of the peace or act of aggression, the Security Council has special responsibilities under Chapter VII of the Charter".
Composition of the Court
The Court was composed as follows in the case: Vice-President Weeramantry, Acting President; President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreca; Registrar Valencia-Ospina.
Judges Shi, Koroma and Vereshchetin have appended declarations to the Court's Order. Judges Oda and Parra-Aranguren have appended separate opinions. Judge ad hoc Kreca has appended a dissenting opinion.
The text of the declarations and a brief summary of the opinions will be published later as an addendum to the present Press Communiqué. The full text of the Order, declarations and opinions appears on the Court's website (http://www.icj-cij.org).
The nine other cases concerning Legality of Use of Force submitted by Yugoslavia to the Court form the subject of separate press releases.
Information Office: Mr. Arthur Witteveen, Secretary of the Court (tel: + 31 70 302 23 36). Mrs. Laurence Blairon, Information Officer (tel: + 31 70 302 23 37). E-mail address: information@icj-cij.org.
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