INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING APPLICATION OF
THE CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE

(BOSNIA AND HERZEGOVINA
v. YUGOSLAVIA (SERBIA AND MONTENEGRO))

REQUEST FOR THE INDICATION OF PROVISIONAL
MEASURES

ORDER OF 8 APRIL 1993

1993

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A L’APPLICATION
DE LA CONVENTION POUR LA PREVENTION
ET LA REPRESSION DU CRIME DE GENOCIDE
(BOSNIE-HERZEGOVINE | __
c. YOUGOSLAVIE (SERBIE ET MONTENEGRO))

DEMANDE EN INDICATION DE MESURES
CONSERVATOIRES

ORDONNANCE DU 8 AVRIL 1993
Official citation:

Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, Provisional Measures, Order of 8 April 1993,
I.C.J. Reports 1993, p.3

Mode officiel de citation:

Application de la convention pour la prévention et la répression
du crime de génocide, mesures conservatoires, ordonnance du 8 avril 1993,
C.J. Recueil 1993, p. 3

Sales number
ISSN 0074-4441 N° de vente : 63 1
ISBN 92-1-070689-7

INTERNATIONAL COURT OF JUSTICE

1993 YEAR 1993
8 April
General List
No. 91 8 April 1993

CASE CONCERNING APPLICATION OF
THE CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE

(BOSNIA AND HERZEGOVINA
v. YUGOSLAVIA (SERBIA AND MONTENEGRO))

REQUEST FOR THE INDICATION
OF PROVISIONAL MEASURES

ORDER

Present: President Sir Robert JENNINGS; Vice-President ODA; Judges AGO,
SCHWEBEL, BEDJAOUI, NI, EVENSEN, TARASSOV, GUILLAUME,
SHAHABUDDEEN, AGUILAR MAWDSLEY, WEERAMANTRY, RANJEVA,
AsIBOLA; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Articles 35, 36, 41 and 48 of the Statute of the Court,
and to Articles 73, 74 and 75 of the Rules of Court,

Having regard to the Application by the Republic of Bosnia and Herze-
govina (hereinafter called “Bosnia-Herzegovina”) filed in the Registry of
the Court on 20 March 1993, instituting proceedings against the Federal
Republic of Yugoslavia (Serbia and Montenegro) (hereinafter called

4
4 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

“Yugoslavia”) in respect of a dispute concerning alleged violations by
Yugoslavia of the Convention on the Prevention and Punishment of the
Crime of Genocide, adopted by the General Assembly of the United
Nations on 9 December 1948 (hereinafter called “the Genocide Conven-
tion”), as well as matters which Bosnia-Herzegovina maintains to be con-
nected therewith,

Makes the following Order:

1. Whereas in the above-mentioned Application Bosnia-Herzegovina,
basing the jurisdiction of the Court on Article IX of the Genocide Con-
vention, recounts a series of events in Bosnia-Herzegovina from April
1992 up to the present day which, in its contention, amount to acts of geno-
cide within the definition given in the Genocide Convention, specifically

(i) killing members of a group, namely Muslim inhabitants of Bosnia-
Herzegovina;
(ii) causing serious bodily or mental harm to members of that group;

(iii) deliberately inflicting on that group conditions of life calculated to
bring about its physical destruction in whole or in part; and
(iv) imposing measures intended to prevent births within that group;

and whereas Bosnia-Herzegovina claims that the acts complained of have
been committed by former members of the Yugoslav People’s Army
(YPA) and by Serb military and paramilitary forces under the direction of,
at the behest of, and with assistance from Yugoslavia; and whereas
Bosnia-Herzegovina claims that Yugoslavia is therefore fully responsible
under international law for their activities;

2. Whereas on the basis of the facts alleged in the Application Bosnia-
Herzegovina requests the Court to adjudge and declare as follows:

“{a) that Yugoslavia (Serbia and Montenegro) has breached, and is
continuing to breach, its legal obligations toward the People
and State of Bosnia and Herzegovina under Articles I, II (a),
II (b), IT (c), IT (d), IX (a), IX (b), II (c), II (d), III fe), IV and V of
the Genocide Convention;

(b) that Yugoslavia (Serbia and Montenegro) has violated and is
continuing to violate its legal obligations toward the People
and State of Bosnia and Herzegovina under the four Geneva
Conventions of 1949, their Additional Protocol I of 1977, the
customary international laws of war including the Hague
Regulations on Land Warfare of 1907, and other fundamental
principles of international humanitarian law;

(c) that Yugoslavia (Serbia and Montenegro) has violated and
continues to violate Articles 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26 and 28 of the Universal
APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

(d)

(e)

(h)

i)

@

(k)

Declaration of Human Rights with respect to the citizens of
Bosnia and Herzegovina;

that Yugoslavia (Serbia and Montenegro), in breach of its obli-
gations under general and customary international law, has
killed, murdered, wounded, raped, robbed, tortured, kid-
napped, illegally detained, and exterminated the citizens of
Bosnia and Herzegovina, and is continuing to do so;

that in its treatment of the citizens of Bosnia and Herzegovina,
Yugoslavia (Serbia and Montenegro) has violated, and is con-
tinuing to violate, its solemn obligations under Articles 1 (3),
55 and 56 of the United Nations Charter;

that Yugoslavia (Serbia and Montenegro) has used and is con-
tinuing to use force and the threat of force against Bosnia and
Herzegovina in violation of Articles 2 (1), 2 (2), 2 (3), 2 (4) and
33 (1), of the United Nations Charter;

that Yugoslavia (Serbia and Montenegro), in breach of its obli-
gations under general and customary international law, has
used and is using force and the threat of force against Bosnia
and Herzegovina;

that Yugoslavia (Serbia and Montenegro), in breach of its obli-
gations under general and customary international law, has
violated and is violating the sovereignty of Bosnia and Herze-
govina by:

— armed attacks against Bosnia and Herzegovina by air and
land;

— aerial trespass into Bosnian airspace;

— efforts by direct and indirect means to coerce and intimi-
date the Government of Bosnia and Herzegovina;

that Yugoslavia (Serbia and Montenegro), in breach of its obli-
gations under general and customary international law, has
intervened and is intervening in the internal affairs of Bosnia
and Herzegovina;

that Yugoslavia (Serbia and Montenegro), in recruiting, train-
ing, arming, equipping, financing, supplying and otherwise
encouraging, supporting, aiding, and directing military and
paramilitary actions in and against Bosnia and Herzegovina by
means of its agents and surrogates, has violated and is violating
its express charter and treaty obligations to Bosnia and Herze-
govina and, in particular, its charter and treaty obligations
under Article 2 (4) of the United Nations Charter, as well as its
obligations under general and customary international law;

that under the circumstances set forth above, Bosnia and Her-
APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

zegovina has the sovereign right to defend Itself and its People
under United Nations Charter Article 51 and customary inter-
national law, including by means of immediately obtaining
military weapons, equipment, supplies and troops from other
States;

(1) that under the circumstances set forth above, Bosnia and Her-
zegovina has the sovereign right under United Nations Charter
Article 51 and customary international law to request the
immediate assistance of any State to come to its defence,
including by military means (weapons, equipment, supplies,
troops, etc.);

(m) that Security Council resolution 713 (1991), imposing a wea-
pons embargo upon the former Yugoslavia, must be construed
in a manner that shall not impair the inherent right of individ-
ual or collective self-defence of Bosnia and Herzegovina under
the terms of United Nations Charter Article 51 and the rules of
customary international law;

(n) that all subsequent Security Council resolutions that refer to or
reaffirm resolution 713 (1991) must be construed in a manner
that shall not impair the inherent right of individual or collec-
tive self-defence of Bosnia and Herzegovina under the terms of
United Nations Charter Article 51 and the rules of customary
international law;

(o) that Security Council resolution 713 (1991) and all subsequent
Security Council resolutions referring thereto or reaffirming
thereof must not be construed to impose an arms embargo
upon Bosnia and Herzegovina, as required by Articles 24 (1)
and 51 of the United Nations Charter and in accordance with
the customary doctrine of ultra vires ;

(p) that pursuant to the right of collective self-defence recognized
by United Nations Charter Article 51, all other States parties to
the Charter have the right to come to the immediate defence of
Bosnia and Herzegovina — at its request — including by means
of immediately providing It with weapons, military equipment
and supplies, and armed forces (soldiers, sailors, airpeople,
etc.);

(q) that Yugoslavia (Serbia and Montenegro) and its agents and
surrogates are under an obligation to cease and desist immedi-
ately from its breaches of the foregoing legal obligations, and is
under a particular duty to cease and desist immediately :

— from its systematic practice of so-called ‘ethnic cleansing’
of the citizens and sovereign territory of Bosnia and Herze-
govina;
7 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

— from the murder, summary execution, torture, rape, kid-
napping, mayhem, wounding, physical and mental abuse,
and detention of the citizens of Bosnia and Herzegovina;

— from the wanton. devastation of villages, towns, districts,
cities, and religious institutions in Bosnia and Herzegovina;

— from the bombardment of civilian population centres in
Bosnia and Herzegovina, and especially its capital, Sara-
jevo;

— from continuing the siege of any civilian population centres
in Bosnia and Herzegovina, and especially its capital,
Sarajevo;

— from the starvation of the civilian population in Bosnia and
Herzegovina;

— from the interruption of, interference with, or harassment of
humanitarian relief supplies to the citizens of Bosnia and
Herzegovina by the international community;

— from all use of force — whether direct or indirect, overt or
covert — against Bosnia and Herzegovina, and from all
threats of force against Bosnia and Herzegovina;

— from all violations of the sovereignty, territorial integrity or
political independence of Bosnia and Herzegovina, includ-
ing all intervention, direct or indirect, in the internal affairs
of Bosnia and Herzegovina;

— from all support of any kind — including the provision of
training, arms, ammunition, finances, supplies, assistance,
direction or any other form of support — to any nation,
group, organization, movement or individual engaged or
planning to engage in military or paramilitary actions in or
against Bosnia and Herzegovina;

(r) that Yugoslavia (Serbia and Montenegro) has an obligation to
pay Bosnia and Herzegovina, in its own right and as parens
patriae for its citizens, reparations for damages to persons and
property as well as to the Bosnian economy and environment
caused by the foregoing violations of international law in a sum
to be determined by the Court. Bosnia and Herzegovina
reserves the right to introduce to the Court a precise evaluation
of the damages caused by Yugoslavia (Serbia and Monte-
negro)”;

3. Whereas by a request filed in the Registry on 20 March 1993 immedi-
ately after the filing of the Application, Bosnia- Herzegovina, invoking Ar-
ticle 41 of the Statute of the Court and Articles 73, 74, 75 and 78 of the

8
8 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

Rules of Court, and relying on the facts set forth in the Application,
urgently requested that the Court indicate the following provisional mea-
sures to be in effect while the Court is seised of this case:

“1. That Yugoslavia (Serbia and Montenegro), together with its
agents and surrogates in Bosnia and elsewhere, must immediately
cease and desist from all acts of genocide and genocidal acts against
the People and State of Bosnia and Herzegovina, including but not
limited to murder; summary executions; torture; rape; mayhem; so-
called ‘ethnic cleansing’; the wanton devastation of villages, towns,
districts and cities; the siege of villages, towns, districts and cities; the
starvation of the civilian population; the interruption of, interference
with, or harassment of humanitarian relief supplies to the civilian
population by the international community; the bombardment of
civilian population centres; and the detention of civilians in concen-
tration camps or otherwise.

2. That Yugoslavia (Serbia and Montenegro) must immediately
cease and desist from providing, directly or indirectly, any type of
support — including training, weapons, arms, ammunition, supplies,
assistance, finances, direction or any other form of support — to any
nation, group, organization, movement, militia or individual
engaged in or planning to engage in military or paramilitary activities
in or against the People, State and Government of Bosnia and Herze-
govina.

3. That Yugoslavia (Serbia and Montenegro) itself must immedi-
ately cease and desist from any and all types of military or paramili-
tary activities by its own officials, agents, surrogates, or forces in or
against the People, State and Government of Bosnia and Herzego-
vina, and from any other use or threat of force in its relations with
Bosnia and Herzegovina.

4. That under the current circumstances, the Government of
Bosnia and Herzegovina has the right to seek and receive support
from other States in order to defend Itself and its People, including
by means of immediately obtaining military weapons, equipment,
and supplies.

5. That under the current circumstances, the Government of
Bosnia and Herzegovina has the right to request the immediate
assistance of any State to come to its defence, including by means of
immediately providing weapons, military equipment and supplies,
and armed forces (soldiers, sailors, airpeople, etc.).

6. That under the current circumstances, any State has the right to
come to the immediate defence of Bosnia and Herzegovina — at its
request — including by means of immediately providing weapons,
military equipment and supplies, and armed forces (soldiers, sailors,
and airpeople, etc.)” ;
9 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

4. Whereas on 20 March 1993, the day on which the Application and
the request for the indication of provisional measures were received in the
Registry, the Registrar notified the Government of Yugoslavia of the fil-
ing of the Application and the request, and communicated the text thereof
to it, by telefax, and sent certified copies of the Application and the
request to it by express registered post on 22 March 1993, in accordance
with Article 40, paragraph 2, of the Statute and Articles 38, paragraph 4,
and 73, paragraph 2, of the Rules of Court;

5. Whereas, pending the notification under Article 40, paragraph 3, of
the Statute and Article 42 of the Rules of Court, by transmittal of the
printed bilingual text of the Application to the Members of the United
Nations and other States entitled te appear before the Court, the Registrar
on 25 March 1993 informed those States of the filing of the Application
and of its subject-matter, and of the request for the indication of provi-
sional measures;

6. Whereas on 25 March 1993, the Registrar, in accordance with Ar-
ticle 43 of the Rules of Court, addressed the notification provided for in
Article 63, paragraph 1, of the Statute to the States, other than the Parties
to the dispute, which on the basis of information supplied by the Secre-
tary-General of the United Nations as depositary (ST/LEG/SER.E/10
and supplements to date) appeared to be parties to the Genocide Conven-
tion, and in addition addressed to the Secretary-General of the United
Nations the notification provided for in Article 34, paragraph 3, of the
Statute of the Court;

7. Whereas on 25 March 1993 the Registrar informed the Parties that
the Court would hold public sittings on 1 and 2 April 1993 to hear the
observations of the Parties on the request for the indication of provisional
measures; whereas on 29 March 1993 Yugoslavia requested the postpone-
ment of those sittings to a date in early May 1993, but the Court decided on
30 March 1993 that, in view of the urgency attaching under Article 74 of
the Rules of Court to a request for provisional measures, it was unable to
accede to that request;

8. Whereas on 31 March 1993, the Agent of Bosnia-Herzegovina filed
in the Registry of the Court a document dated 8 June 1992 which in the
contention of Bosnia-Herzegovina constituted a basis for the jurisdiction
of the Court additional to that specified in the Application;

9. Whereas in written observations, submitted to the Court on 1 April
1993, on the request for the indication of provisional measures, the Gov-
ernment of Yugoslavia

“recommends that the Court, pursuant to Article 41 of its Statute and
Article 73 of its Rules of Procedure, order the application of provi-
sional measures, in particular:

— 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;

10
10 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

— 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;

— toinstruct the authorities loyal to A. Izetbegovic to close immedi-
ately and disband all prisons and detention camps in the ‘Repub-
lic 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;

— 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 physical
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;

— toinstruct the authorities loyal to A. Izetbegovic to cease immedi-
ately any further destruction of Orthodox churches and places of
worship and of other Serb cultural heritage, and to release and
stop further mistreatment of al] Orthodox priests being in prison;

— todirect the authorities under the control of A. Izetbegovic to put
an end to all acts of discrimination based on nationality or reli-
gion and the practice of ‘ethnic cleansing’, including the discrimi-
nation related to the delivery of humanitarian aid, against the

5»,

Serb population in the ‘Republic of Bosnia and Herzegovina’ ”;

10. Having heard the oral observations on the request for provisional
measures presented at public hearings held on 1 and 2 April 1993 by the
following representatives :

on behalf of Bosnia-Herzegovina:

H.E. Mr. Muhamed Sacirbey and
Mr. Francis A. Boyle, Agents;

on behalf of Yugoslavia:

Mr. Ljubinko Zivkovic and
Mr. Shabtai Rosenne, Acting Agents;

11
11 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

and having received the replies of the Parties to a question put by a Mem-
ber of the Court at the hearings;

11. Having regard to the “Supplementary Submission” on the facts
alleged in support of the Application and the request transmitted to the
Court on 1 April 1993 by facsimile by the Agent of Bosnia-Herzegovina;

* *

12. Whereas in the written observations referred to in paragraph 9
above, Yugoslavia made what it termed “a preliminary objection with
regard to the legitimacy of the Applicant”, claiming that neither the Presi-
dent of the Republic of Bosnia and Herzegovina, Mr. A. Izetbegovic, who
appointed the Agents of that State and authorized the institution of the
present proceedings, nor the Government of the Republic of Bosnia and
Herzegovina, are legally elected; whereas Yugoslavia claims that the legit-
imacy and mandate of the Government and the President of the Republic
of Bosnia and Herzegovina are disputed not only by representatives of the
Serb people but also by representatives of the Croat people, and further-
more that the mandate of Mr. Izetbegovic expired on 20 December 1992,
and was challenged on this ground by the Prime Minister of Bosnia-
Herzegovina in a letter to the Chairman of the European Affairs Subcom-
mittee of the United States Senate Foreign Relations Committee dated
24 February 1993, circulated, at the request of the Prime Minister of
Bosnia-Herzegovina, by the Secretary-General of the United Nations as a
document of the General Assembly and of the Security Council;

13. Whereas the Agent of Bosnia-Herzegovina stated that Presi-
dent Izetbegovic is recognized by the United Nations as the legitimate
Head of State of the Republic of Bosnia and Herzegovina; whereas the
Court has been seised of the case on the authority of a Head of State,
treated as such in the United Nations; whereas the power of a Head of
State to act on behalf of the State in its international relations is univer-
sally recognized, and reflected in, for example, Article 7, paragraph 2 (a),
of the Vienna Convention on the Law of Treaties; whereas accordingly
the Court may, for the purposes of the present proceedings on a request
for provisional measures, accept the seisin as the act of that State;

*

14. Whereas on a request for provisional measures the Court need not,
before deciding whether or not to indicate them, finally satisfy itself that it
has jurisdiction on the merits of the case, yet it ought not to indicate such
measures unless the provisions invoked by the Applicant or found in the

12
12 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

Statute appear, prima facie, to afford a basis on which the jurisdiction of
the Court might be established; whereas this consideration embraces
jurisdiction both ratione personae and ratione materiae, even though,
inasmuch as almost all States are today parties to the Statute of the Court,
it is in general only the latter which requires to be considered;

15. Whereas Article 35, paragraph 1, of the Statute of the Court pro-
vides that “The Court shall be open to the States parties to the present
Statute”, and Article 93, paragraph 1, of the United Nations Charter that
“All Members of the United Nations are ipso facto parties to the Statute of
the International Court of Justice”: and whereas it is maintained in the
Application that “As Members of the United Nations Organization, the
Republic of Bosnia and Herzegovina and Yugoslavia (Serbia and Mon-
tenegro) are parties to the Statute”; whereas however in the Application
Bosnia-Herzegovina indicates that the “continuity” of Yugoslavia with
the former Socialist Federal Republic of Yugoslavia, a Member of the
United Nations, “has been vigorously contested by the entire interna-
tional community, and /sic] including by the United Nations Security
Council ... as well as by the General Assembly”, and reference is there
made to (inter alia) Security Council resolution 777 (1992) and General
Assembly resolution 47/1;

16. Whereas Security Council resolution 777 (1992) of 19 September
1992 reads, so far as pertinent:

“The Security Council,

Republic of Yugoslavia has ceased to exist,

Recalling in particular resolution 757 (1992) which notes that ‘the
claim by the Federal Republic of Yugoslavia (Serbia and Monte-
negro) to continue automatically the membership of the former
Socialist Federal Republic of Yugoslavia in the United Nations
has not been generally accepted’,

1. Considers that the Federal Republic of Yugoslavia (Serbia and
Montenegro) cannot continue automatically the membership of the
former Socialist Federal Republic of Yugoslavia in the United
Nations; and therefore recommends to the General Assembly that it
decide that the Federal Republic of Yugoslavia (Serbia and Mon-
tenegro) should apply for membership in the United Nations and
that it shall not participate in the work of the General Assembly”;

and whereas on 22 September 1992 the General Assembly adopted resolu-
tion 47/1, which reads, so far as pertinent:

13
13

APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

“The General Assembly,

Having received the recommendation of the Security Council of
19 September 1992 that the Federal Republic of Yugoslavia (Serbia
and Montenegro) should apply for membership in the United
Nations and that it shall not participate in the work of the General
Assembly . ..,

1. Considers that the Federal Republic of Yugoslavia (Serbia and
Montenegro) cannot continue automatically the membership of the
former Socialist Federal Republic of Yugoslavia in the United
Nations; and therefore decides that the Federal Republic of Yugo-
slavia (Serbia and Montenegro) should apply for membership in the
United Nations and that it shail not participate in the work of the
General Assembly”;

17. Whereas the Under-Secretary-General and Legal Counsel of the

United Nations addressed a letter on 29 September 1992 to the Permanent
Representatives to the United Nations of Bosnia-Herzegovina and Cro-
atia, in which he stated that the “considered view of the United Nations
Secretariat regarding the practical consequences of the adoption by the
General Assembly of resolution 47/1” was as follows:

14

“While the General Assembly has stated unequivocally that the
Federal Republic of Yugoslavia (Serbia and Montenegro) cannot
automatically continue the membership of the former Socialist Fed-
eral Republic of Yugoslavia in the United Nations and that the Fed-
eral Republic of Yugoslavia (Serbia and Montenegro) should apply
for membership in the United Nations, the only practical conse-
quence that the resolution draws is that the Federal Republic of
Yugoslavia (Serbia and Montenegro) shall not participate in the work
of the General Assembly. It is clear, therefore, that representatives of
the Federal Republic of Yugoslavia (Serbia and Montenegro) can no
longer participate in the work of the General Assembly, its subsidiary
organs, nor conferences and meetings convened by it.

On the other hand, the resolution neither terminates nor suspends
Yugoslavia’s membershipin the Organization. Consequently, the seat
and nameplate remain as before, but in Assembly bodies representa-
tives of the Federal Republic of Yugoslavia (Serbia and Montenegro)
cannot sit behind the sign ‘Yugoslavia’. Yugoslav missions at United
Nations Headquarters and offices may continue to function and may
receive and circulate documents. At Headquarters, the Secretariat
will continue to fly the flag of the old Yugoslavia as it is the last flag of
Yugoslavia used by the Secretariat. The resolution does not take
away the right of Yugoslavia to participate in the work of organs
14 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

other than Assembly bodies. The admission to the United Nations of
a new Yugoslavia under Article 4 of the Charter will terminate the
situation created by resolution 47/1” (doc. A/47/485);

18. Whereas, while the solution adopted is not free from legal difficult-
ies, the question whether or not Yugoslavia is a Member of the United
Nations and as such a party to the Statute of the Court is one which the
Court does not need to determine definitively at the present stage of the
proceedings;

19. Whereas Article 35 of the Statute, after providing that the Court
shall be open to the parties to the Statute, continues:

“2. The conditions under which the Court shall be open to other
States shall, subject to the special provisions contained in treaties in
force, be laid down by the Security Council, but in no case shall such
conditions place the parties in a position of inequality before the
Court”;

whereas the Court therefore considers that proceedings may validly be
instituted by a State against a State which is a party to such a special provi-
sion in a treaty in force, but is not party to the Statute, and independently
of the conditions laid down by the Security Council in its resolution 9 of
1946 (cf. S.S. “Wimbledon”, 1923, P.C.I.J., Series A, No. 1, p. 6); whereas a
compromissory clause in a multilateral convention, such as Article EX of
the Genocide Convention relied on by Bosnia-Herzegovina in the present
case, could, in the view of the Court, be regarded prima facie as a special
provision contained in a treaty in force; whereas accordingly if Bosnia-
Herzegovina and Yugoslavia are both parties to the Genocide Conven-
tion, disputes to which Article IX applies are in any event prima facie
within the jurisdiction ratione personae of the Court;

20. Whereas the Court must therefore now consider its jurisdiction
ratione materiae; whereas Article IX of the Genocide Convention, upon
which Bosnia-Herzegovina in its Application claims to found the jurisdic-
tion of the Court, provides that

“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”;

15
15 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

21. Whereas the former Socialist Federal Republic of Yugoslavia
signed the Genocide Convention on 11 December 1948, and deposited an
instrument of ratification, without reservation, on 29 August 1950;
whereas both Parties to the present case correspond to parts of the terri-
tory of the former Socialist Federal Republic of Yugoslavia;

22. Whereas at the time of the proclamation of the Federal Republic of
Yugoslavia (that is to say the Respondent in the present proceedings) on
27 April 1992, a formal declaration was adopted on its behalf to the effect
that

“The Federal Republic of Yugoslavia, continuing the State, inter-
national legal and political personality of the Socialist Federal Repub-
lic of Yugoslavia, shall strictly abide by all the commitments that the
Socialist Federal Republic of Yugoslavia assumed internationally” ;

and whereas this intention of Yugoslavia to honour the international trea-
ties of the former Yugoslavia was confirmed in an official Note from the
Permanent Mission of Yugoslavia to the United Nations, addressed to the
Secretary-General, dated 27 April 1992;

23. Whereas Bosnia-Herzegovina on 29 December 1992 transmitted to
the Secretary-General of the United Nations, the depositary of the Geno-
cide Convention, a Notice of Succession in the following terms:

“the Government of the Republic of Bosnia and Herzegovina, having
considered the Convention on the Prevention and Punishment of the
Crime of Genocide, of December 9, 1948, to which the former Social-
ist Federal Republic of Yugoslavia was a party, wishes to succeed to
the same and undertakes faithfully to perform and carry out all the
stipulations therein contained with effect from March 6, 1992, the
date on which the Republic of Bosnia and Herzegovina became inde-
pendent”;

and whereas the Secretary-General on 18 March 1993 communicated the
following Depositary Notification to the parties to the Genocide Conven-
tion:

“On 29 December 1992, the notification of succession by the Gov-
ernment of Bosnia and Herzegovina to the above-mentioned Con-
vention was deposited with the Secretary-General, with effect from
6 March 1992, the date on which Bosnia and Herzegovina assumed
responsibility for its international relations” ;

24. Whereas Yugoslavia has disputed the validity and effect of the
Notice of 29 December 1992, contending that no rule of general interna-
tional law gives Bosnia-Herzegovina the right to proclaim unilaterally
that it is now a party to the Genocide Convention merely because the for-
mer Socialist Federal Republic of Yugoslavia was a party to the Conven-
tion and the Convention was thus applicable to what is now the territory

16
16 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 FV 93)

of Bosnia-Herzegovina, that the “declaration of succession” procedure
provided for in the Vienna Convention on Succession of States in respect
of Treaties (which Convention is not in force) was evolved for, and is
applicable only in, cases of decolonization, and is therefore not open to
Bosnia-Herzegovina; and that the Notice of 29 December 1992, if con-
strued as an instrument of accession under Article XI of the Genocide
Convention, can only “become effective on the ninetieth day following
the deposit of the instrument” in accordance with Article XIII of the Con-
vention; whereas Yugoslavia concludes that the Court has jurisdiction
under the Genocide Convention, if at all, only in respect of facts subse-
quent to the expiration of 90 days from the Notice of 29 December 1992;

25. Whereas the Court observes that the Secretary-General has treated
Bosnia-Herzegovina, not as acceding, but as succeeding to the Genocide
Convention, and if this be so the question of the application of Articles XI
and XIII of the Convention would not arise; whereas however the Court
notes that even if Bosnia-Herzegovina were to be treated as having
acceded to the Genocide Convention, with the result that the Application
might be said to be premature when filed, “this circumstance would now
be covered” by the fact that the 90-day period elapsed between the filing
of the Application and the oral proceedings on the request (cf. Mavrom-
matis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2,
p. 34); whereas the Court, in deciding whether to indicate provisional
measures is concerned, not so much with the past as with the present and
with the future; whereas, accordingly even if its jurisdiction suffers from
the temporal limitation asserted by Yugoslavia —— which it does not now
have to decide — this is not necessarily a bar to the exercise of its powers
under Article 41 of the Statute;

26. Whereas Article IX of the Genocide Convention, to which both
Bosnia-Herzegovina and Yugoslavia are parties, thus appears to the
Court to afford a basis on which the jurisdiction of the Court might be
founded 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 III” of the Convention;

+

27. Whereas on 31 March 1993 the Agent of Bosnia-Herzegovina sub-
mitted, as constituting an additional basis of jurisdiction of the Court in
this case, a letter, dated 8 June 1992, addressed to the President of the
Arbitration Commission of the International Conference for Peace in

17
17 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

Yugoslavia by Mr. Momir Bulatovic, President of the Republic of Mon-
tenegro, and Mr. Slobodan Milosevic, President of the Republic of
Serbia; whereas the Court considers that the fact that this letter was not
invoked in the Application as a basis of jurisdiction does not in itself con-
stitute a bar to reliance being placed upon it in the further course of the
proceedings (cf. Military and Paramilitary Activities in and against Nicara-
gua (Nicaragua v. United States of America), I.C.J. Reports 1984,
pp. 426-427, para. 80);

28. Whereas the letter of 8 June 1992 referred to a letter which the Presi-
dent of the Arbitration Commission had on 3 June 1992 addressed to the
Presidents of the Republics of Bosnia and Herzegovina, Croatia, Macedo-
nia, Montenegro, Serbia and Slovenia and to the Presidency of the Fed-
eral Republic of Yugoslavia, requesting a statement of the position of
their respective countries on three questions raised by the Chairman of the
Conference for Peace in Yugoslavia; whereas the first question was
whether the Federal Republic of Yugoslavia was a new State calling for
recognition by the Member States of the European Community, the sec-
ond question was whether the dissolution of the former Socialist Federal
Republic of Yugoslavia could be regarded as complete, and the third was:

“If this is the case, on what basis and by what means should the
problems of the succession of States arising between the different
States emerging from the Socialist Federal Republic of Yugoslavia
be settled?”

29. Whereas in the joint letter of 8 June 1992, the President of Montene-
gro and the President of Serbia challenged the Commission’s competence
to give an opinion on the three questions submitted to it, and went on to
say, in the English translation supplied by Bosnia-Herzegovina from the
original Serbo-Croat:

“2. It is the principled position of FR Yugoslavia that all ques-
tions involved in the overall settlement of the Yugoslav crisis should
be resolved in an agreement between FR Yugoslavia and all the for-
mer Yugoslav republics.

3. FR Yugoslavia holds the view that all legal disputes which can-
not be settled by agreement between FR Yugoslavia and the former
Yugoslav republics should be taken to the International Court of Jus-
tice, as the principal judicial organ of the United Nations.

Accordingly, and in view of the fact that all the issues raised in your
letter are of a legal nature, FR Yugoslavia proposes that in the event
that agreement is not reached among the participants in the Confer-
ence, these questions should be adjudicated by the International
Court of Justice, in accordance with its Statute”;

18
18 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

30. Whereas Bosnia-Herzegovina interprets this text as an offer by the
Federal Republic of Yugoslavia to submit all outstanding legal disputes
between itself and Bosnia-Herzegovina to the Court, and in reliance on
this offer the Agent of Bosnia-Herzegovina at the hearings stated that
Bosnia-Herzegovina

“hereby submits to the Court all of the legal disputes between it and
... Yugoslavia that have been set forth in our Application [and]
Request for provisional measures”,

and submitted

“that this formal expression of intention to submit to the jurisdiction
of this Court by the appropriate authorities ... provides an addi-
tional jurisdiction for the Court to decide all the outstanding legal
disputes between us”;

and requested the Court “to consider this additional jurisdictional
basis . .. in support of [the] request for an indication of provisional mea-
sures”;

31. Whereas however at the present stage of the proceedings, and on
the basis of the information before the Court, itis by no means clear to the
Court whether the letter of 8 June 1992 was intended as an “immediate
commitment” by the two Presidents, binding on Yugoslavia, to accept
unconditionally the unilateral submission to the Court of a wide range of
legal disputes (cf. Aegean Sea Continental Shelf, I.C_J. Reports 1978, p. 44,
para. 108); or whether it was intended as a commitment solely to sub-
mission to the Court of the three questions raised by the Chairman of the
Committee; or as no more than the enunciation of a general policy of
favouring judicial settlement, which did not embody an offer or commit-
ment;

32. Whereas the Court is thus unable to regard the letter of 8 June 1992
as constituting a prima facie basis of jurisdiction in the present case and
must proceed therefore on the basis only that it has prima facie jurisdic-
tion, both ratione personae and ratione materiae, under Article IX of the
Genocide Convention;

*

33. Whereas Yugoslavia has drawn attention to the numerous resolu-
tions adopted by the United Nations Security Council concerning the
situation in the former Yugoslavia, and to the fact that in that respect the
Security Council has taken decisions on the basis of Article 25 of the Char-
ter, and has indicated expressly that it is acting under Chapter VII of the
Charter; whereas Yugoslavia contends that so long as the Security Coun-
cil is acting in accordance with Article 25 and under that Chapter,
“it would be premature and inappropriate for the Court to indicate provi-
sional measures, and certainly provisional measures of the type which

19
19 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

have been requested”; whereas the Court understands this objection as
being primarily addressed to those measures requested by Bosnia-Herze-
govina which go beyond matters within the scope of the Genocide Con-
vention, and which for that reason the Court cannot consider; whereas
however in any event, as the Court has observed in a previous case, while
there is in the Charter

“a provision for a clear demarcation of functions between the Gen-
eral Assembly and the Security Council, in respect of any dispute or
situation, that the former should not make any recommendation with
regard to that dispute or situation unless the Security Council so
requires, there is no similar provision anywhere in the Charter with
respect to the Security Council and the Court. The Council has func-
tions of a political nature assigned to it, whereas the Court exercises
purely judicial functions. Both organs can therefore perform their
separate but complementary functions with respect to the same
events” (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibil-
ity, Judgment, I.C.J. Reports 1984, pp. 434-435, para. 95);

34. Whereas the power of the Court to indicate provisional measures
under Article 41 of the Statute of the Court has as its object to preserve the
respective rights of the parties pending the decision of the Court, and pre-
supposes that irreparable prejudice shall not be caused to rights which are
the subject of dispute in judicial proceedings; and whereas it follows that
the Court must be concerned to preserve by such measures the rights
which may subsequently be adjudged by the Court to belong either to the
Applicant or to the Respondent;

35. Whereas the Court, having established the existence of a basis on
which its jurisdiction might be founded, ought not to indicate measures
for the protection of any disputed rights other than those which might
ultimately form the basis of a judgment in the exercise of that jurisdic-
tion; whereas accordingly the Court will confine its examination of the
measures requested, and of the grounds asserted for the request for
such measures, to those which fall within the scope of the Genocide
Convention;

36. Whereas the legal rights sought to be protected by the indication of
provisional measures are enumerated in the request of Bosnia-Herzego-
vina for the indication of such measures as follows:

20
20 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

“(a) the right of the citizens of Bosnia and Herzegovina physically
to survive as a People and as a State;
(b) the rights of the People of Bosnia and Herzegovina to life,
liberty, and security, as well as the other basic human rights
specified in the 1948 Universal Declaration of Human Rights;

(c) the right of the People and State of Bosnia and Herzegovina to
be free at all times from acts of genocide and other genocidal
acts perpetrated upon Them by Yugoslavia (Serbia and Mon-
tenegro), acting together with its agents and surrogates in
Bosnia and elsewhere;

(d) the right of the People and State of Bosnia and Herzegovina to
be free at all times from the use or threat of force against Them
by a foreign State acting in conjunction with its agents and sur-
rogates on Their sovereign territory and elsewhere;

(e) the right of Bosnia and Herzegovina to conduct its affairs and
to determine matters within its domestic jurisdiction without
interference or intervention by any foreign State acting directly
or by means of agents and surrogates, or both;

ff} the right of self-determination of the People of Bosnia and
Herzegovina;

(g) the basic right of sovereign existence for the People and State of
Bosnia and Herzegovina” ;

37. Whereas Yugoslavia similarly seeks the protection of certain rights
by the provisional measures recommended by it, set out in paragraph 9
above;

38. Whereas however, with respect to the measures requested both by
Bosnia-Herzegovina and by Yugoslavia, the Court is, as observed above,
confined to the consideration of such rights under the Genocide Conven-
tion as might form the subject-matter of a judgment of the Court in the
exercise of its jurisdiction under Article IX of that Convention;

39. Whereas the definition of genocide in Article II of the Genocide
Convention reads, so far as relevant:

“Tn 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”;

21
21 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 FV 93)

40. Whereas the Applicant has brought before the Court, in the State-
ment of Facts in its Application, and in the subsequent document entitled
“Supplementary Submission”, accounts of military and paramilitary
activities, including the bombing and shelling of towns and villages, the
destruction of houses and forced migration of civilians, and of acts of vio-
lence, including execution, murder, torture, and rape which, in the cir-
cumstances in which they have occurred, show, in the view of the
Applicant, that acts of genocide have been committed, and will continue
to be committed against, in particular, the Muslim inhabitants of Bosnia-
Herzegovina;

41. Whereas Bosnia-Herzegovina claims in the Application that the
acts there complained of have been committed by former members of the
Yugoslav People’s Army (YPA) and by Serb military and paramilitary
forces under the direction of, at the behest of, and with assistance from
Yugoslavia, and that Yugoslavia is therefore fuily responsible under inter-
national law for their activities; and whereas in its request for the indica-
tion of provisional measures Bosnia-Herzegovina similarly contends that
the facts stated in the Application show that Yugoslavia is committing acts
of genocide, both directly and by means of its agents and surrogates, and
that there is no reason to believe that Yugoslavia will voluntarily desist
from this course of conduct while the case is pending before the Court;

42. Whereas Yugoslavia observes that the situation is not one of
aggression by one State against another, but a civil war, and asserts that it
has no soldiers in the territory of Bosnia-Herzegovina, that it does not mil-
itarily support any side in the conflict, and that it does not support or abet
in any way the commission of crimes cited in the Application; that Yugo-
slavia and its subordinate bodies, including the military, have not com-
mitted and are not committing any of the acts to which Article III of the
Genocide Convention refers; and that the claims presented in the Appli-
cation are without foundation; and whereas Yugoslavia has also argued
that what Bosnia-Herzegovina is seeking is an interim judgment on the
merits of the case, which is not covered by Article 41 of the Statute (cf. Fac-
tory at Chorzow (Indemnities), Order of 21 November 1927, P.C.LJ.,
Series A, No. 12, p. 10);

43. Whereas Yugoslavia in its written observations on the request for
the indication of provisional measures “requests the Court to establish the
responsibility of the authorities” of Bosnia- Herzegovina for acts of geno-
cide against the Serb people in Bosnia-Herzegovina, and indicates its
intention to submit evidence to that effect; and whereas Yugoslavia
claimed at the hearings that genocide and genocidal acts are being carried
out against Serbs living in Bosnia-Herzegovina; whereas Bosnia-Herze-
govina for its part contends however that there is no basis in fact or in law
for the indication of provisional measures against it, there being no
credible evidence that its Government has committed acts of genocide
against anyone;

22
22 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

44. Whereas the Court, in the context of the present proceedings on a
request for provisional measures, has in accordance with Article 41 of the
Statute to consider the circumstances drawn to its attention as requiring
the indication of provisional measures, but cannot make definitive find-
ings of fact or of imputability, and the right of each Party to dispute the
facts alleged against it, to challenge the attribution to it of responsibility
for those facts, and to submit arguments in respect of the merits, must
remain unaffected by the Court’s decision;

45. Whereas Article I of the Genocide Convention provides that:

“The Contracting Parties confirm that genocide, whether commit-
ted in time of peace or in time of war, is a crime under international
law which they undertake to prevent and to punish” ;

whereas all parties to the Convention have thus undertaken “to prevent
and to punish” the crime of genocide; whereas in the view of the Court, in
the circumstances brought to its attention and outlined above in which
there is a grave risk of acts of genocide being committed, Yugoslavia and
Bosnia-Herzegovina, whether or not any such acts in the past may be
legally imputable to them, are under a clear obligation to do all in their
power to prevent the commission of any such acts in the future;

46. Whereas the Court is not called upon, for the purpose of its deci-
sion on the present request for the indication of provisional measures,
now to establish the existence of breaches of the Genocide Convention by
either Party, but to determine whether the circumstances require the indi-
cation of provisional measures to be taken by the Parties for the protection
of rights under the Genocide Convention; and whereas the Court is satis-
fied, taking into account the obligation imposed by Article I of the Geno-
cide Convention, that, the indication of measures is required for the
protection of such rights; and whereas Article 75, paragraph 2, of the
Rules of Court recognizes the power of the Court, when a request for pro-
visional measures has been made, to indicate measures that are in whole
or in part other than those requested, or that ought to be taken or complied
with by the party which has itself made the request;

47. Whereas Bosnia-Herzegovina also invokes Article VIII of the Gen-
ocide Convention, which provides that

“Any Contracting Party may call upon the competent organs of the
United Nations to take such action under the Charter of the United
Nations as they consider appropriate for the prevention and suppres-
sion of acts of genocide or any of the other acts enumerated in
article IIT”,

23
23 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

and Bosnia-Herzegovina calls upon the Court to “act immediately and
effectively to do whatever it can to prevent and suppress” the acts of geno-
cide complained of or threatened; whereas the Court considers Ar-
ticle VIII, even assuming it to be applicable to the Court as one of the
“competent organs of the United Nations”, appears not to confer on it any
functions or competence additional to those provided for in its Statute;
whereas accordingly the Court at this stage of the proceedings is not
required to do more than consider what provisional measures may be
called for under Article 41 of the Statute;

*

48. Whereas in its request for the indication of provisional measures
Bosnia-Herzegovina has also maintained that the Court should exercise
its power to indicate provisional measures with a view to preventing the
aggravation or extension of the dispute whenever it considers that circum-
stances so require; whereas from the information available to the Court it
is satisfied that there is a grave risk of action being taken which may aggra-
vate or extend the existing dispute over the prevention or punishment of
the crime of genocide, or render it more difficult of solution;

* *

49. Whereas the crime of genocide “shocks the conscience of mankind,
results in great losses to humanity . . . and is contrary to moral law and to
the spirit and aims of the United Nations”, in the words of General
Assembly resolution 96 (I) of 11 December 1946 on “the Crime of Geno-
cide”, which the Court recalled in its Advisory Opinion on Reservations on
the Convention on Genocide (I.C_J. Reports 1951, p. 23);

* *

50. Whereas in the light of the several considerations set out above, the
Court finds that the circumstances require it to indicate provisional mea-
sures, as provided by Article 41 of the Statute of the Court;

51. Whereas the decision given in the present proceedings in no way
prejudges the question of the jurisdiction of the Court to deal with the
merits of the case, or any questions relating to the admissibility of the
Application, or relating to the merits themselves, and leaves unaffected
the right of the Governments of Bosnia-Herzegovina and Yugoslavia to
submit arguments in respect of those questions;

x * x

24
24 APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

52. For these reasons,
THE COURT

Indicates, pending its final decision in the proceedings instituted on
20 March 1993 by the Republic of Bosnia and Herzegovina against the
Federal Republic of Yugoslavia (Serbia and Montenegro), the following
provisional measures:

A. (1) Unanimously,

The Government of the Federal Republic of Yugoslavia (Serbia and
Montenegro) should immediately, in pursuance of its undertaking in
the Convention on the Prevention and Punishment of the Crime of
Genocide of 9 December 1948, take all measures within its power to
prevent commission of the crime of genocide;

(2) By 13 votes to 1,

The Government of the Federal Republic of Yugoslavia (Serbia and
Montenegro) should in particular ensure that any military, paramili-
tary or irregular armed units which may be directed or supported by it,
as well as any organizations and persons which may be subject to its
control, direction or influence, do not commit any acts of genocide, of
conspiracy to commit genocide, of direct and public incitement to
commit genocide, or of complicity in genocide, whether directed
against the Muslim population of Bosnia and Herzegovina or against
any other national, ethnical, racial or religious group;

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda;
Judges Ago, Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabud-
deen, Aguilar Mawdsley, Weeramantry, Ranjeva, Ajibola;

AGAINST: Judge Tarassov;
B. Unanimously,

The Government of the Federal Republic of Yugoslavia (Serbia and
Montenegro) and the Government of the Republic of Bosnia and Her-
zegovina should not take any action and should ensure that no action
is taken which may aggravate or extend the existing dispute over the
prevention or punishment of the crime of genocide, or render it more
difficult of solution.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this eighth day of April, one thousand nine
hundred and ninety-three, in four copies, one of which will be placed in
the archives of the Court and the others transmitted respectively to the
Government of the Republic of Bosnia and Herzegovina, the Government

25
25 . APPLICATION OF GENOCIDE CONVENTION (ORDER 8 IV 93)

of the Federal Republic of Yugoslavia (Serbia and Montenegro), and to
the Secretary-General of the United Nations for transmission to the Secu-
rity Council.

(Signed) R. Y. JENNINGS,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Judge Tarassov appends a declaration to the Order of the Court.

(Initialled) R.Y.J.
(Initialled) E.V.O.

26


                           INTERNATIONAL COURT OF JUSTICE

                             REPORTS OF JUDGMENTS,
                          ADVISORY OPINIONS AND ORDERS

                    ARBITRAL AWARD OF 3 OCTOBER 1899
                             (GUYANA v. VENEZUELA)

                              ORDER OF 19 JUNE 2018

                                  2018
                           COUR INTERNATIONALE DE JUSTICE

                               RECUEIL DES ARRÊTS,
                        AVIS CONSULTATIFS ET ORDONNANCES

                   SENTENCE ARBITRALE DU 3 OCTOBRE 1899
                             (GUYANA c. VENEZUELA)

                           ORDONNANCE DU 19 JUIN 2018

4 CIJ1144.indb 1                                            21/02/19 15:46

                                               Official citation:
                                     Arbitral Award of 3 October 1899
                                (Guyana v. Venezuela), Order of 19 June 2018,
                                         I.C.J. Reports 2018, p. 402

                                            Mode officiel de citation :
                                    Sentence arbitrale du 3 octobre 1899
                              (Guyana c. Venezuela), ordonnance du 19 juin 2018,
                                          C.I.J. Recueil 2018, p. 402

                                                                                1144
                                                                 Sales number
                   ISSN 0074-4441                                No de vente:
                   ISBN 978-92-1-157343-5

4 CIJ1144.indb 2                                                                       21/02/19 15:46

                                                   19 JUNE 2018

                                                       ORDER

                    ARBITRAL AWARD OF 3 OCTOBER 1899
                          (GUYANA v. VENEZUELA)

                   SENTENCE ARBITRALE DU 3 OCTOBRE 1899
                          (GUYANA c. VENEZUELA)

                                                   19 JUIN 2018

                                                  ORDONNANCE

4 CIJ1144.indb 3                                                  21/02/19 15:46

                                                                                402

                                  COUR INTERNATIONALE DE JUSTICE

                                                   ANNÉE 2018
                                                                                2018
                                                                                19 juin
                                                    19 juin 2018                                      Rôle général
                                                                                no 171

                    SENTENCE ARBITRALE DU 3 OCTOBRE 1899
                                          (GUYANA c. VENEZUELA)

                                                 ORDONNANCE

                   Présents : M. Yusuf, président ; Mme Xue, vice-présidente ; MM. Tomka,
                               Abraham, Bennouna, Cançado Trindade, Mme Donoghue,
                               M. Gaja, Mme Sebutinde, MM. Bhandari, Robinson,
                               Gevorgian, Salam, juges ; M. Couvreur, greffier.

                     La Cour internationale de Justice,
                      Ainsi composée,
                      Après délibéré en chambre du conseil,
                      Vu les articles 48 et 53 du Statut de la Cour et les articles 31, 44, 48
                   et 79, paragraphes 2 et 3, de son Règlement,
                      Vu la requête enregistrée au Greffe de la Cour le 29 mars 2018, par
                   laquelle le Gouvernement de la République coopérative du Guyana (ci‑après
                   dénommée « Guyana ») a introduit une instance contre la République boli-
                   varienne du Venezuela (ci-après dénommée « Venezuela »), relativement à un
                   différend concernant « la validité juridique et l’effet contraignant de la sen-
                   tence arbitrale du 3 octobre 1899 relative à la frontière entre la colonie de la
                   Guyane britannique et les Etats‑Unis du Venezuela » ;
                      Considérant que, le jour même du dépôt de la requête, un exemplaire
                   signé de celle‑ci a été transmis au Venezuela ;
                      Considérant que le Guyana a désigné S. Exc. M. Carl B. Greenidge
                   comme agent, ainsi que sir Shridath Ramphal et Mme Audrey Waddell
                   comme coagents ;

                                                                                4

4 CIJ1144.indb 5                                                                                21/02/19 15:46

                           sentence arbitrale du 3 X 1899 (ordonnance 19 VI 18)               403

                      Considérant que, au cours de la réunion que le président de la Cour a
                   tenue, conformément à l’article 31 du Règlement, avec les représentants
                   des Parties, le 18 juin 2018, l’agent du Guyana a indiqué que son gouver-
                   nement souhaitait pouvoir disposer d’une période de neuf mois pour la
                   préparation de son mémoire ;
                      Considérant que, lors de cette même réunion, S. Exc. Mme Delcy Rodrí-
                   guez Gómez, vice‑présidente du Venezuela, a déclaré que son gouverne-
                   ment estimait que la Cour n’avait manifestement pas compétence et que
                   le Venezuela avait décidé de ne pas prendre part à l’instance ; et considé-
                   rant que la vice-présidente a remis au président de la Cour une lettre de
                   S. Exc. M. Nicolás Maduro Moros, président du Venezuela, datée du
                   18 juin 2018 ;
                      Considérant que, dans cette lettre, le président du Venezuela indique
                   notamment qu’« il n’y a aucune base pour la juridiction de la Cour » et
                   que « la République [b]olivarienne du Venezuela ne participera pas à la
                   procédure » ;
                      Considérant que, lors de la réunion susmentionnée, les représentants
                   du Guyana ont réitéré, en réponse à la déclaration de la vice-présidente
                   du Venezuela, que leur gouvernement souhaitait que la Cour poursuive
                   l’examen de l’affaire ;
                      Considérant que la possibilité pour le Venezuela de faire usage de ses
                   droits procéduraux en tant que Partie à l’affaire est préservée ;
                      Considérant que la Cour estime, en application de l’article 79, para-
                   graphe 2, de son Règlement, que, dans les circonstances de l’espèce, il est
                   nécessaire de régler en premier lieu la question de sa compétence, et qu’en
                   conséquence il doit être statué séparément, avant toute procédure sur le
                   fond, sur cette question ;
                      Considérant qu’il échet à la Cour d’être informée de tous les moyens de
                   fait et de droit sur lesquels les Parties se fondent en ce qui concerne sa
                   compétence,
                     Décide que les pièces de la procédure écrite porteront d’abord sur la
                   question de la compétence de la Cour ;
                     Fixe comme suit les dates d’expiration des délais pour le dépôt de ces
                   pièces :
                     Pour le mémoire de la République coopérative du Guyana, le
                   19 novembre 2018 ;
                     Pour le contre-mémoire de la République bolivarienne du Venezuela, le
                   18 avril 2019 ;
                     Réserve la suite de la procédure.

                     Fait en anglais et en français, le texte anglais faisant foi, au Palais de la
                   Paix, à La Haye, le dix‑neuf juin deux mille dix-huit, en trois exemplaires,

                                                                                5

4 CIJ1144.indb 7                                                                                21/02/19 15:46

                          sentence arbitrale du 3 X 1899 (ordonnance 19 VI 18)             404

                   dont l’un restera déposé aux archives de la Cour et les autres seront trans-
                   mis respectivement au Gouvernement de la République coopérative
                   du Guyana et au Gouvernement de la République bolivarienne du
                   Venezuela.

                                                                     Le président,
                                                        (Signé) Abdulqawi Ahmed Yusuf.
                                                                        Le greffier,
                                                           (Signé) Philippe Couvreur.

                                                                                6

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