407

SEPARATE OPINION OF JUDGE LAUTERPACHT

OUTLINE
Paragraphs
I. INTRODUCTION 1-13
1. The unprecedented human dimension of this case 2
2. The Court’s concern with the gravity and urgency of the case 3
3. The position of the ad hoc judge 46
4. The nature of requests for provisional measures 7-13
IT. JURISDICTION 14-37
1. The Genocide Convention 17
2. The letter of 8 June 1992 18
3. The reference to the customary and conventional laws of war,
etc. 19
4. The “Minorities” Treaty, 1919 20-23
5. Forum prorogatum 24-37
IU. THE SUBSTANCE OF THE REQUEST 38-70
1. The nature of the evidence to be taken into consideration in
relation to requests for provisional measures of protection 38-46
2. The importance of stating essential facts, albeit in summary
form 47-49
3. Some pertinent background 50-66
4. The involvement of the Respondent 67
5. Has genocide been committed? 68-70
IV. CONSIDERATION OF THE MEASURES SOUGHT IN THE CURRENT
REQUEST 71-121
1. The first request 72-73
2. The second request | 74-79
3. The third request 80-83
4. The fourth request 84-107
A. The effect of the Security Council resolution 98-104
B. The procedural question 105-107
5. The fifth request 108-115
6. The sixth request 116-118
7. The seventh, eighth and ninth requests 119
8. The tenth request 120-121
V. CONCLUSIONS 122-124

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I. INTRODUCTION

1. Although I would in some respects (as will appear later) have pre-
ferred the Court to have gone into greater detail than it has, I have none-
theless felt able to vote in favour of the operative parts of the Court’s
Order. As the overall balance of the present opinion is essentially suppor-
tive, rather than contradictory, of the reasoning of the Court, it may more
appropriately be called a separate than a dissenting opinion.

1. The Unprecedented Human Dimension of This Case

2. In the present proceedings the Court is confronted by a case with a
human dimension of a magnitude without precedent in its history. This
case is not to be compared with litigation relating to maritime or territorial
limits, nor with assertions of State responsibility for denials of justice,
wrongful expropriation or the destruction of an aircraft. Even such cases
as those relating to South West Africa and to Military and Paramilitary
Activities in and against Nicaragua, though involving the fundamental
human rights and security of many individuals, cannot be likened in scale
to the deliberate infliction of death, injury and dreadful personal suffer-
ing that has marked and continues to mark the present conflict in Bosnia-
Herzegovina.

2. The Court’s Concern with the Gravity and Urgency of the Case

3. So to describe the character of the present case is not to say that the
Court should approach it with anything other than its traditional impar-
tiality and firm adherence to legal standards. At the same time, the cir-
cumstances call for a high degree of understanding of, and sensitivity to,
the situation and must exclude any narrow or overly technical approach to
the problems involved. While the demands of legal principle cannot be
ignored, it has to be recalled that the rigid maintenance of principle is
not an end in itself but only an element — albeit one of the greatest
importance — in the constructive application of law to the needs of the
ultimate beneficiaries of the legal system, individuals no less than the
political structures in which they are organized.

3. The Position of the Ad Hoc Judge

4. What is true for the Court as a whole is every bit as compelling for an
ad hoc judge. The fact that he is appointed by a party to the case in no way

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reduces the operative force of his solemn declaration under Article 20 of
the Statute, made in the same form as that of the titular judges, that he will
exercise his powers impartially and conscientiously.

5. At the same time, it cannot be forgotten that the institution of the
ad hoc judge was created for the purpose of giving a party, not otherwise
having upon the Court a judge of its nationality, an opportunity to join in
the work of this tribunal. The evidence in this regard of the attitude of
those who participated in the drafting of the original Statute of the Perma-
nent Court of International Justice can hardly be contradicted. This has
led many to assume that an ad hoc judge must be regarded as a representa-
tive of the State that appoints him and, therefore, as necessarily pre-
committed to the position that that State may adopt.

6. That assumption is, in my opinion, contrary to principle and cannot
be accepted. Nonetheless, consistently with the duty of impartiality by
which the ad hoc judge is bound, there is still something specific that dis-
tinguishes his role. He has, I believe, the special obligation to endeavour
to ensure that, so far as is reasonable, every relevant argument in favour of
the party that has appointed him has been fully appreciated in the course
of collegial consideration and, ultimately, is reflected — though not
necessarily accepted — in any separate or dissenting opinion that he
may write. It is on that basis, and in awareness that the tragedy underlying
the present proceedings imposes on me an especially grave responsibility,
that I approach my task.

4. The Nature of Requests for Provisional Measures

7. Counsel for Yugoslavia, during his address to the Court in the
course of the hearings on the first request, described the proceedings as
“incidental”, coupling with that description the adjectives “summary”
and “peremptory”, seemingly with the implication that the Court should
limit as much as possible its consideration of the substance of the case and
that whatever the Court might say or order could have little or no lasting
legal effect. In the same line of thought, counsel for Yugoslavia further
contended that Bosnia-Herzegovina was really asking, in the guise of a
request for provisional measures, for “an interim judgment on the merits
of the case” — something which he appeared to consider was not permis-
sible. A few words are, therefore, needed about the character of requests
and orders for provisional measures.

8. Nowhere in the Statute or Rules of Court are requests for provi-
sional measures specifically described as “incidental”. The only use of
that word is in the heading of Section D of Part ITI of the Rules, “Inciden-
tal Proceedings”. This covers not only interim protection but also prelimi-
nary objections, counter-claims, intervention, special references to the
Court and discontinuance. About such matters as preliminary objections,
counter-claims and intervention there is evidently nothing of an insub-

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stantial, summary or superficial nature. They involve material points of
gravity to which the Court at the appropriate time gives full and detailed
consideration. Orders of the Court relating to them are binding. Between
these items and requests for interim protection there is no difference in
kind except in the necessarily threshold quality of the latter, the urgency
that attaches to them, as is recognized in Article 74 of the Rules, and, pos-
sibly, the degree to which the measures indicated are binding.

9. In practical terms it is, of course, inherent in the urgent treatment ofa
request for provisional measures that normally it is not possible to treat
the jurisdictional and substantive issues as extensively as in other inciden-
tal 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 mea-
sures. 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 jurisdic-
tion, 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 reach-
ing 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.

10. This analysis is to some extent foreshadowed and supported by cer-
tain observations of Judge Jiménez de Aréchaga in his declaration in the
Nuclear Tests case. Though addressed only to the question of jurisdiction,

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his remarks are no less applicable to other questions of law and fact that
may arise in the course of the proceedings on a request for provisional
measures:

“{Ijn view of the urgent character of the decision on provisional
measures, it is obvious that the Court cannot make its answer depen-
dent on a previous collective determination by means of a judgment
of the question of its jurisdiction on the merits.

This situation places upon each Member of the Court the duty to
make, at this stage, an appreciation of whether — in the light of the
grounds invoked and of the other materials before him — the Court
will possess jurisdiction to entertain the merits of the dispute. Froma
subjective point of view, such an appreciation or estimation cannot be
fairly described as a mere preliminary or even cursory examination of
the jurisdictional issue: on the contrary, one must be satisfied that this
basic question of the Court’s jurisdiction has received the fullest possible
attention which one is able to give to it within the limits of time and of
materials available for that purpose.” (I.C.J. Reports 1973, p. 107;
emphasis added.)

11. The freedom of the Court to reach conclusions of fact or law when
considering requests for provisional measures is not affected by the argu-
ment (as presented by the Respondent) that the particular request is really
a request for an interim judgment. The Respondent has in this connection
invoked the refusal by the Permanent Court of International Justice of a
request by Germany in the Factory at Chorzôw case (P.C_LJ., Series À,
No. 12, p. 10) for an interim payment of 30 million marks, in a case arising
out of the expropriation of an industrial undertaking in breach of a treaty,
on the ground that the request was “designed to obtain an interim judg-
ment on the merits”. However, this case was distinguished in the hostages
case (United States Diplomatic and Consular Staffin Tehran, I.C.J. Reports
1979, p. 7) in which the United States sought in its original application
both the release of the hostages and reparation for their detention. In its
request for provisional measures the United States sought the immediate
release of the hostages. The Court made the requested Order uninhibited
by the fact that it was thereby ordering something that substantially pre-
empted the remedy sought in the main case.

12. The Respondent has also raised the objection that “the Applicant
seems to be trying to reopen matters already decided”. It is true that there
is a significant measure of overlap between what the Applicant sought,
and to some extent obtained, in its request of 20 March 1993 and the
request it made on 27 July 1993. But whatever may be the degree of over-

‘lap — and it is not total — the question is not really simpliciter whether the
subject-matter of the first request may be revisited. It is, rather, the ques-
tion of whether that subject-matter may be revisited in the light of clear

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evidence that the Respondent has continued the course of conduct which
the Court has prohibited and has, therefore, acted in breach of the first
Order.

13. The situation falls within the scope of Article 75, paragraph 3, of the
Rules of Court, which permits the “making [of] a fresh request in the same
case based on new facts” — and it has been so held by the Court in para-
graph 22 of today’s Order. The rejection by the then President of the Court
of the second Nicaraguan request for interim measures in the Military
and Paramilitary Activities in and against Nicaragua case (see I.C.J. Reports
1986, pp. 143-144, paras. 286-289) must be distinguished in the light of all
the circumstances of that case. They were — especially in terms of scale,
urgency and threat to human life — markedly less exigent than those in
the present case.

II. JURISDICTION

14. The special circumstances attending this case suggest that some
explanation is required of the general basis of the Court’s operation. The
Court can only act in a case if the parties, both applicant and respondent,
have conferred jurisdiction upon it by some voluntary act of consent. This
can be given in various forms: a treaty undertaking to that effect; a con-
tracting-in to the compulsory jurisdiction of the Court under the so-called
“optional clause” (Article 36 (2) of its Statute); or an acceptance of juris-
diction by a respondent through its conduct following upon a unilateral
commencement of proceedings by an applicant — a method known as
forum prorogatum. Whatever form the consent may take, the range of mat-
ters that the Court can then deal with is limited to the matters covered by
that consent. Thus, jurisdiction conferred on the Court by the Genocide
Convention can extend only to cases involving the interpretation, applica-
tion or fulfilment of the Convention. Even if the complaints relate to
appalling atrocities amounting to violations of, for example, the Geneva
Conventions on the Protection of Victims of War, of the various human
rights conventions or even of principles of customary international law,
they cannot be brought before the Court on the basis of the jurisdictional
provision in the Genocide Convention unless they are also acts covered by
the terms of that Convention.

15. The possibility must be recognized and accepted that there are a
number — alas, a very great number — of substantive rights protected by
international law which, for want of a suitable jurisdictional link to the
Court, cannot be made the subject of consideration and decision by it.
This is not the fault of the Court. It is simply a reflection of the present
unsatisfactory state of the international legal system — a reflection, many

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consider, of a lack of appropriate political will on the part of States, not a
reflection of any shortcoming in the Court. If jurisdiction exists, the Court
will exercise it. That, after all, is what the Court is for.

16. In the present case, the Applicant has invoked at different times a
number of different possible sources of jurisdiction: (1) in its original
request, it referred to Article IX of the Genocide Convention; (2) in the
same document it also relied upon a letter dated 8 June 1992 from the
Presidents of the Republic of Montenegro and of the Republic of Serbia to
the President of the Arbitration Commission of the International Confer-
ence for Peace in Yugoslavia; (3) in the context of its present request the .
Applicant added that,

“jurisdiction ... is also grounded in the Customary and Conven-
tional International Laws of War and International Humanitarian
Law, including but not limited to the four Geneva Conventions of
1949, the First Additional Protocol of 1977, the Hague Regulations
on Land Warfare of 1907, and the Nuremberg Charter”;

and (4), also in the course of the present proceedings, reference was made
to the Treaty of Saint-Germain-en-Laye of 1919 providing for the protec-
tion of minorities in the Kingdom of the Serbs, Croats and Slovenes.
Further to the four grounds mentioned above, there is (5) the matter
of the possible operation of forum prorogatum, as raised in the question
put to both Parties during the course of the hearings on 26 August 1993.
I shall deal with each of these items in turn.

1. The Genocide Convention

17. In paragraph 26 of its Order of 8 April 1993 the Court accepted that
Article IX of the Genocide Convention appears to afford a basis on which
the jurisdiction of the Court might be founded. At the same time, the
Court made it clear that this was only “to the extent that the subject-matter
of the dispute relates to ‘the interpretation, application or fulfilment’” of
the Convention, including disputes “‘relating to the responsibility of a
State for genocide or for any of the other acts enumerated in Article IIT
of the Convention”. The Court’s Order of today’s date confirms that deci-
sion. I agree with this conclusion but would wish to add a further consid-
eration. In determining whether particular acts or omissions amount to
““genocide or ... any of the other acts enumerated in Article III’ of the
[Genocide] Convention” it must be borne in mind that conduct which may
prima facie appear not to fall within those categories may in truth do
so if such conduct can in fact be shown to cause, or contribute to, with
sufficient directness, genocide or genocidal activity.

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2. The Letter of 8 June 1992

18. This letter was considered by the Court in paragraphs 27-32 of its
Order of 8 April 1993. The Court concluded that it was “unable to regard
the letter of 8 June 1992 as constituting a prima facie basis of jurisdiction
in the present case”. Nonetheless, the Applicant again invoked this letter
in the present proceedings. The arguments which it has adduced in this
connection do not appear to provide any basis for altering the reasoning
or conclusion of the Court in its Order of 8 April 1993. The Court has so
held in paragraph 32 of today’s Order and I agree.

3. The Reference to Customary and Conventional
Laws of War, etc.

19. Recourse by the Applicant to customary international law and the
treaties on the laws of war, etc., as a ground of jurisdiction appears to be
founded on some misconception. The customary international law and
the treaties invoked by the Applicant, though no doubt pertinent in a situa-
tion of international hostilities as a source of substantive rules of law
applicable to the conduct of the warring parties, can serve only that pur-
pose. The mere existence of relevant substantive rules of law does not by
itself confer in respect of matters governed by them any jurisdiction what-
soever upon any international tribunal. As already stated, there are many
rules of law the operation of which is not supplemented by any provision
conferring jurisdiction upon any international tribunal. The provisions
cited by the Applicant fall into this category. The Court so holds in para-
graph 33 of today’s Order and I agree. The only text mentioned by the
Applicant which had any jurisdictional function was the Nuremberg
Charter. That document established the jurisdiction of the International
Military Tribunal in respect of the trial of major war criminals after the
Second World War. Its function has been exhausted for nearly half a cen-
tury and it can play no role in the present dispute.

4. The “Minorities” Treaty, 1919

20. Lastly, the Applicant, in an amendment to its second request filed
on 6 August 1993, introduced as a ground of jurisdiction in the present
case the “Treaty between the Allied and Associated Powers and the King-
dom of the Serbs, Croats and Slovenes (Protection of Minorities)” signed
at Saint-Germain-en-Laye on 10 September 1919. This called for the pro-
tection of the minorities in Yugoslavia and provided for the compulsory
settlement of disputes by the Permanent Court of International Justice.

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21. There are several difficulties about recourse to this Treaty in the
present case. The Court refers to some of them in paragraphs 29-31 of
today’s Order. Here, it is sufficient to mention two. The first is substantive.
The specific obligation under the Treaty mentioned by the Applicant is
contained in Article 2:

“The Serb-Croat-Slovene State undertakes to assure full and com-
plete protection of life and liberty to all inhabitants of the Kingdom
without distinction of birth, nationality, language, race or religion.”

The discharge of this obligation is limited territorially to “inhabitants of
the Kingdom”. Although there are other possibly pertinent provisions in
the Treaty which are not expressed in terms of “all inhabitants of the King-
dom”, they nonetheless refer to “Serb-Croat-Slovene nationals”. Clearly
the people of Bosnia-Herzegovina, principally the Bosnian Muslims,
whose rights are the subject of the present proceedings, are not “inhabi-
tants of the Kingdom” nor are they “Serb-Croat-Slovene nationals”.

22. The second difficulty, though procedural in character, is no less
formidable. Article 11 of the Treaty confers jurisdiction upon the Perma-
nent Court of International Justice in respect of disputes “of opinion as to
questions of law or fact arising out of these Articles”. The Articles in ques-
tion include those relating to the protection of minorities. At the same
time, however, the right to bring proceedings under the Articles is limited
to “any one of the Principal Allied and Associated Powers or any other
Power, amember of the Council of the League of Nations”. The Applicant
in this case clearly does not fall into either of these categories.

23. The Applicant has sought to overcome this procedural obstacle on
the basis of the provision in Article 16 of the Treaty that

“All rights and privileges accorded by the foregoing Articles to the
Allied and Associated Powers shall be accorded equally to all States
Members of the League of Nations.”

The Applicant argues that the fact that this Article appears at the end of
Chapter II of the Treaty dealing with the commercial and other matters
does not mean that its operation is limited to the matters covered in that
Chapter, the more so as the Article contains provisions on language and
ratification which evidently apply to the Treaty as a whole. In my view, if
the intention had been to confer upon all Members of the League of
Nations the same procedural rights as Article 11 confers upon the Princi-
pal Allied and Associated Powers in respect of the minorities provisions
of Chapter I, the most likely place in which that would have been done
would have been Article 11 itself, not Article 16. But even if the applica-
bility of Article 16 is conceded this does not help the Applicant. It still
remains in the position of not having been a Member of the League of
Nations.

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5. Forum Prorogatum

24. There remains for consideration in connection with jurisdiction the
question of forum prorogatum. This is the possibility that if State A com-
mences proceedings against State B on a non-existent or defective juris-
dictional basis, State B can remedy the situation by conduct amounting to
an acceptance of the jurisdiction of the Court. The principal illustration
of that process is the Corfu Channel case (Preliminary Objection,
LCJ. Reports 1947-1948, pp. 27-28) in which the United Kingdom uni-
laterally instituted proceedings against Albania on the basis of a recom-
mendation of the Security Council. Albania, though entering an objection
to the Court’s jurisdiction on the ground that the case should have been
referred to the Court by special agreement, nevertheless stated in the same
document that it accepted the jurisdiction of the Court for that case. The
Court held that that acceptance was effective as a “voluntary and indis-
putable acceptance of the Court’s jurisdiction” and observed also that
“neither the Statute nor the Rules require that this consent should be
expressed in any particular form” (ibid., p. 27).

25. The episode which gives rise to the question of whether forum pro-
rogatum provides any basis for an extension of the Court’s jurisdiction in
this case is the letter dated 1 April 1993 from Mr. Vladislav Jovanovic,
Federal Minister for Foreign Affairs of Yugoslavia, to the Registrar of the
Court. Paragraph 4 reads as follows:

“The Yugoslav Government welcomes the readiness of the Inter-
national Court of Justice to discuss the need of ordering provisional
measures to bring to an end inter-ethnic and inter-religious armed
conflicts within the territory of the ‘Republic of Bosnia and Herzego-
vina’, and in this context, it recommends that the Court, pursuant to
Article 41 of its Statute and Article 73 of its Rules of Procedure, order
the application of provisional measures, in particular:

[i] to instruct the authorities controlled by A. Izetbegovic to comply
strictly with the latest agreement on a cease-fire in the ‘Republic
of Bosnia and Herzegovina’ which went into force on 28 March
1993;

fii] to direct the authorities under the control of A. Izetbegovic to
respect the Geneva Conventions for the Protection of Victims of
War of 1949 and the 1977 Additional Protocols thereof, since the
genocide of Serbs living in the ‘Republic of Bosnia and Herzego-
vina’ is being carried out by.the commission of very serious war
crimes which are in violation of the obligation not to infringe
upon the essential human rights;

[iii] to instruct the authorities loyal to A. Izetbegovic to close imme-
diately and disband all prisons and detention camps in the

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‘Republic of Bosnia and Herzegovina’, in which the Serbs are
being detained because of their ethnic origin and subjected to
acts of torture, thus presenting a real danger for their life and
health;

[iv] to direct the authorities controlled by A. Izetbegovic to allow,
without delay, the Serb residents to leave safely Tuzla, Zenica,
Sarajevo and other places in the ‘Republic of Bosnia and Herze-
govina’, where they have been subject to harassment and physi-
cal and mental abuse, and having in mind that they may suffer
the same fate as the Serbs in eastern Bosnia which was the site of
the killing and massacres of a few thousand Serb civilians;

[v] to instruct the authorities loyal to A. Izetbegovic to cease imme-
diately any further destruction of Orthodox churches and places
of worship and of other Serb cultural heritage, and to release and
stop further mistreatment of all Orthodox priests being in
prison;

[vi] to direct the authorities under the control of A. Izetbegovicto put
an end to all acts of discrimination based on nationality or reli-
gion and the practice of “ethnic cleansing’, including the discri-
mination related to the delivery of humanitarian aid, against the

>>

Serb population in the ‘Republic of Bosnia and Herzegovina’.

26. As can be seen, a number of the proposals in the paragraph relate to
matters that cannot be described as “genocide”, as genocidally related or
as necessarily causally linked with genocide. This is true of items [i], [iii],
[iv] and [v]. As for item [ii], the requirement of respect for the Geneva Con-
ventions, though overlapping with a requirement that genocide should
not be committed, goes wider than genocide; and the same is true of the
reference to discrimination in item [vi].

27. The Court is bound to ask itself, what could be the jurisdictional
basis for such proposals by the Respondent? The Respondent did not, in
its letter of 1 April 1993, make any reference to the question of jurisdic-
tion. Yet, if the proposals were seriously meant, they can only have been
put forward on the basis of some supposed ground of jurisdiction. There
are only two possibilities. One is the Genocide Convention itself, in which
case the Respondent was putting a very broad construction on the defini-
tion of genocide and on the scope of Article IX of the Convention. The
other is that the proposals may be seen as having been made in response to
the presentation by the Applicant of certain requests which went beyond
the scope of the Convention. Either way, though, the conduct of the
Respondent seems to enlarge the jurisdiction of the Court beyond the
range of matters strictly covered by an objective reading of Article [X of
the Genocide Convention. The concordant conduct of the two Parties —

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that of the Applicant in seeking by the nature of its requests to extend the
jurisdiction of the Court beyond matters strictly covered by the Genocide
Convention and that of the Respondent in doing something similar —
amounts to an acceptance of the Court’s jurisdiction by conduct to the
extent that the scope of the subject-matter of the two requests coincide.
That is to say, the scope of the jurisdiction is determined by the narrower
of the two claims, in this case, that of the Respondent.

28. Because this aspect of the case had not been specifically addressed
by either of the Parties, I considered it desirable to ascertain the views of
the Parties and accordingly put to them the following questions:

“(A) Do all the requests in the letter [of 1 April 1993] fall within the
scope of the prevention of ‘genocide’ as is defined in Article II of the
Genocide Convention?

(B) Ifthe answer to Question | is No, which requests are regarded
as not falling within that definition?

(C) Ifthe answer No is given in relation to any of the requests, on’
what basis is the Court said to have jurisdiction in respect of them
and, in particular, is the concept of forum prorogatum relevant here?”

29. The Applicant replied that “the Respondent actually broadens
jurisdiction beyond the subject-matter covered by Articles IT and IX of
the Genocide Convention” and contended that:

“the Respondent’s acceptance of this jurisdictional setting for the
first round of provisional measures . . . logically extends to any
following provisional measures which are requested within the
framework of the proceedings instituted by the 20 March 1993
Application”.

The Applicant concluded:

“In line with established jurisprudence of this Court, it is clear that
this statement establishes jurisdiction with respect to all aspects of
the situation in the Republic of Bosnia and Herzegovina connected
with armed conflicts concerning the territory of the Republic of
Bosnia and Herzegovina.”

30. The Respondent replied as follows: “The reply is contained in the
Observations of FR of Yugoslavia dated 23 August 1993 at pages 13 to 16
in paragraphs 20 to 24.” Close study of the passages referred to reveals no
reply to the first and second of the questions put to the Parties. The third
question is answered only indirectly, in paragraphs 21 and 23. In para-
graph 21 the Respondent stated:

“It is obvious that, by requiring provisional measures on 1 April
1993, the intention of the FR of Yugoslavia was not to accept the

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jurisdiction of the Court whatsoever, or to an extent beyond what is
strictly stipulated in the Genocide Convention. The argument that
the FR of Yugoslavia is estopped from raising any questions con-
cerning the jurisdiction of the Court is obviously absolutely without
foundation.”

The Respondent then quoted, in paragraph 22, a passage from the case
concerning the Anglo-Iranian Oil Co., Preliminary Objection, in which the
Court had rejected a submission made by the United Kingdom Govern-
ment to the effect:

“17. That the Iranian Government, having in its conclusions sub-
mitted to the Court for decision several questions which are not
objections to the jurisdiction of the Court and which could only be
decided if the Court had jurisdiction, has by this action conferred
jurisdiction upon the Court on the basis of the principle of forum
prorogatum.” (I.C.J. Reports 1952, p. 101.)

31. The passage quoted by the Respondent is part of a longer para-
graph the continuation of which reads as follows:

“Having filed a Preliminary Objection for the purpose of disputing
the jurisdiction, it [the Government of Iran] has throughout the pro-
ceedings maintained that Objection. It is true that it has submitted
other Objections which have no direct bearing on the question of
jurisdiction. But they are clearly designed as measures of defence which
it would be necessary to examine only if Iran’s Objection to the jurisdic-
tion were rejected. No element of consent can be deduced from such
conduct on the part of the Government of Iran. Consequently, the
Submission of the United Kingdom on this point cannot be
accepted.” (Ibid., p. 114; emphasis added.)

32. It is the content of the words emphasized above that distinguishes
the Anglo-Iranian Oil Co. case so plainly from the present one. There, the
“objections” on which the United Kingdom founded its claim of forum
prorogatum were “clearly designed as measures of defence”, the exami-
nation of which was seen as contingent upon the rejection of Iran’s objec-
tion to the jurisdiction. By contrast, in the present case, the matters raised
in the provisional measures which the Respondent proposed in its letter
of 1 April 1993 were not contingent at all, but were assertive requests.
They were not negative in their purpose, i.e., aimed at dissuading the
Court from doing something. Rather, they were positive in their object,
ie., aimed at persuading the Court to take specific measures. And those
measures, as just stated, were not ones that on their face fell within the
scope of the Genocide Convention. Some basis must, therefore, be identi-
fied by reference to which their introduction into the proceedings can be
justified.

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33. The Respondent has reminded the Court of the statement made in
the Anglo-Iranian Oil Co. case:

“The principle of forum prorogatum, if it could be applied to the
present case, would have to be based on some conduct or statement
of the Government of Iran which involves an element of consent
regarding the jurisdiction of the Court. But that Government has
consistently denied the jurisdiction of the Court.” (.C.J. Reports
1952, p. 114.)

The Respondent has then gone on to say:

“The FR of Yugoslavia does not accept the jurisdiction of the
Court in relation to customary and conventional international law of
war and international humanitarian law, including the four Geneva
Conventions of 1949, their First Additional Protocol of 1977, the
Hague Regulations on Land Warfare of 1907 and Principles estab-
lished by the Nuremberg Charter and Judgment.”

34. The question is, therefore, whether the denial by the Respondent of
the jurisdiction of the Court on any basis other than Article IX of the
Genocide Convention is sufficient to override conduct of the Respondent
which appears to be consistent only with the existence of some jurisdic-
tion of the Court on a basis other than that of the Genocide Convention.
In particular, does the above-quoted sentence amount to a sufficient
denial of the jurisdiction of the Court to negative the effect of the
Respondent’s requests in its letter of 1 April 1993 which appear, in the
words of the Court’s Order of 22 July 1952, to involve “an element of con-
sent regarding the jurisdiction of the Court” ? In my view, the insistence by
the Respondent that Article IX of the Genocide Convention is the sole
source of the Court’s jurisdiction is not persuasive. Were this insistence
valid, it would be impossible for the Respondent to justify its clear
requests for measures which fall outside the coverage of the Convention.
Yet, these requests were neither brief nor accidental. They were deliber-
ately presented to the Court as requests to which the Respondent wished
the Court to accede. The Respondent cannot blow hot and cold. It cannot
ask the Court to go beyond the limits of the Genocide Convention and
simultaneously request the Court to limit its jurisdiction to that Con-
vention.

35. Itthus becomes necessary for the Court either to attempt a reconcil-
iation of the two contradictory approaches or to choose between them. In
my opinion, in deciding upon the relationship between the particular and
the general, the general cannot be permitted entirely (if at all) to override
the particular. The solution lies, therefore, in qualifying the insistence of
the Respondent that the Court’s jurisdiction is dependent solely upon
Article IX of the Genocide Convention by acknowledging that the
Respondent has expanded the jurisdiction of the Court to the extent that

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its specific requests overlap in kind with those of the Applicant. In effect,
the Applicant, in requesting measures that pass beyond the limits of the
Genocide Convention, has made an offer to the Respondent to extend the
jurisdiction of the Court to the category of subject-matter covered by that
extension. The Respondent, by proposing counter-measures which in
some respects resemble the proposals of the Applicant, has within those
limits accepted the offer of the Applicant so to extend the jurisdiction of
the Court.

36. The Court’s conclusion in paragraph 34 of today’s Order that the
Yugoslav communication of 1 April 1993 “cannot, even prima facie, be
interpreted as ‘an unequivocal indication’ of a ‘voluntary and indisput-
able’ acceptance of the Court’s jurisdiction” is evidently influenced by the
consideration there mentioned that “the provisional measure requested
by Yugoslavia in a subsequent request, dated 9 August 1993 ..., was
directed solely to protection of asserted rights under the Genocide Con-
vention”. The reference thus made to what may be seen as a withdrawal by
the Respondent of its request for measures going beyond the scope of the
Genocide Convention suggests that the difference between the Court and
the opinion here expressed may lie principally in the effect to be attri-
buted to the request of 9 August 1993. I regard that communication as
insufficient to negative the effect of the Respondent’s communication of
1 April 1993. To this limited extent, therefore, and to my regret, I find
myself unable to agree with the Court.

37. The existence of jurisdiction on the basis of forum prorogatum has
no impact on the conclusions that I reach in relation to the ten specific
measures sought in the Applicant’s second request. However, it does form
the basis for the additional measures which, in the exercise of the power
given in Article 75 (1) of the Rules of Court to indicate measures proprio
motu, \ set out in paragraph 124 below. These are expressed in terms which
largely reflect, in the form of an indication to both Parties, the terms of the
measures sought by Yugoslavia in its communication to the Court of
1 April 1993.

III. THE SUBSTANCE OF THE REQUEST

1. The Nature of the Evidence to be Taken into Consideration in
Relation to Requests for Provisional Measures of Protection

38. When the Court made its Order of 8 April 1993 it did so without
committing itselfto any specific findings of fact, limiting itself to the state-
ment that “there is a grave risk of acts of genocide being committed”
(para. 45). In the Order of today’s date the Court has gone somewhat

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further by “taking into account the development of the situation in
Bosnia-Herzegovina” (para. 22), observing that “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”
(para. 52), noting that “the grave risk” which the Court apprehended in
its Order of 8 April 1993 of “action being taken which may aggravate or
extend the existing dispute ... 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” (para. 53) and stating that it
“is not satisfied that all that might have been done has been done to
prevent the 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” (para. 57).

39. In my view, if the Court considered that it had before it sufficient
material on the basis of which it could make the generalized findings of
fact set out above, it also had before it sufficient material to set out in
greater detail the grim and gruesome realities of the situation which alone
can explain why the Applicant has returned to the Court with this second
request for interim measures. It will already be apparent that in my opin-
ion the additional accumulation of evidence since the date of the first
Order and the generally uniform content of the reports as well as their
undeniable character, necessitates a fuller statement of the facts. As a
necessary preliminary to this, attention must be given to the nature of the
evidence which the Court may properly take into account at this stage of
the proceedings.

40. In most of the previous requests for provisional measures there has
been relatively little disagreement about the facts, the principal issue (the
question of jurisdiction apart) being whether, on the facts as known, an
indication of such measures was required. Questions of evidence were,
therefore, not in the forefront of the discussion. In the present case,
Bosnia-Herzegovina has produced much evidence of the events which
it alleges, all of it in writing and most of it in secondary form. Yugoslavia
has produced no evidence to rebut it.

41. The question is how much account should be taken of this evidence.
There is no fundamental legal difference in the rules of evidence appli-
cable to the consideration of the merits of a case and those applicable in
proceedings relating to provisional measures. There is, however, a practi-
cal difference in that in the latter there may be less time for the applicant to
prepare its evidence in the most cogent form, or for critical scrutiny of that
evidence by the respondent and the Court, than there is in the extended
merits stage of a case. But it does not follow that evidence produced at the

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provisional measures stage is a priori to be treated as less adequate or
less acceptable than evidence produced at the merits stage or that it is
incapable of sustaining more than the most generalized findings of fact.

42. Inthe present case, the written evidence adduced by Bosnia-Herze-
govina falls into the following categories: written primary evidence, such
statements directly attributable to the Yugoslavia authorities, statements
by United Nations, UNHCR or EC officials who have themselves been in
the area, or newspaper reports by journalists who were eye-witnesses of
events; and written secondary evidence, such as statements of fact
adopted by organs of the United Nations, for example, in the form of
preambular paragraphs to resolutions of the General Assembly or the
Security Council. There is no reason why the Court should not take both
such categories of evidence into account, giving more or less weight to par-
ticular items, according to the particular circumstances. The doctrine of
judicial notice is known in many legal systems. Tribunals may not and
do not close their eyes to facts that stare them in the face. In the Military
and Paramilitary Activities in and against Nicaragua case the Court
recalled its own reference in the case of the United States Diplomatic and
Consular Staff in Tehran to facts which:

“are, for the most part, matters of public knowledge which have
received extensive coverage in the world press and in radio and tele-
vision broadcasts from Iran and other countries (1.C.J. Reports 1980,
p. 9, para. 12)” (CJ. Reports 1986, pp. 40-41, para. 63).

On an earlier occasion, though not speaking in terms of “judicial notice”,
the Court, in the Fisheries case, had had recourse to the concept of
“notoriety of facts” (1.C.J. Reports 1951, pp. 138-139).

43. What matters for present purposes is the general concordance of evi-
dence. This consideration also weighed with the Court in its decisions in
1980 and 1986:

“On the basis of information, including press and broadcast
material, which was ‘wholly consistent and concordant as to the
main facts and circumstances of the case’, the Court was able to
declare that it was satisfied that the allegations of fact were well-
founded.” (1.C.J. Reports 1986, p. 41, para. 63, citing C.J. Reports
1980, p. 10, para. 13.)

In this case, the evidence all points conclusively in one direction. More-
over, the Respondent has not sought in this Court to deny that atrocities of
the character and on the scale described have occurred.

44. Two additional considerations are relevant here. The first is that the
present proceedings do not relate to the indictment of named individuals

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upon criminal charges in relation to which guilt has to be proved beyond
reasonable doubt.

45. The second consideration has a particular bearing on the question
of the complicity of the Respondent in rendering assistance to the Serbian
forces in Bosnia-Herzegovina. As the bulk of the accessory conduct in
question must necessarily have originated within the territory of the
Respondent, it is obvious that it is beyond the power of the Applicant to
obtain absolute proof of it. This being so, the situation resembles that in
the Corfu Channel case (Merits, I.C.J. Reports 1949, p. 4) in which, at
page 18, the Court discussed the consequences flowing from the inability
of a party to secure evidence from areas outside its control:

“{Tjhe fact of this exclusive territorial control exercised by a State
within its frontiers has a bearing upon the methods of proof available
to establish the knowledge of that State as to such events. By reason of
this exclusive control, the other State, the victim of a breach of interna-
tional law, is often unable to furnish direct proof of facts giving rise to
responsibility. Such a State should be allowed a more liberal recourse to
inferences of fact and circumstantial evidence. This indirect evidence is
admitted in all systems of law, and its use is recognized by interna-
tional decisions. It must be regarded as of special weight when it is
based on a series of facts linked together and leading logically to a
single conclusion.” (Emphasis added.)

46. I will, therefore, in this opinion take into account those of the items
presented in the Applicant’s narrative that are supported by appropriate
evidence. Assertions made by Yugoslavia will be approached in the same
way. If supported by appropriate evidence they will be accepted. Where
there is a conflict of evidence then, of course, it will be necessary to make a
choice by reference to openly stated and objectively applied criteria.

2. The Importance of Stating Essential Facts, Albeit in Summary Form

47. To refrain from confronting the facts simply because the proceed-
ings are ones for provisional measures would suggest a degree of formal-
ism inconsistent with one of the tasks of the international judicial process
in circumstances so unusual as those involved here. In the present case, so
public are the facts and so urgent is the need which they occasion that, to
all intents and purposes, no clear line can be drawn between the grant of
provisional measures and the grant of the remedy sought in the main
action. A denial of sufficient provisional measures now may well, in prac-
tice, be tantamount to a negation of the rights claimed in the main action.
If, as has been said, the grant of interim measures should not prejudice the

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outcome of the consideration of the merits, so equally it must be recog-
nized that the denial of interim measures also should not prejudice the
outcome of the consideration of the merits. It is, therefore, a matter of
necessity to examine the facts to which the measures ordered by the Court
relate.

48. There is also a reason of policy for looking at the facts — a policy
which the principal judicial organ of the United Nations can properly
take into account. As is well known, the justification for the war crimes
trials following the Second World War was seen to lie not solely in the
requirement that the perpetrators of heinous crimes should be brought to
justice. It lay also in the belief in the necessity of placing on historical
record the character and extent of those crimes so that they should never
be forgotten and that the recollection of the sacrifice of the victims should
not be dimmed by time. The establishment and, it may be hoped, the activ-
ity of a United Nations War Crimes Tribunal for former Yugoslavia may
in due course perform a similar function in relation to the events within
the area previously comprised within that State. But this possibility does
not, in my view, relieve this Court of the duty of explaining, even in the
context of a request for provisional measures of protection, some of the
basic features of the situation. It may, of course, be said that such a record
will appear in the Court’s treatment of the case at the merits stage. How-
ever, as has been pointed out on behalf of Bosnia-Herzegovina, there is a
distinct possibility that the merits stage of these proceedings will not be
reached. What will those in later years who are not well instructed in our
contemporary history understand of the real thrust and significance of the
Court’s Order if they cannot read therein some narrative of the circum-
stances which have led to it?

49. At the same time, it must be realized that, important though the
record is, limitations of time, space and immediate relevance preclude a
comprehensive or even extended narrative of events. What follows is
necessarily sharply focused on developments pertinent to the litigation
instituted by the Applicant and is brief even at the risk of some over-
simplification.

3. Some Pertinent Background

50. Before 1990 Yugoslavia, or the Socialist Federal Republic of
Yugoslavia as it was then called (and as the Respondent still calls itself),
consisted of six constituent republics — Serbia, Montenegro, Slovenia,
Croatia, Bosnia-Herzegovina and Macedonia — together with two
autonomous provinces. Within its population of some 23 million persons,
the Serbs were the largest element numbering over 8 million persons, of
whom three-quarters lived in Serbia. In Bosnia-Herzegovina there lived
some 1.9 million Muslims, 1.3 million Serbs and 0.75 million Croats.

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51. Inthe autumn of 1990 the power of the central authorities in Yugo-
slavia began to disintegrate in the face of separatist tendencies in Slovenia,
Croatia, Bosnia-Herzegovina and Macedonia. On 25 June 1991 Slovenia
and Croatia declared their independence. Soon afterwards the federal
authorities began military action to suppress the Slovenian secession and
fighting broke out in Croatia, especially in areas principally inhabited by
Serbs.

52. The present Government of Yugoslavia is essentially a Serbian
authority closely tied to the Government of Serbia; and the Yugoslav
People’s Army (JNA) today is a Serbian army controlled by the
Serbian authorities of the present Government of Yugoslavia and fully
supportive of Serbian aims.

53. The general identification of the position of the federal Yugoslavia
authorities with that of the Serbs was demonstrated by a statement made
in the Assembly of the Socialist Federal Republic of Yugoslavia on
19 March 1992 by Dr. B. Jovic, who had earlier been the Serbian member
of the Yugoslav Presidency:

“The Serbian people... demanded respect and protection of their
legitimate national and civil rights. When Croatia decided to secede
from Yugoslavia and form its own independent State, the Serbs
inhabiting their ethnical territories in this republic decided to break
away from Croatia and remain within Yugoslavia...

Faced with the serious danger of a more widespread conflict, the
Presidency of the Socialist Federal Republic of Yugoslavia
instructed the Yugoslav People’s Army to prevent such conflicts by
standing as a neutral force between the parties in conflict. However,
the Croatian authorities, instead of accepting such a mission of the
Yugoslav People’s Army openly attacked not only the Serbian
people, which it branded as a band of outlaws, but also ... the
Yugoslav People’s Army which it termed an army of occupation.
This is how war was thrust upon Yugoslavia. In such a situation it was
essential to protect the Serbian people from extermination.”

What was there said about the connection between the Yugoslav Govern-
ment and the Serbs in Croatia appears to be no less true in relation to
Bosnia-Herzegovina.

54. International awareness of this relationship is reflected in the
demand made by the Security Council in paragraphs 3 and 4 of resolu-
tion 752 (1992) on 15 May 1992 “that all forms of interference from out-
side Bosnia-Herzegovina, including by units of the Yugoslav People’s
Army (JNA), as well as elements of the Croatian Army, cease immedi-
ately...” and “that those units of the Yugoslav People’s Army (JNA) and
elements of the Croatian Army now in Bosnia-Herzegovina must ... be
withdrawn”.

55. For virtually 18 months now, from February 1992 to the present

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date, fighting has continued in Bosnia-Herzegovina between the Serbs
there, supported by Serbs in Serbia, by the Government of the Socialist
Federal Republic of Yugoslavia and by the Yugoslav National Army, on
the one side, and the Bosnian Government and its supporters, mainly
Muslims, on the other. During this period the Muslims in Bosnia-Herze-
govina have been exposed to slaughter and injury, to rape, torture and
starvation, to forced expulsion and to the destruction of their homes on an
appalling scale — all directed against them because they are Muslims.
Town after town and village after village with exclusively or dominantly
Muslim populations have been attacked and the Muslim population
either killed or expelled by the Serbs: Goradze, Srebrenica, Bihac, Olovo,
Kladanj, Tuzla, Banja Luka, Zepa, Sandzak, Mostar, Sarajevo, Maglaj,
Konijc, Shippergai, Brcko — to name only those that have figured most
prominently in the reports.

56. The involvement of the Government of Yugoslavia (Serbia and
Montenegro) or of the Socialist Federal Republic of Yugoslavia in all of
this activity cannot be gainsaid and has been internationally noted. In the
preamble to General Assembly resolution 47/121 of 18 December 1992
there appears an assessment of the Yugoslav Government’s role that
received the positive support of 102 Members of the United Nations and
which, though 57 Members abstained in the vote, attracted no negative
votes:

“Strongly condemning Serbia and Montenegro and their surrogates
in the Republic of Bosnia and Herzegovina for their continued non-
compliance with all relevant United Nations resolutions,

Deeply regretting that the sanctions imposed by the Security Coun-
cil have not had the desired effect of halting the aggressive acts by
Serbian and Montenegrin irregular forces and the direct and indirect
support of the Yugoslav People’s Army for the aggressive acts in the
Republic of Bosnia and Herzegovina. . .” (emphasis added).

57. Similarly, in the material provided by Bosnia-Herzegovina in its
current request for the indication of provisional measures there are some
16 indications of Yugoslav involvement in Serbian activity in Bosnia-
Herzegovina of which the most important is a clear acknowledgment to
this effect made by Yugoslavia itself. But, first, the earlier indications:

— On 16 April 1993 short-wave radio operators in Srebrenica reported
that former Yugoslavian army troops crossed the Drina River separat-
ing Bosnia from Serbia and mounted their own attack on Srebrenica.

— On 18 April 1993 the US Ambassador to the UN, Mrs. Madeleine
Albright, was reported as having said that the sanctions imposed by

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the UN on Yugoslavia were a means of bringing home to the Bosnian
Serbs and their allies in Serbia and Montenegro the price they would
have to pay for their genocidal practices.

— On 19 April 1993 Lord Owen, the Mediator appointed by the Euro-
pean Community, was reported as having confirmed that supplies to
the Bosnian Serbs were coming through Belgrade and suggested selec-
tive bombing strikes to prevent Belgrade from giving the Bosnian
Serbs logistical support.

— On 20 April 1993 Senator Biden, a US Senator, referred in the
US Senate Foreign Relations Committee to intelligence reports indi-
cating that the Yugoslav National Army in Serbia was “directly
responsible for at least part of the shelling of Srebrenica”.

— On 27 April Lord Owen was reported as saying that “If Yugoslavia
applied the UN resolutions and cut the Bosnian Serbs from the supply
sources such a step could lead to peace fairly quickly.” (Emphasis
added.)

58. On or about 8 May 1993 two communiqués were issued by, respec-
tively, the Government of the Republic of Serbia and the Government of
Yugoslavia (Serbia and Montenegro) which contained direct and con-
crete statements of the involvement of those two, well-nigh indistinguish-
able, authorities in the provision of arms and equipment to the Bosnian
Serbs.

59. The communiqué of the Government of Serbia said, inter alia:

“Firmly believing that a just battle for freedom and the equality of
the Serbian people is being conducted in the Serb Republic [i.e., the
so-called “Republic of Srpska” proclaimed by the Bosnian Serbs
within Bosnia-Herzegovina], the Republic of Serbia has been
unreservedly and generously helping the Serb Republic, in spite
of the enormous problems it had to face due to the sanctions intro-
duced against it by the UN Security Council.

Since the conditions for space [sic. Query, peace] have been met,
the Government also agreed that any further economic depletion of
the Republic of Serbia is now unjustified and unsupportable, and
that future aid to the Serb Republic should be limited to food and
medicines in such quantities as the competent ministries will deter-
mine. The Government of the Republic of Serbia also believes that,
as the conditions for establishing peace have been reached, any
further aid in funds, fuel, raw materials etc., provided until now
with great sacrifices by the Republic of Serbia itself, is not justified
any more.”

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60. The communiqué of the Federal Government said, inter alia:

“Bearing in mind the immediate adverse effects of UN Security
Council resolution 820 on the economic power of the FRY and the
social position of the majority of its citizens, the Federal Government
is forced to adjust all future aid to the Republic of Srpska with its
objective economic possibilities and to reduce it exclusively to con-
tingents of food and medicaments.”

61. The content of these two communiqués is evidence, falling into the

category of “declarations against interest” which are of special cogency
(see Military and Paramilitary Activities in and against Nicaragua (Nicara-
guav. United States of America), I.C.J. Reports 1986, p. 42, para. 69), that,

at

any rate up to the date on which the communiqués were issued, the

Federal Republic and the Republic of Serbia had been providing assist-
ance to the Serbs in Bosnia in breach of the Security Council embargo.

62. Any claims that after that date such assistance must have ceased

does not seem compatible with evidence of subsequent Serbian
behaviour:

On 13 May 1993 the Washington Post reported that over a period of
five hours on 12 May at least a half-a-dozen large tankers and a score
or more of other trucks were seen crossing Serbia to the Bosnian Serb
enclosure of Bijeljina, used as a base and staging area for Serbian
attacks against Bosnia. And this was said to be confirmed by “many
observers”.

On 18 May 1993 CNN reported that “diplomats suggested that mili-
tary supplies were still passing from the ‘rump’ Yugoslavia to the Bos-
nian Serbs”.

On 19 May 1993 The Independent reported that Serbian President
Milosevic refused to allow UN observers on the Drina River because
the move would highlight Belgrade’s non-enforcement of a pro-
claimed blockade against the Bosnian Serbs. A week later the New
York Times carried a similar report.

On 23 May 1993 The Sunday Times reported that “along the narrow,
winding roads of Bosanska Raca, large numbers of supplies from the
rump Yugoslavia to the Bosnian Serbs was witnessed”.

Lastly, on 24 June 1993 The Independent reported that James Gow, a
military specialist at King’s College, University of London, consid-
ered that the Bosnian Serbs have about 60,000 troops, reinforced by up
to 20,000 soldiers from the Yugoslav (Serbia and Montenegro) Army,
that the Bosnian Serbs received crucial support from irregular militias

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based in Serbia and that the Yugoslav (Serbia and Montenegro) Army
assisted the Bosnian Serbs with helicopter missions.

63. Since May 1993 there has been evidence that the Croats in Bosnia-
Herzegovina, who had previously been fighting alongside the Muslims
against the Serbs, were themselves joining in the attack upon the Mus-
lims — seemingly in fulfilment of some agreement between Serbs and
Croats to divide Bosnia-Herzegovina between themselves at the expense
of the Muslims. This, however, does not serve to reduce the responsibility
of the Serbs, or of the Yugoslav authorities supporting them, for what they
have done and are continuing to do. It merely creates a situation in which
the liability of those who lend assistance to the Bosnian Croats may
become involved.

64. As will readily be seen upon a comparison of the material set out in
paragraphs 57-62 above with the content of the Bosnian second request
for provisional measures, the content of those paragraphs has been taken
from that request with little more than minor verbal changes. This is
because it is the only material on this aspect of the dispute (as opposed to
the accusations of genocide made by the Serbs against the Bosnians) that
has been presented to the Court; and it has not been rebutted in any cir-
cumstantial detail by the Respondent. No doubt it can be said of several of
the items here set out that they are only secondary reports derived from
sources that are not sufficiently identified. However, some of the items,
notably those attributed to Lord Owen, are not open to that criticism. And
the communiqués of 8 May 1993 of the Serbian and Yugoslav Govern-
ment also appear to be authentic.

65. It is the overall impact of the reports taken as a whole that matters.
One must ask: are the secondary reports likely to be inaccurate or falsi-
fied? What interest would the reputable newspapers in which the reports
appeared have in inventing news of this kind? And why should so many
invent the same news, pointing the same accusatory fingers at the same
parties?

66. But even if the reports are true, do they really establish the involve-
ment of the Respondent in the activities of the Bosnian Serbs? And even if
the reports do establish such involvement, was it an involvement in geno-
cide or genocidal activities ?

4. The Involvement of the Respondent

67. As to the first of these questions, it seems impossible to avoid the
conclusion that the Respondent State was involved in the actions taken by
the Serbs in Bosnia-Herzegovina. Apart from the positive nature of the
evidence to that effect, one is bound to ask: how could the Serbs in Bosnia-

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Herzegovina have mounted a campaign of such intensity and duration if
they had not received external aid? And where could, or would, such aid
have come from, if not from the Respondent State? At the very least, the
effect of the evidence is to shift the burden of proof completely to the
Respondent. It has made no attempt to meet this burden, even to the
limited extent that would have been open to it within the framework of
the proceedings for interim measures.

5. Has Genocide Been Committed ?

68. In determining — even provisionally — whether genocide has been
committed, the point of departure is, of course, the definition of genocide
in Article II of the Genocide Convention:

“In the present Convention, genocide means any of the following
acts committed with intent to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:

(a} Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

69. The Yugoslav conduct alleged by the Applicant in its first request
of March 1993 consisted of

“military and paramilitary activities, including the bombing and
shelling of towns and villages, the destruction of houses and forced
migration of civilians, and acts of violence, including execution,
murder, torture and rape”.

In the light of the material available to the Court in April 1993 and which
has accumulated further since then, it is impossible to deny either the
occurrence or the massive scale of these crimes. The evidence also indi-
cates plainly that, in particular, the forced migration of civilians, more
commonly known as “ethnic cleansing”, is, in truth, part of a deliberate
campaign by the Serbs to eliminate Muslim control of, and presence in,
substantial parts of Bosnia-Herzegovina. Such being the case, it is diffi-
cult to regard the Serbian acts as other than acts of genocide in that they
clearly fall within categories (a), (b) and (c) of the definition of genocide
quoted above, they are clearly directed against an ethnical or religious
group as such, and they are intended to destroy that group, if not in whole

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certainly in part, to the extent necessary to ensure that that group no
longer occupies the parts of Bosnia-Herzegovina coveted by the Serbs.
The Respondent stands behind the Bosnian Serbs and it must, therefore,
be seen as an accomplice to, if not an actual participant in, this genocidal
behaviour.

70. Should there be any disposition to regard “ethnic cleansing” as no
more than an aspect of a particularly vicious territorial conflict between
Serbs and Muslims and, therefore, as not being carried out “with intent to
destroy, in whole or in part, a[n] ... ethnical ... or religious group, as
such”, it must be recalled that the Respondent has itself also characterized
“ethnic cleansing or comparable conduct” as genocide. In its request of
1 April 1993 (discussed in paragraphs 24-37 above in connection with
forum prorogatum) the Respondent adopted a broad view of genocide by
speaking (in its second proposal) of “the genocide of the Serbs” as a con-
sequence of “the commission of very serious war crimes”. Further, and
more specifically, in its sixth proposal, the Respondent requested, within
the framework of its assertion that the jurisdiction of the Court was
limited to disputes arising under the Genocide Convention, that the Court
should direct the Applicant “to put an end to... the practice of ‘ethnic
cleansing’”. Most recently, in the formal submissions made at the close of
the hearings on 26 August 1993, the Respondent asked the Court to
require the Applicant Government

“in pursuance of its obligation under the [Genocide] Convention...
[to] take all measures within its power to prevent commission of the
crime of genocide against the Serb ethnic group”.

Since the evidence presently before the Court of such “genocide against
the Serb ethnic group” is of a limited kind, and in terms of expulsion by
Bosnian Muslims of Bosnian Serbs from the areas in which they were
living does not approach the same order of magnitude as the expulsion
of Bosnian Muslims by the Serbs, it would appear a fortiori that the
Respondent also regards the “ethnic cleansing” as carried out in this con-
flict as a breach of Article II of the Genocide Convention.

IV. CONSIDERATION OF THE MEASURES SOUGHT
IN THE CURRENT REQUEST

71. I now turn to consider the provisional measures sought in the
current request.

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1. The First Request

72. The first request is:

“That Yugoslavia (Serbia and Montenegro) must immediately
cease and desist from providing, directly or indirectly, any type of
support... to any nation, group [etc.] in Bosnia and Herzegovina for
any reason or purpose whatsoever.”

73. This request is too broad to be granted in toto. The jurisdiction of
the Court has been invoked under Article IX of the Genocide Conven-
tion, the scope of which is limited to disputes relating to the interpretation,
application or fulfilment of the Convention, including those relating to
the responsibility of a State for genocide or for any of the other acts enu-
merated in Article III, namely, conspiracy, incitement, attempt and com-
plicity — all directly related to genocide. In so far as no other, more
general ground of the Court’s jurisdiction can be validly established, con-
duct unrelated to genocide does not properly fall within the scope of the
Application. Since this request calls for an indication of measures prohib-
iting certain conduct not in itself of a genocidal character, i.e., “for any
reason or purpose whatsoever”, it self-evidently goes beyond the limits of
conduct directed towards the commission of genocide and related mat-
ters. In view of this, I would restrict the grant of the first request to geno-
cide-related activity. The identification of such activity is dealt with in
connection with the requests that follow and my conclusions appear in
paragraph 122 below.

2. The Second Request

74. The second request is:

“That Yugoslavia (Serbia and Montenegro) and all of its public
officials ... must immediately cease and desist from any and all
efforts ... to partition, dismember, annex or incorporate the sover-
eign territory of Bosnia and Herzegovina.”

75. In order to fall within the terms of the Genocide Convention, the
Applicant must show that the conduct which it asks the Court to bring to
an end and prohibit (i) is aimed at the destruction, in whole or in part, of a
national, ethnical, racial or religious group; (ii) with the intent to destroy it
as such in whole or in part; (iii) by killing members of the group, causing
them serious bodily or mental harm, etc., as set out in Article IT of the
Convention.

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76. It is to be noted that the actions which the second request seeks to
prevent are all limited by the words that describe their objective, i.e., “to
partition, dismember, annex or incorporate the sovereign territory of
Bosnia and Herzegovina”.

77. Of the four kinds of groups expressly protected by Article II of the
Convention — national, ethnical, racial or religious — evidently the only
one that could be threatened by measures which are requested in terms of
protecting the integrity of “the sovereign territory” of Bosnia and Herze-
govina is a “national” group. The question is, therefore, what national
group is threatened by the conduct described and whether this conduct is
being carried out with intent to destroy that group.

78. Once one speaks of a “national” group defined by reference to the
people resident within the territory of Bosnia- Herzegovina, one immedi-
ately excludes any “national” group that may be described by reference
exclusively to a single ethnical, racial or religious qualification. The popu-
lation of Bosnia-Herzegovina includes not only Muslim elements, but
also Serbs, Croats and other minority religious or ethnical groups. Since
the conduct which is the subject of the evidence produced by the Appli-
cant is aimed not at all the people of Bosnia-Herzegovina, but principally
at the Muslim population, it cannot be said to be aimed at the “nation”,
i.e., the totality of the people, that lives in the territory of that country.

79. While it would be undesirable to adopt a restrictive view of the con-
cept of genocide as covered by the Convention, care must be taken that a
treaty aimed at preventing and punishing a relatively specific evil is not
converted into a device for challenging territorial change even though
brought about by conflict. International law, to the extent that it can be
effective in this most difficult of areas, already has available to it the
necessary legal rules, in the shape principally of those that deny legal
effect to territorial change brought about by aggression. It is not necessary
for this purpose to invoke and overstretch the Genocide Convention. I
would, therefore, deny the second request.

3. The Third Request
80. The third request is:

“That the annexation or incorporation of any sovereign territory of
the Republic of Bosnia and Herzegovina by Yugoslavia (Serbia and
Montenegro) by any means or for any reason shall be deemed illegal,
null, and void ab initio.”

81. It is beyond question that territory cannot lawfully be acquired by
the aggressive use of force and that such acquisition is in theory null and
void unless and until ratified by consent on the part of the State whose

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territory is thereby attenuated. This has been repeatedly stated by the
General Assembly and the Security Council of the United Nations,
including on occasion specific reference to the conflict in Bosnia and
Herzegovina, and there is no reason why the Court should not, albeit
obiter, restate and confirm this fundamental rule of international law.

82. But that opinion does not necessarily extend to cover “annexation
or incorporation of ... territory ... by any means or for any reason”. If
“annexation” is defined as “forcible seizure followed by unilateral asser-
tion of title” then, of course, the request falls within the prohibition of the
use of force for the acquisition of territory. On the other hand, if “annexa-
tion” is used in a more colloquial sense as meaning the assumption of title
over territory as a result of a negotiated settlement, even one following
aggression and hostilities, then it is not possible to say that the original
illegal conduct of the State acquiring the territory taints permanently the
transfer subsequently approved by the original sovereign. A fortiori, the
same is true of the expression “incorporation” which, in normal usage, is a
neutral expression not necessarily implying prior forcible action on the
part of the acquiring State.

83. I have said “albeit obiter”’ in paragraph 81 above because the
request is really a hypothetical one and, therefore, does not call for a
response. Although the area of Bosnia-Herzegovina originally occupied
by its Muslim population has now been significantly reduced by Serbian
attacks and occupation, the Applicant has produced no evidence that
“Yugoslavia (Serbia and Montenegro)”, the entity named in the request, is
— or will be — an annexing or incorporating power. Indeed, such evi-
dence as falls within the sphere of public knowledge or judicial notice
indicates at the present time that the Republic of Bosnia-Herzegovina is
likely to remain as a State within its original territory and that the resolu-
tion of the present conflict will take the form of a redistribution of territory
between the Muslim, Serb and Croat populations within that territory.

4. The Fourth Request

84. The fourth request is:

“That the Government of Bosnia and Herzegovina must have the
means ‘to prevent’ the commission of acts of genocide against its own
People as required by Article £ of the Genocide Convention.”

85. It is convenient to approach this request with some analysis of the
duties and rights created by Article I of the Genocide Convention wherein
the Contracting Parties:

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“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”.

86. The duty to “prevent” genocide is a duty that rests upon all parties
and is a duty owed by each party to every other. This network of duties is
matched by a network of correlative rights which it is not necessary now to
analyse in full detail. But in considering the present case, three separate
elements may be distinguished.

87. First, there is the duty of the Respondent both to prevent genocide
and to refrain from conduct that inhibits the ability of the Applicant itself
to prevent genocide or to resist it. There can be no doubt that the Court
may require the Respondent in general terms not to commit genocide and
to take measures to prevent the commission of genocide, whether directly
by itself or indirectly by others who may be directed, controlled or sup-
ported by it. This is what the Court has done in its Orders of 8 April 1993
and of today’s date. It is the least that the Court can do. There is a case,
however, for saying that, in the light of facts of which it is aware, the Court
should be more specific in directing the Respondent to refrain also from
particular kinds of acts, especially further murder of civilians and the con-
tinuance of the process of ethnic cleansing and the forced displacement of
the Muslim population.

88. Second, there is the duty of the Applicant conceived and expressed
in the same terms as those just used in regard to the duty of the Respon-
dent. In principle, the duties of the two Parties are identical. But when the
evidence indicates (as it does) that the extent of the atrocities committed
against the Muslim population of Bosnia is of an order which so far
exceeds the extent of any wrongs done to the Serb ethnic group in Bosnia-
Herzegovina as to exclude any conclusion that the latter are suffer-
ing genocide, there is no need for a more specific indication of interim
measures in favour of Yugoslavia than appeared in the Court’s Order
of 8 April 1993; and that is the view that the Court has taken in its Order
of today’s date.

89. Third, there is the question of access by the Applicant to the means
to prevent the commission of acts of genocide. The Applicant obviously
has here in mind some consideration by the Court of the effect and future
of the embargo placed by Security Council resolution 713 (1991) of
25 September 1991 upon the provision of arms and military equipment to
both sides in the conflict.

90. In the resolution in question the Security Council decided, acting
under Chapter VII of the Charter, inter alia:

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“that all States shall, for the purpose of establishing peace and stabil-
ity in Yugoslavia, immediately implement a general and complete
embargo on all deliveries of weapons and military equipment to
Yugoslavia until the Security Council decides otherwise following
consultation between the Secretary-General and the Government of
Yugoslavia” (resolution 713 (1991), para. 6).

Four aspects of this resolution call for comment.

91. The first is that the embargo was requested by Yugoslavia itself and
three members of the Security Council, China, India and Zimbabwe,
stated that they regarded Yugoslavia’s express agreement to the embargo
as essential. This, however, cannot be seen as reflecting a legal require-
ment to this effect. Rather, the likely explanation is that some political
hesitation on the part of those States mentioning this consideration was
overcome by the fact of Yugoslavia’s agreement.

92. The second comment is that the resolution was adopted at a time
when the international status and capacity of the original federal State of
Yugoslavia had not been brought into question. Within one month, how-
ever, the authority of the government in Belgrade to represent the whole of
the territory formerly comprised within the borders of Yugoslavia had
become a matter of doubt. On 25 October 1991 Mr. Cyrus Vance, acting as
representative of the United Nations Secretary-General, reported that the
subsequent declarations of full independence made by Slovenia and
Croatia had seriously impaired the de facto authority of the central gov-
ernment in Yugoslavia. On 7 December 1991 the Arbitration Commission
established by the European Community found (inter alia) that the Social-
ist Federal Republic of Yugoslavia was in the process of dissolution. By
19 September 1992 the Security Council recorded in the preamble to reso-
lution 777 (1992) that “the State formerly known as the Socialist Federal
Republic of Yugoslavia has ceased to exist”. On 6 March 1992 Bosnia-
Herzegovina declared its independence; on 6 April 1992 it was recognized
by the European Community and on 22 May 1992 it was admitted to mem-
bership of the United Nations. The implications of this consideration are
closely connected with the one that follows.

93. The third point is that the area to which the resolution prohibited
the delivery of weapons was described as “Yugoslavia”. As a description
of an identifiable territory this name ceased to be valid upon the dissolu-
tion of the former Socialist Federal Republic of Yugoslavia and its
replacement in a large part of that territory by a number of independent
republics, the boundaries of which with each other were found by the
Arbitral Commission on 11 January 1992 to have acquired “the character
of borders protected by international law”.

94. On the basis of these two considerations the Applicant has argued

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that the resolution is not applicable to the territory of the new Republic of
Bosnia and Herzegovina. Though this argument is by no means devoid of
logical force, the difficulty with it lies in the fact that the Security Council
has on a number of occasions reaffirmed the embargo, notwithstanding
the fact that the Security Council clearly must have known of the emer-
gence of the new Republic and evidently intended the embargo to apply to
it. The idea of “interpreting” the resolution so as not to apply to the Appli-
cant does not seem consistent with what the Security Council has appar-
ently had in mind. The most compelling evidence of the Council’s view in
this regard is the record of the debate held on 29 June 1993 when six mem-
bers sought, without success, to persuade the Council expressly to raise
the embargo in relation to Bosnia-Herzegovina. The vote was 6 in favour,
none against, with 9 abstentions.

95. The fourth and legally most relevant comment to be made on the
resolution is that the embargo operates unequally between the two sides
principally engaged in the conflict. The Serbians in Bosnia had (and have)
the support of the Serbians in Serbia and the latter have the benefit of
access to the stocks of arms of the Yugoslav National Army, the produc-
tion of arms factories in Serbia and the import, in breach of the embargo,
of arms and military equipment via the Danube and other routes. The
Bosnian Muslims did not (and do not) have these advantages.

96. This inequality has been widely recognized and, in particular, was
pointed out by the former Prime Minister of Poland, Mr. Tadeusz Mazo-
wiecki, Special Rapporteur of the Commission on Human Rights, in his
report circulated in the United Nations on 17 November 1992 (A/47/666 -
S/24809). He said, in paragraph 14:

“Another factor which has contributed to the intensity of ethnic
cleansing in areas under Serbian control is the marked imbalance
between the weaponry in the hands of the Serbian and the Muslim
population of Bosnia and Herzegovina.”

In an earlier paragraph 6, the Special Rapporteur had indicated that

“the content of the report is based mainly on information received by
the Special Rapporteur and his delegation directly from credible
witnesses or from reliable and impartial sources”.

Subsequently, the General Assembly took note of the above-quoted state-
ment of the Special Rapporteur and incorporated it verbatim in the
preamble of General Assembly resolution 47/121 of 18 December 1992.
This statement is the more important because of the direct link which it
demonstrates between the continuance of the arms embargo and the
exposure of the Muslim population of Bosnia to genocidal activity at the
hands of the Serbs.

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97. The Applicant’s request gives rise to two questions: one is whether
any challenge to the Security Council resolution is possible in the present
context; the other is how, as a matter of form, the Court could give opera-
tive effect to its views on this matter within the procedural framework of
bilateral litigation between the present two Parties. Although the Court
has taken the position that it can make a suitable order without entering
into these questions, I believe that some consideration should be given to
them.

A. The effect of the Security Council resolution

98. On the face of it, Security Council resolution 713 (1991) is a valid
prohibition of the supply of arms and military equipment to those
involved in the Yugoslav conflict and is binding on all Members of the
United Nations. Although the resolution is open to the comments
expressed above in paragraphs 91-96, it cannot be said with certainty that
in themselves these comments affect the continuing validity of the resolu-
tion. The fact that some of the members of the Security Council indicated
that they would not have supported the resolution in the absence of the
consent of Yugoslavia, in relation to whose territory the embargo was
adopted, could only be relevant in the absence of a determination by the
Security Council that the situation fell within Chapter VII of the Charter.
Once the Security Council indicated that it was acting “under Chap-
ter VII”, it was no longer constrained by the necessity of obtaining the
consent of any State to the measures that it considered the circumstances
to require.

99. This is not to say that the Security Council can act free of all legal
controls but only that the Court’s power of judicial review is limited. That
the Court has some power of this kind can hardly be doubted, though
there can be no less doubt that it does not embrace any right of the Court
to substitute its discretion for that of the Security Council in determining
the existence of a threat to the peace, a breach of the peace or an act of
aggression, or the political steps to be taken following such a determina-
tion. But the Court, as the principal judicial organ of the United Nations,
is entitled, indeed bound, to ensure the rule of law within the United
Nations system and, in cases properly brought before it, to insist on adher-
ence by all United Nations organs to the rules governing their operation.
The Court has already, in the Lockerbie case, given an extensive inter-
pretation of the powers of the Security Council when acting under Chap-
ter VII, in holding that a decision of the Council is, by virtue of Articles 25
and 103 of the Charter, able to prevail over the obligations of the parties
under any other international agreement (see Questions of Interpretation
and Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Provi-
sional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 15,
para. 39).

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100. The present case, however, cannot fall within the scope of the doc-
trine just enunciated. This is because the prohibition of genocide, unlike
the matters covered by the Montreal Convention in the Lockerbie case to
which the terms of Article 103 could be directly applied, has generally
been accepted as having the status not of an ordinary rule of international
law but of jus cogens. Indeed, the prohibition of genocide has long been
regarded as one of the few undoubted examples of jus cogens. Even in
1951, in its Advisory Opinion on Reservations to the Convention on the Pre-
vention and Punishment of the Crime of Genocide, the Court affirmed that
genocide was “contrary to moral law and to the spirit and aims of the
United Nations” (a view repeated by the Court in paragraph 51 of today’ s
Order) and that

“the principles underlying the Convention are provisions which are
recognized by civilized nations as binding on States even without any
conventional obligation” (1.C.J. Reports 1951, p. 22).

An express reference to the special quality of the prohibition of genocide
may also be seen in the work of the International Law Commission in the
preparation of Article 50 of the draft articles on the Law of Treaties (Year-
book of the International Law Commission, 1966, Vol. II, pp. 248-249)
which eventually materialized in Article 53 of the Vienna Convention
on the Law of Treaties and in the same Commission’s commentary on
Article 19 (international crimes and delicts) of the draft articles on State
Responsibility (Yearbook of the International Law Commission, 1976,
Vol. II, Pt. 2, p. 103). The concept of jus cogens operates as a concept
superior to both customary international law and treaty. The relief which
Article 103 of the Charter may give the Security Council in case of
conflict between one of its decisions and an operative treaty obligation
cannot — as a matter of simple hierarchy of norms — extend to a conflict
between a Security Council resolution and jus cogens. Indeed, one only
has to state the opposite proposition thus — that a Security Council reso-
lution may even require participation in genocide — for its unaccepta-
bility to be apparent.

101. Nor should one overlook the significance of the provision in
Article 24 (2) of the Charter that, in discharging its duties to maintain
international peace and security, the Security Council shall act in accor-
dance with the Purposes and Principles of the United Nations. Amongst
the Purposes set out in Article 1 (3) of the Charter is that of achieving
international co-operation “in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as
to race, sex, language or religion”.

102. Now, it is not to be contemplated that the Security Council would
ever deliberately adopt a resolution clearly and deliberately flouting a rule

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of jus cogens or requiring a violation of human rights. But the possibility
that a Security Council resolution might inadvertently or in an unforeseen
manner lead to such a situation cannot be excluded. And that, it appears,
is what has happened here. On this basis, the inability of Bosnia-Herzego-
vina sufficiently strongly to fight back against the Serbs and effectively to
prevent the implementation of the Serbian policy of ethnic cleansing is at
least in part directly attributable to the fact that Bosnia-Herzegovina’s
access to weapons and equipment has been severely limited by the
embargo. Viewed in this light, the Security Council resolution can be seen
as having in effect called on Members of the United Nations, albeit
unknowingly and assuredly unwillingly, to become in some degree sup-
porters of the genocidal activity of the Serbs and in this manner and to that
extent to act contrary to a rule of jus cogens.

103. What legal consequences may flow from this analysis? One pos-
sibility is that, in strict logic, when the operation of paragraph 6 of Secu-
rity Council resolution 713 (1991) began to make Members of the United
Nations accessories to genocide, it ceased to be valid and binding in its
operation against Bosnia-Herzegovina; and that Members of the United
Nations then became free to disregard it. Even so, it would be difficult to
say that they then became positively obliged to provide the Applicant with
weapons and military equipment.

104. There is, however, another possibility that is, perhaps, more in
accord with the realities of the situation. It must be recognized that the
chain of hypotheses in the analysis just made involves some debatable
links — elements of fact, such as that the arms embargo has led to the
imbalance in the possession of arms by the two sides and that that imbal-
ance has contributed in greater or lesser degree to genocidal activity such
as ethnic cleansing; and elements of law, such as that genocide is jus
cogens and that a resolution which becomes violative of jus cogens
must then become void and legally ineffective. It is not necessary for the
Court to take a position in this regard at this time. Instead, it would seem
sufficient that the relevance here of jus cogens should be drawn to the
attention of the Security Council, as it will be by the required communica-
tion to it of the Court’s Order, so that the Security Council may give due
weight to it in future reconsideration of the embargo.

B. The procedural question

105. The second question now presents itself. In formal procedural
terms, how can the Court, within the framework of proceedings between
the Applicant and the Respondent to which no other State is a party,

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reflect the views set out above? The position would, of course, have
been somewhat different if, invoking the obligation resting upon all
parties to the Genocide Convention to prevent genocide, the Applicant
had started proceedings against one or more of other parties to the Conven-
tion challenging their failure to meet this commitment. Then, if the
Court had shared the view here expressed of the scope of Article I, it
could have made a declaration inter partes along the lines indicated
above. But, for whatever reason, that course was not chosen by the Appli-
cant and, in consequence, the question must be asked whether the Court,
either at the request of a party or proprio motu, can properly find room
within the framework of the present case for this kind of approach.

106. While, of course, the principal thrust of a finding that paragraph 6
of Security Council resolution 713 (1991) may conflict with jus cogens
must lie in the direction of third States which may be willing to supply
arms to Bosnia-Herzegovina, that does not mean that such a conclusion
could have no place in an order operative between Bosnia-Herzegovina
and Yugoslavia in the present proceedings. There may well be advantage
for Bosnia-Herzegovina (it is not for the Court to determine) in being
able to say that the Court has identified a source of doubt regarding the
validity of the embargo resolution which, though not directly operative
by itself, requires that the Security Council give the matter further con-
sideration.

107. So far, then, as this fourth request is related to the elimination of
the arms embargo vis-a-vis Bosnia-Herzegovina, I would be prepared to
say that the Applicant may have an indication of a provisional measure in
the following terms: that as between the Applicant and the Respondent
the continuing validity of the embargo in its bearing on the Applicant has
become a matter of doubt requiring further consideration by the Security
Council.

5. The Fifth Request

108. The fifth request is:

“That all Contracting Parties to the Genocide Convention are
obliged by Article I thereof ‘to prevent’ the commission of acts of
genocide against the People and State of Bosnia and Herzegovina.”

109. As is apparent on the face of the Convention, most of its provi-
sions are taken up with aspects of the prevention and punishment of geno-
cide within the national legal sphere, that is to say, with breaches of the
Convention by individuals. Thus Article III describes genocide and
related acts as being “punishable” — a process more obviously applicable
to individuals than to States. Article IV prescribes that “persons commit-
ting genocide ... shall be punished”. Article V requires the Contracting

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Parties “to enact legislation to give effect to the provisions of the Conven-
tion” — again reflecting the concern of the Convention with the individ-
ual violator. This is reinforced by Article VI which provides that persons
charged with genocide shall be tried by a competent tribunal of the State
in the territory of which the act was committed or by an appropriate inter-
national penal tribunal. Yet again, Article VII provides that, for the pur-
pose of extradition, genocide shall not be considered as a political crime.
All this, therefore, strongly suggests that the Convention does no more
than establish for the Contracting States duties that are to be implemented
by legislative action within their domestic legal spheres.

110. Any such narrow view must, however, be rejected. The statement
in Article I that the Contracting Parties undertake “to prevent and to pun-
ish” genocide is comprehensive and unqualified. The undertaking estab-
lishes two distinct duties: the duty “to prevent” and the duty “to punish”.
Thus, a breach of duty can arise solely from failure to prevent or solely
from failure to punish, and does not depend on there being a failure both
to prevent and to punish. The confirmation in the same Article that geno-
cide “is a crime under international law” does not change the position or
restrict the application of the concept of genocide exclusively to individ-
ual criminal liability. The purpose of this latter provision is to permit par-
ties, within the domestic legislation that they adopt, to assume universal
jurisdiction over the crime of genocide — that is to say, even when the acts
have been committed outside their respective territories by persons who
are not their nationals.

111. Thus the effect of the Convention is also to place upon States
duties to prevent and to punish genocide on the inter-State level. This is
the plain meaning of the words of Article I and it is confirmed to some
extent by Article VIII and most clearly by Article IX. The latter
Article contains the disputes settlement provision of the Convention:

“Disputes between the Contracting Parties relating to the interpre-
tation, application or fulfilment of the present Convention, including
those relating to the responsibility of a State for genocide or for any of
the other acts enumerated in article III, shall be submitted to the
International Court of Justice at the request of any of the parties to
the dispute.” (Emphasis added.)

Itis the italicized words, “including those relating to the responsibility of a
State for genocide”, and especially the words “for genocide”, that make it
clear that the Convention contemplates the possibility that a State may
commit genocide and, therefore, that the obligation “to prevent” genocide

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extends also to the obligation to prevent a State from committing geno-
cide. If the Convention were limited to the creation of a duty upon States
to prevent and to punish genocide within their national legal systems and,
by definition, committed by persons not possessing the quality of state-
hood, how could there be any possibility of the State itself being respon-
sible for genocide, a possibility evidently anticipated in Article IX ?

112. The above interpretation, it should be said, is based exclusively
upon the plain meaning of the words actually used in the Convention.
There is no doubt or ambiguity on the face of the text and preliminary
scrutiny of the travaux préparatoires does not suggest anything that
requires departure from this plain meaning.

113. There is, thus, no difficulty in declaring that all the parties to the
Genocide Convention are under a duty to prevent genocide. This is
merely a matter of reading the words of Article I of the Convention. Nor is
it out of place for the Court to make such a declaration in the present case
as part of the indication of provisional measures of protection directed
towards the Respondent. What is more controversial is whether this duty
extends beyond the duty of each party to prevent genocide within its own
territory to that of preventing genocide wherever it may occur.

114. Obviously, an absolutely territorial view of the duty to prevent
genocide would not make sense since this would mean that a party,
though obliged to prevent genocide within its own territory, is not obliged
to prevent it in territory which it invades and occupies. That would be
nonsense. So there is an obligation, at any rate for a State involved in
a conflict, to concern itself with the prevention of genocide outside its
territory.

115. But does the duty of prevention that rests upon a party in respect
of its own conduct, or that of persons subject to its authority or control,
outside its territory also mean that every party is under an obligation indi-
vidually and actively to intervene to prevent genocide outside its territory
when committed by or under the authority of some other party? As
already stated, the undertaking in Article I of the Convention “to prevent”
genocide is not limited by reference to person or place so that, on its face,
it could be said to require every party positively to prevent genocide
wherever it occurs. At this point, however, it becomes necessary to look
at State practice. Since the Second World War, there have regrettably been
a number of cases of genocide. As Mr. B. Whitaker, the Special Rappor-
teur of the United Nations Sub-Commission on Prevention of Discrimi-
nation and Protection of Minorities, has stated in the Revised and Updated
Report on the Question of the Prevention and Punishment of Genocide
(E/CN.4/Sub.2/1985/6, 2 July 1985) requested by the Economic and
Social Council, the examples which may be cited are

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“the Tutsi massacre of Hutu in Burundi in 1965 and 1972, the Para-
guayan massacre of Aché Indians prior to 1974, the Khmer Rouge
massacre in Kampuchea between 1975 and 1978 and the contem-

25,

porary Iranian killings of Bahai’s” (pp. 9-10, para. 24).

The limited reaction of the parties to the Genocide Convention in relation
to these episodes may represent a practice suggesting the permissibility of
inactivity. In contrast with the position that I have taken on other debat-
able aspects of this case that have not been fully argued by the Parties, I do
not feel able, in the absence of a full treatment of this subject by both sides
to express a View on it at this stage — sympathetic though I am in principle
to the idea of an individual and collective responsibility of States for the
prevention of genocide wherever it may occur. I, therefore, find myself
unable to accede to the fifth request.

6. The Sixth Request

116. The sixth request is:

“That the Government of Bosnia and Herzegovina must have the
means to defend the People and State of Bosnia and Herzegovina
from acts of genocide and partition and dismemberment by means of
genocide.”

117. The first part of this request essentially duplicates the fourth
request, already considered, but the second part introduces an additional
element, namely, that the Applicant should have the means to defend its
people and itself from “partition and dismemberment by means of geno-
cide”.

118. As the view has already been expressed in the answer to the fourth
request that the Applicant must have the means to prevent the commission
of genocide against itself, the elaboration of the consequences of genocide
against which it is entitled to protect itself is unnecessary. The problem is
largely one of causation. Is the “partition and dismemberment” of Bosnia
and Herzegovina being achieved “by means of genocide”? To answer No
— as must be the answer — is not to deny that genocide has taken place in
Bosnia and Herzegovina and that at the present time it appears to be con-
tinuing. Rather it is to say that the object of the genocide is the Muslim
population of Bosnia not “the People and State of Bosnia-Herzegovina”
as a whole. The latter concept must comprise all the elements of the popu-
lation of Bosnia and Herzegovina, of which the Muslim population forms
no more than 40 per cent. So, though the Government of Bosnia and
Herzegovina is entitled to the means to protect its population, or part of its
population, from genocide, that entitlement does not extend to the protec-
tion of the State from dismemberment where the population of the State is
evidently divided within itself and cannot be said to compose a “national

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group” within the meaning of that expression as used in Article I of the
Convention. The Court is as much bound to take judicial notice of current
political developments in Bosnia and Herzegovina as it is of the earlier
events affecting its Muslim population and clearly constituting genocide.
These current developments exclude any notion that the division by
agreement of the territory of Bosnia and Herzegovina between the Mus-
lims, Serbs and Croats of the country can be regarded as genocide.

7. The Seventh, Eighth and Ninth Requests

119. The content of these requests is so similar to that of the sixth,
fourth and fifth requests respectively as not to require separate answers.
They are covered, to the extent that it is possible to do so, by the measures
indicated below.

8. The Tenth Request
120. The tenth request is

“That United Nations Peace-keeping Forces in Bosnia and Herze-
govina (i.e., UNPROFOR) must do all in their power to ensure the
flow of humanitarian relief supplies to the Bosnian People through
the Bosnian city of Tuzla.”

121. As no evidence has been produced to the Court that the
United Nations Peace-keeping Forces in Bosnia are doing anything other
than all in their power to perform their humanitarian duties, there is no
basis for dealing with this request.

V. CONCLUSIONS

122. In expressing my conclusions on the Applicant’s second request
for an indication of interim measures, I begin by repeating my concur-
rence with the operative paragraphs of the Court’s Order. As already
stated, however, I would have preferred the Court to have dealt with cer-
tain aspects of the case in greater detail and to have gone beyond the re-
affirmation of the measures indicated in its Order of 8 April 1993. I shall,
therefore, elaborate in paragraph 123 a number of interim measures
which I believe fall within the scope of the Genocide Convention and of
the operative part of the Court’s Order and which I would have wished to
have seen expressly included in it. In paragraph 124 I shall set out some
additional measures which, though outside the scope of the Genocide

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Convention, lie, in my view, within the scope of the Court’s jurisdiction
based on forum prorogatum.

123. In the exercise of the jurisdiction conferred upon it by Article IX
of the Genocide Convention:

A. The Court should have ordered Yugoslavia (Serbia and Monte-
negro) and any authorities or persons, whether military or civil, subject to
its control, direction or influence, immediately to cease, and subsequently
to refrain from, any act amounting to, contributing to, or supportive of
genocide in Bosnia-Herzegovina.

The acts of, or associated with, genocide which should have been
covered by the Order are those acts listed in Article IT of the Genocide
Convention.

The prohibition should have extended, but not been limited, to:

(i) providing or permitting the provision of weapons, ammunition, mili-
tary supplies and financial, commercial or any other aid, except of a
strictly humanitarian character, to any forces, authorities or individu-
als engaged or engaging in Bosnia-Herzegovina in hostilities or armed
actions against the Government of the Republic of Bosnia-Herzego-
vina or against any persons within the territorial limits of that Repub-
lic as established at 6 March 1992 who acknowledge its authority or
claim its protection, and

(ii) “ethnic cleansing” or conduct contributing thereto such as attacks
and firing upon, sniping at and killing of non-combatants, and bom-
bardment and blockade of areas of civilian occupation and other con-
duct having as its effect the terrorization of civilians in such a manner
as to lead them to abandon their homes.

B. The Court should further have declared that, as between the Appli-
cant and the Respondent, the imbalance in the supply of weaponry as a
result of the embargo established by Security Council resolution 713
(1991) and the grave disadvantage under which the Applicant has thus
been placed has a sufficient causal connection with the continuance of
genocide in Bosnia-Herzegovina to raise the question of its compatibility
with jus cogens and thus place in doubt its continuing validity in a manner
calling for further consideration by the Security Council.

124. In addition, in the exercise of the jurisdiction conferred upon the
Court by the request of the Applicant for interim measures contained in
the act of forum prorogatum constituted by the letter of 1 April 1993 from
the Respondent to the Registrar of the Court, the Court should have
ordered both Parties and those subject to their authority or control:

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(i) to comply strictly with any agreement or agreements for a cease-fire
to which they may be, or may become, parties;

(ii) to respect the Geneva Conventions for the Protection of Victims of
War of 1949 and the 1977 Additional Protocols thereof;

(iii) to release immediately from all prisons and detention camps all
Muslims, Serbs or other persons who are being detained because
of their ethnic origin, and to terminate forthwith the torture and
maltreatment of such persons;

(iv) to allow, without delay, the free movement of all those who, by
reason of the conflict and insecurity in Bosnia-Herzegovina wish
voluntarily to leave their homes and move elsewhere;

(v) to refrain from any further destruction of mosques, churches, other
places of worship, schools, libraries, museums and any other estab-
lishments or institutions associated with the ethnical or religious
identity of any group in Bosnia-Herzegovina; and

(vi) to end immediately all acts of discrimination in any territory under
their control based on nationality, religion or ethnic identity, includ-
ing any discrimination relating to the delivery of humanitarian aid
and, to that end, to co-operate with and render all aid and assistance
within their power to UNPROFOR, UNHCR and other agencies,
whether intergovernmental or non-governmental, in providing and
protecting safe havens and other localities of sheltered civilian abode
and in carrying necessary non-military supplies to such places.

(Signed) Elihu LAUTERPACHT.

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