                                               16 MARCH 2022

                                                  ORDER

ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
 PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

            (UKRAINE v. RUSSIAN FEDERATION)

                      ___________

ALLÉGATIONS DE GÉNOCIDE AU TITRE DE LA CONVENTION POUR
  LA PRÉVENTION ET LA RÉPRESSION DU CRIME DE GÉNOCIDE

           (UKRAINE c. FÉDÉRATION DE RUSSIE)

                                               16 MARS 2022

                                               ORDONNANCE

                                      TABLE OF CONTENTS

                                                                                Paragraphs

    CHRONOLOGY OF THE PROCEDURE                                                     1-16

 I. INTRODUCTION                                                                   17-23

II. PRIMA FACIE JURISDICTION                                                       24-49
    1.   General observations                                                      24-27
    2.   Existence of a dispute relating to the interpretation, application or
         fulfilment of the Genocide Convention                                     28-47
    3.   Conclusion as to prima facie jurisdiction                                 48-49

III. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN
    SUCH RIGHTS AND THE MEASURES REQUESTED                                         50-64

IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY                                      65-77

V. CONCLUSION AND MEASURES TO BE ADOPTED                                           78-85

    OPERATIVE CLAUSE                                                                86

                                          ___________

                                  INTERNATIONAL COURT OF JUSTICE

                                                   YEAR 2022
   2022
 16 March
General List
  No. 182
                                                  16 March 2022

                ALLEGATIONS OF GENOCIDE UNDER THE CONVENTION ON THE
                 PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

                                  (UKRAINE v. RUSSIAN FEDERATION)

                 REQUEST FOR THE INDICATION OF PROVISIONAL MEASURES

                                                    ORDER

     Present:    President DONOGHUE; Vice-President GEVORGIAN; Judges TOMKA, ABRAHAM,
                 BENNOUNA, YUSUF, XUE, SEBUTINDE, BHANDARI, ROBINSON, SALAM, IWASAWA,
                 NOLTE, CHARLESWORTH; Judge ad hoc DAUDET; Registrar GAUTIER.

            The International Court of Justice,

            Composed as above,

            After deliberation,

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

            Makes the following Order:

                                                  -2-

       1. On 26 February 2022, at 9.30 p.m., Ukraine filed in the Registry of the Court an Application
instituting proceedings against the Russian Federation concerning “a dispute . . . relating to the
interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment
of the Crime of Genocide” (hereinafter the “Genocide Convention” or the “Convention”).

      2. At the end of its Application, Ukraine

      “respectfully requests the Court to:

      (a) Adjudge and declare that, contrary to what the Russian Federation claims, no acts
          of genocide, as defined by Article III of the Genocide Convention, have been
          committed in the Luhansk and Donetsk oblasts of Ukraine.

      (b) Adjudge and declare that the Russian Federation cannot lawfully take any action
          under the Genocide Convention in or against Ukraine aimed at preventing or
          punishing an alleged genocide, on the basis of its false claims of genocide in the
          Luhansk and Donetsk oblasts of Ukraine.

      (c) Adjudge and declare that the Russian Federation’s recognition of the independence
          of the so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ on
          22 February 2022 is based on a false claim of genocide and therefore has no basis
          in the Genocide Convention.

      (d) Adjudge and declare that the ‘special military operation’ declared and carried out
          by the Russian Federation on and after 24 February 2022 is based on a false claim
          of genocide and therefore has no basis in the Genocide Convention.

      (e) Require that the Russian Federation provide assurances and guarantees of
          non-repetition that it will not take any unlawful measures in and against Ukraine,
          including the use of force, on the basis of its false claim of genocide.

      (f) Order full reparation for all damage caused by the Russian Federation as a
          consequence of any actions taken on the basis of Russia’s false claim of genocide.”

      3. In its Application, Ukraine seeks to found the Court’s jurisdiction on Article 36,
paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention.

       4. Together with the Application, Ukraine submitted a Request for the indication of provisional
measures with reference to Article 41 of the Statute and to Articles 73, 74 and 75 of the Rules of
Court.

     5. At the end of its Request, Ukraine asked the Court to indicate the following provisional
measures:

                                                  -3-

     “(a) The Russian Federation shall immediately suspend the military operations
          commenced on 24 February 2022 that have as their stated purpose and objective the
          prevention and punishment of a claimed genocide in the Luhansk and Donetsk
          oblasts of Ukraine.

      (b) The Russian Federation shall immediately ensure that any military 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, take no steps
          in furtherance of the military operations which have as their stated purpose and
          objective preventing or punishing Ukraine for committing genocide.

      (c) The Russian Federation shall refrain from any action and shall provide assurances
          that no action is taken that may aggravate or extend the dispute that is the subject of
          this Application, or render this dispute more difficult to resolve.

      (d) The Russian Federation shall provide a report to the Court on measures taken to
          implement the Court’s Order on Provisional Measures one week after such Order
          and then on a regular basis to be fixed by the Court.”

      6. Ukraine also requested the President of the Court

      “pursuant to Article 74 (4) of the Rules of Court . . . to call upon the Russian Federation
      to immediately halt all military actions in Ukraine pending the holding of a hearing, to
      enable any order the Court may make on the request for provisional measures to have
      its appropriate effects”.

       7. In the morning of 27 February 2022, the Registrar communicated by email to the Russian
Federation an advance copy of the Application and Request for the indication of provisional
measures. These documents were formally communicated to the Russian Federation on
28 February 2022, pursuant to Article 40, paragraph 2, of the Statute of the Court in respect of the
Application, and pursuant to Article 73, paragraph 2, of the Rules of Court in respect of the Request
for the indication of provisional measures. The Registrar also notified the Secretary-General of the
United Nations of the filing of the Application and the Request by Ukraine.

       8. Pending the notification provided for by Article 40, paragraph 3, of the Statute, the Registrar
informed all States entitled to appear before the Court of the filing of the Application and the Request
for the indication of provisional measures by a letter dated 2 March 2022.

        9. Since the Court included upon the Bench no judge of Ukrainian nationality, Ukraine
proceeded to exercise the right conferred upon it by Article 31 of the Statute to choose a judge ad hoc
to sit in the case; it chose Mr. Yves Daudet.

      10. By a letter dated 1 March 2022, the President of the Court, exercising the powers conferred
upon her under Article 74, paragraph 4, of the Rules of Court, called the attention of the Russian
Federation to the need to act in such a way as would enable any order the Court may make on the
request for provisional measures to have its appropriate effects.

                                                 -4-

       11. By letters dated 1 March 2022, the Registrar informed the Parties that, pursuant to
Article 74, paragraph 3, of the Rules, the Court had fixed 7 and 8 March 2022 as the dates for the
oral proceedings on the Request for the indication of provisional measures. The Registrar indicated
that the hearings would be held in a hybrid format, pursuant to which each Party could choose to
have a certain number of representatives present in the Great Hall of Justice, with other members of
the delegation participating by video-link.

      12. By a letter dated 5 March 2022, the Ambassador of the Russian Federation to the Kingdom
of the Netherlands indicated that his Government had decided not to participate in the oral
proceedings due to open on 7 March 2022.

     13. At the public hearing held in a hybrid format on 7 March 2022, oral observations on the
Request for the indication of provisional measures were presented by:

On behalf of Ukraine:                 Mr. Anton Korynevych,
                                      Mr. Jean-Marc Thouvenin,
                                      Mr. David M. Zionts,
                                      Ms Marney L. Cheek,
                                      Mr. Jonathan Gimblett,
                                      Mr. Harold Hongju Koh,
                                      Ms Oksana Zolotaryova.

      14. At the end of its oral observations, Ukraine asked the Court to indicate the following
provisional measures:

     “(a) The Russian Federation shall immediately suspend the military operations
          commenced on 24 February 2022 that have as their stated purpose and objective the
          prevention and punishment of a claimed genocide in the Luhansk and Donetsk
          oblasts of Ukraine.

      (b) The Russian Federation shall immediately ensure that any military 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, take no steps
          in furtherance of the military operations which have as their stated purpose and
          objective preventing or punishing Ukraine for committing genocide.

      (c) The Russian Federation shall refrain from any action and shall provide assurances
          that no action is taken that may aggravate or extend the dispute that is the subject of
          this Application, or render this dispute more difficult to resolve.

      (d) The Russian Federation shall provide a report to the Court on measures taken to
          implement the Court’s Order on Provisional Measures one week after such order
          and then on a regular basis to be fixed by the Court.”

                                                   -5-

       15. Under cover of a letter dated 7 March 2022 received in the Registry shortly after the closure
of the hearing, the Ambassador of the Russian Federation to the Kingdom of the Netherlands
communicated to the Court a document setting out “the position of the Russian Federation regarding
the lack of jurisdiction of the Court in t[he] case”.

       16. Since the Government of the Russian Federation did not appear at the oral proceedings, no
formal request was presented by that Government. However, in the document communicated to the
Court on 7 March 2022, the Russian Federation contends that the Court lacks jurisdiction to entertain
the case and “requests the Court to refrain from indicating provisional measures and to remove the
case from its list”.

                                                    *

                                               *         *

                                          I. INTRODUCTION

       17. The context in which the present case comes before the Court is well-known. On
24 February 2022, the President of the Russian Federation, Mr. Vladimir Putin, declared that he had
decided to conduct a “special military operation” against Ukraine. Since then, there has been intense
fighting on Ukrainian territory, which has claimed many lives, has caused extensive displacement
and has resulted in widespread damage. The Court is acutely aware of the extent of the human tragedy
that is taking place in Ukraine and is deeply concerned about the continuing loss of life and human
suffering.

       18. The Court is profoundly concerned about the use of force by the Russian Federation in
Ukraine, which raises very serious issues of international law. The Court is mindful of the purposes
and principles of the United Nations Charter and of its own responsibilities in the maintenance of
international peace and security as well as in the peaceful settlement of disputes under the Charter
and the Statute of the Court. It deems it necessary to emphasize that all States must act in conformity
with their obligations under the United Nations Charter and other rules of international law, including
international humanitarian law.

       19. The ongoing conflict between the Parties has been addressed in the framework of several
international institutions. The General Assembly of the United Nations adopted a resolution referring
to many aspects of the conflict on 2 March 2022 (doc. A/RES/ES-11/1). The present case before the
Court, however, is limited in scope, as Ukraine has instituted these proceedings only under the
Genocide Convention.

                                                    *

                                                  -6-

      20. The Court regrets the decision taken by the Russian Federation not to participate in the
oral proceedings on the request for the indication of provisional measures, as set out in the
above-mentioned letter of 5 March 2022 (see paragraph 12 above).

       21. The non-appearance of a party has a negative impact on the sound administration of justice,
as it deprives the Court of assistance that a party could have provided to it. Nevertheless, the Court
must proceed in the discharge of its judicial function at any phase of the case (Arbitral Award of
3 October 1899 (Guyana v. Venezuela), Jurisdiction of the Court, Judgment, I.C.J. Reports 2020,
p. 464, para. 25; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, p. 23, para. 27).

        22. Though formally absent from the proceedings, non-appearing parties sometimes submit to
the Court letters and documents in ways and by means not contemplated by its Rules (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 25, para. 31). It is valuable for the Court to know the views of both
parties in whatever form those views may have been expressed (ibid.). The Court will therefore take
account of the document communicated by the Russian Federation on 7 March 2022 to the extent
that it finds this appropriate in discharging its duties.

       23. The Court recalls that the non-appearance of one of the States concerned cannot by itself
constitute an obstacle to the indication of provisional measures (United States Diplomatic and
Consular Staff in Tehran (United States of America v. Iran), Provisional Measures, Order of
15 December 1979, I.C.J. Reports 1979, p. 13, para. 13). It emphasizes that the non-participation of
a party in the proceedings at any stage of the case cannot, in any circumstances, affect the validity of
its decision (cf. Arbitral Award of 3 October 1899 (Guyana v. Venezuela), Jurisdiction of the Court,
Judgment, I.C.J. Reports 2020, p. 464, para. 26; Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 23,
para. 27). Should the present case extend beyond the current phase, the Russian Federation, which
remains a Party to the case, will be able, if it so wishes, to appear before the Court to present its
arguments (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 142-143, para. 284).

                                   II. PRIMA FACIE JURISDICTION

                                       1. General observations

       24. The Court may indicate provisional measures only if the provisions relied on by the
applicant appear, prima facie, to afford a basis on which its jurisdiction could be founded, but it need
not satisfy itself in a definitive manner that it has jurisdiction as regards the merits of the case (see,
for example, Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J.
Reports 2020, p. 9, para. 16).

      25. In the present case, Ukraine seeks to found the jurisdiction of the Court on Article 36,
paragraph 1, of the Statute of the Court and on Article IX of the Genocide Convention
(see paragraph 3 above). The Court must therefore first determine whether those provisions

                                                    -7-

prima facie confer upon it jurisdiction to rule on the merits of the case, enabling it  if the other
necessary conditions are fulfilled  to indicate provisional measures.

      26. Article IX of the Genocide Convention reads as follows:

             “Disputes between the Contracting Parties relating to the interpretation,
      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.”

       27. Ukraine and the Russian Federation are both parties to the Genocide Convention. Ukraine
deposited its instrument of ratification on 15 November 1954 with a reservation to Article IX of the
Convention; on 20 April 1989, the depositary received notification that this reservation had been
withdrawn. The Russian Federation is a party to the Genocide Convention as the State continuing
the legal personality of the Union of Soviet Socialist Republics, which deposited its instrument of
ratification on 3 May 1954 with a reservation to Article IX of the Convention; on 8 March 1989, the
depositary received notification that this reservation had been withdrawn.

             2. Existence of a dispute relating to the interpretation, application or
                             fulfilment of the Genocide Convention

        28. Article IX of the Genocide Convention makes the Court’s jurisdiction conditional on the
existence of a dispute relating to the interpretation, application or fulfilment of the Convention.
According to the established case law of the Court, a dispute is “a disagreement on a point of law or
fact, a conflict of legal views or of interests” between parties (Mavrommatis Palestine Concessions,
Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 11). In order for a dispute to exist, “[i]t must be
shown that the claim of one party is positively opposed by the other” (South West Africa (Ethiopia v.
South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962,
p. 328). The two sides must “‘hold clearly opposite views concerning the question of the performance
or non-performance of certain’ international obligations” (Alleged Violations of Sovereign Rights
and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections,
Judgment, I.C.J. Reports 2016 (I), p. 26, para. 50, citing Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 74). To
determine whether a dispute exists in the present case, the Court cannot limit itself to noting that one
of the Parties maintains that the Convention applies, while the other denies it (see Application of the
International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United
Arab Emirates), Provisional Measures, Order of 23 July 2018, I.C.J. Reports 2018 (II), p. 414,
para. 18).

      29. Since Ukraine has invoked as the basis of the Court’s jurisdiction the compromissory
clause in an international convention, the Court must ascertain, at the present stage of the
proceedings, whether it appears that the acts complained of by the Applicant are capable of falling
within the scope of that convention ratione materiae (cf. Jadhav (India v. Pakistan), Provisional
Measures, Order of 18 May 2017, I.C.J. Reports 2017, p. 239, para. 30).

                                                *         *

                                                 -8-

       30. Ukraine contends that a dispute exists between it and the Russian Federation relating to
the interpretation, application or fulfilment of the Genocide Convention. It maintains that the Parties
disagree on whether genocide, as defined in Article II of the Convention, has occurred or is occurring
in the Luhansk and Donetsk oblasts of Ukraine and whether Ukraine has committed genocide. In this
regard, the Applicant submits that it profoundly disagrees with the unsubstantiated allegation of the
Russian Federation that genocide has taken place in Ukraine and that it has made this known to the
Russian Federation on multiple occasions since September 2014, including through a statement by
the Minister for Foreign Affairs of Ukraine before the General Assembly of the United Nations on
23 February 2022.

       31. Ukraine further argues that the dispute between the Parties concerns the question whether,
as a consequence of the Russian Federation’s unilateral assertion that genocide is occurring, the
Russian Federation has a lawful basis to take military action in and against Ukraine to prevent and
punish genocide pursuant to Article I of the Genocide Convention. Ukraine considers that the
Russian Federation “has turned the Genocide Convention on its head”, making a false claim of
genocide as a basis for actions on its part that constitute grave violations of the human rights of
millions of people across Ukraine. It asserts that, rather than taking military action to prevent and
punish genocide, the Russian Federation should have seised the organs of the United Nations under
Article VIII of the Convention or seised the Court under Article IX thereof. Ukraine states that it
vehemently disagrees with the Russian Federation’s interpretation, application and fulfilment of the
Convention. Referring, inter alia, to a statement by the Ukrainian Ministry of Foreign Affairs of
26 February 2022, Ukraine asserts that the Russian Federation “could not have been unaware, that
its views were ‘positively opposed’” by Ukraine.

                                                  *

       32. In the document communicated to the Court on 7 March 2022, the Russian Federation
states that the only basis for jurisdiction referred to by Ukraine is the dispute resolution clause
contained in Article IX of the Genocide Convention. However, according to the Respondent, it is
clear from the plain language of the Convention that it does not regulate the use of force between
States. The Respondent submits that, in order to “glue” the Convention to the use of force for the
purposes of invoking its dispute resolution clause, Ukraine has claimed that the Russian Federation
commenced its “special military operation” on the basis of allegations of genocide committed by
Ukraine. The Russian Federation asserts that, in reality, its “special military operation” on the
territory of Ukraine is based on Article 51 of the United Nations Charter and customary international
law and that the Convention cannot provide a legal basis for a military operation, which is beyond
the scope of the Convention.

       33. The Respondent further states that the legal basis for the “special military operation” was
communicated on 24 February 2022 to the Secretary-General of the United Nations and the
United Nations Security Council by the Permanent Representative of the Russian Federation to the
United Nations in the form of a notification under Article 51 of the United Nations Charter
(circulated as document S/2022/154 of the Security Council). The Russian Federation contends that,

                                                     -9-

while the address of President Putin “to the citizens of Russia” that was appended to the notification
may in certain contexts have referred to genocide, this reference is not the same as the invocation of
the Convention as a legal justification for its operation, nor does it indicate that the Russian
Federation recognizes the existence of a dispute under the Convention. The Russian Federation
emphasizes that there are no references to the Genocide Convention in the address made by its
President on 24 February 2022.

      34. The Russian Federation therefore concludes that Ukraine’s “Application and Request
manifestly fall beyond the scope of the Convention and thus the jurisdiction of the Court”; it asks the
Court to remove the case from its List.

                                                 *         *

       35. The Court recalls that, for the purposes of deciding whether there was a dispute between
the Parties at the time of the filing of the Application, it takes into account in particular any statements
or documents exchanged between the Parties, as well as any exchanges made in multilateral settings.
In so doing, it pays special attention to the author of the statement or document, their intended or
actual addressee, and their content. The existence of a dispute is a matter for objective determination
by the Court; it is a matter of substance, and not a question of form or procedure (see Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 12, para. 26).

      36. The Court notes that the Applicant disputes the Russian Federation’s allegation that
Ukraine has committed or is committing genocide in the Luhansk and Donetsk regions of Ukraine.
Ukraine also asserts that nothing in the Convention authorizes the Russian Federation to use force
against Ukraine as a means to fulfil its obligation under Article I thereof to prevent and punish
genocide.

       37. In this regard the Court observes that, since 2014, various State organs and senior
representatives of the Russian Federation have referred, in official statements, to the commission of
acts of genocide by Ukraine in the Luhansk and Donetsk regions. The Court observes, in particular,
that the Investigative Committee of the Russian Federation  an official State organ  has,
since 2014, instituted criminal proceedings against high-ranking Ukrainian officials regarding the
alleged commission of acts of genocide against the Russian-speaking population living in the
above-mentioned regions “in violation of the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide”.

      38. The Court recalls that, in an address made on 21 February 2022, the President of the
Russian Federation, Mr. Vladimir Putin, described the situation in Donbass as a “horror and
genocide, which almost 4 million people are facing”.

       39. By a letter dated 24 February 2022 (see paragraph 33 above), the Permanent
Representative of the Russian Federation to the United Nations requested the Secretary-General to
circulate, as a document of the Security Council, the “text of the address of the President

                                                 - 10 -

of the Russian Federation, Vladimir Putin, to the citizens of Russia, informing them of the measures
taken in accordance with Article 51 of the Charter of the United Nations in exercise of the right of
self-defence”. In his address, pronounced on 24 February 2022, the President of the Russian
Federation explained that he had decided, “in accordance with Article 51 (chapter VII) of the Charter
of the United Nations . . . to conduct a special military operation with the approval of the Federation
Council of Russia and pursuant to the treaties on friendship and mutual assistance with the Donetsk
People’s Republic and the Lugansk People’s Republic”. He specified that the “purpose” of the special
operation was “to protect people who have been subjected to abuse and genocide by the Kiev regime
for eight years”. He stated that the Russian Federation had to stop “a genocide” against millions of
people and that it would seek the prosecution of those who had committed numerous bloody crimes
against civilians, including citizens of the Russian Federation.

       40. The Permanent Representative of the Russian Federation to the United Nations, referring
to the address by the President of the Russian Federation of 24 February 2022, explained at a meeting
of the Security Council on Ukraine that “the purpose of the special operation [was] to protect people
who ha[d] been subjected to abuse and genocide by the Kyiv regime for eight years”.

       41. Two days later, the Permanent Representative of the Russian Federation to the European
Union stated in an interview that the operation was a “peace enforcement special military operation”
carried out in an “effort aimed at de-Nazification”, adding that people had been actually
“exterminated” and that “the official term of genocide as coined in international law[, if one] read[s]
the definition, . . . fits pretty well”.

       42. In response to the Russian Federation’s allegations and its military actions, the Ministry of
Foreign Affairs of Ukraine issued a statement on 26 February 2022, saying that Ukraine “strongly
denies Russia’s allegations of genocide” and disputes “any attempt to use such manipulative
allegations as an excuse for Russia’s unlawful aggression”.

      43. At the present stage of these proceedings, the Court is not required to ascertain whether
any violations of obligations under the Genocide Convention have occurred in the context of the
present dispute. Such a finding could be made by the Court only at the stage of the examination of
the merits of the present case. At the stage of making an order on a request for the indication of
provisional measures, the Court’s task is to establish whether the acts complained of by Ukraine
appear to be capable of falling within the provisions of the Genocide Convention.

       44. The Court recalls that, while it is not necessary for a State to refer expressly to a specific
treaty in its exchanges with the other State to enable it later to invoke the compromissory clause of
that instrument to institute proceedings before the Court (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1984, pp. 428-429, para. 83), the exchanges must refer to the subject-matter
of the treaty with sufficient clarity to enable the State against which a claim is made to ascertain that
there is, or may be, a dispute with regard to that subject-matter (Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian
Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011 (I), p. 85, para. 30). The Court

                                                  - 11 -

considers that, in the present proceedings, the evidence in the case file demonstrates prima facie that
statements made by the Parties referred to the subject-matter of the Genocide Convention in a
sufficiently clear way to allow Ukraine to invoke the compromissory clause in this instrument as a
basis for the Court’s jurisdiction.

      45. The statements made by the State organs and senior officials of the Parties indicate a
divergence of views as to whether certain acts allegedly committed by Ukraine in the Luhansk and
Donetsk regions amount to genocide in violation of its obligations under the Genocide Convention,
as well as whether the use of force by the Russian Federation for the stated purpose of preventing
and punishing alleged genocide is a measure that can be taken in fulfilment of the obligation to
prevent and punish genocide contained in Article I of the Convention. In the Court’s view, the acts
complained of by the Applicant appear to be capable of falling within the provisions of the Genocide
Convention.

       46. The Court recalls the Russian Federation’s assertion that its “special military operation” is
based on Article 51 of the United Nations Charter and customary international law (see
paragraphs 32-33). The Court observes in this respect that certain acts or omissions may give rise to
a dispute that falls within the ambit of more than one treaty (cf. Alleged Violations of the 1955 Treaty
of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of
America), Preliminary Objections, Judgment of 3 February 2021, para. 56). The above-referenced
assertion of the Russian Federation does not therefore preclude a prima facie finding by the Court
that the dispute presented in the Application relates to the interpretation, application or fulfilment of
the Genocide Convention.

       47. The Court finds therefore that the above-mentioned elements are sufficient at this stage to
establish prima facie the existence of a dispute between the Parties relating to the interpretation,
application or fulfilment of the Genocide Convention.

                            3. Conclusion as to prima facie jurisdiction

       48. In light of the foregoing, the Court concludes that, prima facie, it has jurisdiction pursuant
to Article IX of the Genocide Convention to entertain the case.

      49. Given the above conclusion, the Court considers that it cannot accede to the Russian
Federation’s request that the case be removed from the General List for manifest lack of jurisdiction.

               III. THE RIGHTS WHOSE PROTECTION IS SOUGHT AND THE LINK BETWEEN
                           SUCH RIGHTS AND THE MEASURES REQUESTED

       50. The power of the Court to indicate provisional measures under Article 41 of the Statute
has as its object the preservation of the respective rights claimed by the parties in a case, pending its
decision on the merits thereof. It follows that the Court must be concerned to preserve by such
measures the rights which may subsequently be adjudged by it to belong to either party. Therefore,
the Court may exercise this power only if it is satisfied that the rights asserted by the party requesting

                                                  - 12 -

such measures are at least plausible (see, for example, Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional
Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 18, para. 43).

       51. At this stage of the proceedings, however, the Court is not called upon to determine
definitively whether the rights which Ukraine wishes to see protected exist; it need only decide
whether the rights claimed by Ukraine on the merits, and for which it is seeking protection, are
plausible. Moreover, a link must exist between the rights whose protection is sought and the
provisional measures being requested (ibid., para. 44).

                                                *      *

        52. In the present proceedings, Ukraine argues that it seeks provisional measures to protect its
rights “not to be subject to a false claim of genocide”, and “not to be subjected to another State’s
military operations on its territory based on a brazen abuse of Article I of the Genocide Convention”.
It states that the Russian Federation has acted inconsistently with its obligations and duties, as set out
in Articles I and IV of the Convention.

       53. Ukraine contends that it has a right to demand good faith performance of obligations under
the Genocide Convention by the Russian Federation, in accordance with the object and purpose of
the Convention. It states that the Russian Federation has abused and misused the rights and duties
stipulated in the Convention and that the “special military operation” of the Respondent is an
aggression undertaken “under the guise” of the duty to prevent and punish genocide, enshrined in
Articles I and IV of the Convention, and that it frustrates the object and purpose of the Convention.

       54. The Applicant further submits that it has a right under the Convention not to be harmed by
the Russian Federation’s misuse and abuse of the Convention. It considers in particular that it has a
right not to suffer grave harm as a result of a military action falsely cloaked as one undertaken to
prevent and punish genocide.

       55. Ukraine asserts that the above-mentioned rights are grounded in a possible interpretation
of the Genocide Convention and are therefore plausible.

                                                *      *

                                                 - 13 -

       56. The Court observes that, in accordance with Article I of the Convention, all States parties
thereto have undertaken “to prevent and to punish” the crime of genocide. Article I does not specify
the kinds of measures that a Contracting Party may take to fulfil this obligation. However, the
Contracting Parties must implement this obligation in good faith, taking into account other parts of
the Convention, in particular Articles VIII and IX, as well as its Preamble.

       Pursuant to Article VIII of the Convention, a Contracting Party that considers that genocide is
taking place in the territory of another 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 suppression of acts of genocide or any of the other acts enumerated
in article III”. In addition, pursuant to Article IX, such a Contracting Party may submit to the Court
a dispute relating to the interpretation, application or fulfilment of the Convention.

        57. A Contracting Party may resort to other means of fulfilling its obligation to prevent and
punish genocide that it believes to have been committed by another Contracting Party, such as
bilateral engagement or exchanges within a regional organization. However, the Court emphasizes
that, in discharging its duty to prevent genocide, “every State may only act within the limits permitted
by international law”, as was stated in a previous case brought under the Convention (Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 221, para. 430).

      58. The acts undertaken by the Contracting Parties “to prevent and to punish” genocide must
be in conformity with the spirit and aims of the United Nations, as set out in Article 1 of the
United Nations Charter. In this regard, the Court recalls that, under Article 1 of the United Nations
Charter, the purposes of the United Nations are, inter alia,

      “[t]o maintain international peace and security, and to that end: to take effective
      collective measures for the prevention and removal of threats to the peace, and for the
      suppression of acts of aggression or other breaches of the peace, and to bring about by
      peaceful means, and in conformity with the principles of justice and international law,
      adjustment or settlement of international disputes or situations which might lead to a
      breach of the peace”.

       59. The Court can only take a decision on the Applicant’s claims if the case proceeds to the
merits. At the present stage of the proceedings, it suffices to observe that the Court is not in
possession of evidence substantiating the allegation of the Russian Federation that genocide has been
committed on Ukrainian territory. Moreover, it is doubtful that the Convention, in light of its object
and purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State
for the purpose of preventing or punishing an alleged genocide.

      60. Under these circumstances, the Court considers that Ukraine has a plausible right not to be
subjected to military operations by the Russian Federation for the purpose of preventing and
punishing an alleged genocide in the territory of Ukraine.

                                                *     *

                                                  - 14 -

      61. The Court now turns to the condition of the link between the rights claimed by Ukraine
and the provisional measures requested.

                                                 *      *

       62. Ukraine claims that there is a clear link between the plausible rights that it seeks to preserve
and the first two provisional measures that it requests. In particular, the first two provisional measures
share a direct link to Ukraine’s right under Article I to good faith performance of the Convention by
any State party.

                                                 *      *

       63. The Court has already found that Ukraine is asserting a right that is plausible under the
Genocide Convention (see paragraphs 50-60 above). The Court considers that, by their very nature,
the first two provisional measures sought by Ukraine (see paragraph 14 above) are aimed at
preserving the right of Ukraine that the Court has found to be plausible. As to the third and fourth
provisional measures requested by Ukraine, the question of their link with that plausible right does
not arise, in so far as such measures would be directed at preventing any action which may aggravate
or extend the existing dispute or render it more difficult to resolve, and at providing information on
the compliance with any specific provisional measure indicated by the Court (cf. Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar),
Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 24, para. 61).

      64. The Court concludes, therefore, that a link exists between the right of Ukraine that the
Court has found to be plausible and the requested provisional measures.

                       IV. RISK OF IRREPARABLE PREJUDICE AND URGENCY

      65. The Court, pursuant to Article 41 of its Statute, has the power to indicate provisional
measures when irreparable prejudice could be caused to rights which are the subject of judicial
proceedings or when the alleged disregard of such rights may entail irreparable consequences (see,
for example, ibid., p. 24, para. 64, referring to Alleged Violations of the 1955 Treaty of Amity,
Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America),
Provisional Measures, Order of 3 October 2018, I.C.J. Reports 2018 (II), p. 645, para. 77).

       66. However, the power of the Court to indicate provisional measures will be exercised only
if there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will
be caused to the rights claimed before the Court gives its final decision. The condition of urgency is
met when the acts susceptible of causing irreparable prejudice can “occur at any moment” before the
Court makes a final decision on the case (ibid., para. 65). The Court must therefore consider whether
such a risk exists at this stage of the proceedings.

                                                  - 15 -

       67. The Court is not called upon, for the purposes of its decision on the Request for the
indication of provisional measures, to establish the existence of breaches of obligations under the
Genocide Convention, but to determine whether the circumstances require the indication of
provisional measures for the protection of the right found to be plausible. It cannot at this stage make
definitive findings of fact, and the right of each Party to submit arguments in respect of the merits
remains unaffected by the Court’s decision on the Request for the indication of provisional measures.

                                                 *       *

      68. Ukraine submits that there is an urgent need to protect its people from the irreparable harm
caused by the Russian Federation’s military measures that have been launched on a pretext of
genocide. It emphasizes that the invasion by the Russian Federation has resulted in numerous
casualties among Ukrainian civilians and military personnel, the bombing of numerous cities across
Ukraine, and the displacement of over one and a half million Ukrainian civilians both within Ukraine
and across its international borders.

        69. Ukraine asserts that, in assessing whether the condition of urgency is satisfied in cases
involving ongoing conflict, the Court typically considers whether the population at risk is particularly
vulnerable, the fragility of the overall situation, including the likelihood of aggravation of the dispute,
and the risk of reoccurrence of harm. Ukraine submits that the Court has frequently stated that loss
of life constitutes an irreparable harm.

       70. In this regard, Ukraine contends that thousands of people have already been killed in the
conflict and that, with every day that passes, more lives will be lost and probably at an accelerating
rate. It argues that the refugee crisis is another example of irreparable harm, pointing to the
uncertainty that these displaced individuals will ever be able to return to their homes and the lasting
psychological trauma the conflict will cause them even if they are resettled. It emphasizes that the
population is extremely vulnerable, with many lacking food, electricity and water; that the overall
situation is extremely fragile; and that the risk of aggravation of the crisis is acute. Ukraine further
asserts that the Russian Federation’s military action poses grave environmental risks, not only to
Ukraine but also for the wider region, referring in particular to the dangers posed to Ukraine’s civil
nuclear industry and toxic smoke released by attacks on fuel depots.

      71. Ukraine submits that the seriousness of the situation unambiguously satisfies the
conditions of irreparable harm and urgency necessary for the imposition of provisional measures.

                                                     *

                                                 - 16 -

      72. The Russian Federation, for its part, submits that, contrary to what Ukraine asserts, the
urgency must pertain not to the situation in general but to the protection of rights provided for by the
Convention.

                                                *     *

       73. Having previously determined that Ukraine can plausibly assert a right under the Genocide
Convention and that there is a link between this right and the provisional measures requested, the
Court now considers whether irreparable prejudice could be caused to this right and whether there is
urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused
to this right before the Court gives its final decision.

      74. The Court considers that the right of Ukraine that it has found to be plausible (see
paragraph 60 above) is of such a nature that prejudice to it is capable of causing irreparable harm.
Indeed, any military operation, in particular one on the scale carried out by the Russian Federation
on the territory of Ukraine, inevitably causes loss of life, mental and bodily harm, and damage to
property and to the environment.

       75. The Court considers that the civilian population affected by the present conflict is
extremely vulnerable. The “special military operation” being conducted by the Russian Federation
has resulted in numerous civilian deaths and injuries. It has also caused significant material damage,
including the destruction of buildings and infrastructure. Attacks are ongoing and are creating
increasingly difficult living conditions for the civilian population. Many persons have no access to
the most basic foodstuffs, potable water, electricity, essential medicines or heating. A very large
number of people are attempting to flee from the most affected cities under extremely insecure
conditions.

       76. In this regard, the Court takes note of resolution A/RES/ES-11/1 of 2 March 2022, of the
General Assembly of the United Nations, which, inter alia, “[e]xpress[es] grave concern at reports
of attacks on civilian facilities such as residences, schools and hospitals, and of civilian casualties,
including women, older persons, persons with disabilities, and children”, “[r]ecogniz[es] that the
military operations of the Russian Federation inside the sovereign territory of Ukraine are on a scale
that the international community has not seen in Europe in decades and that urgent action is needed
to save this generation from the scourge of war”, “[c]ondemn[s] the decision of the Russian
Federation to increase the readiness of its nuclear forces” and “[e]xpress[es] grave concern at the
deteriorating humanitarian situation in and around Ukraine, with an increasing number of internally
displaced persons and refugees in need of humanitarian assistance”.

       77. In light of these circumstances, the Court concludes that disregard of the right deemed
plausible by the Court (see paragraph 60 above) could cause irreparable prejudice to this right and
that there is urgency, in the sense that there is a real and imminent risk that such prejudice will be
caused before the Court makes a final decision in the case.

                                                 - 17 -

                         V. CONCLUSION AND MEASURES TO BE ADOPTED

       78. The Court concludes from all of the above considerations that the conditions required by
its Statute for it to indicate provisional measures are met. It is therefore necessary, pending its final
decision, for the Court to indicate certain measures in order to protect the right of Ukraine that the
Court has found to be plausible (see paragraph 60 above).

       79. The Court recalls that it has the power, under its Statute, when a request for provisional
measures has been made, to indicate measures that are, in whole or in part, other than those requested.
Article 75, paragraph 2, of the Rules of Court specifically refers to this power of the Court. The Court
has already exercised this power on several occasions in the past (see, for example, Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v.
Myanmar), Provisional Measures, Order of 23 January 2020, I.C.J. Reports 2020, p. 28, para. 77).

      80. In the present case, having considered the terms of the provisional measures requested by
Ukraine and the circumstances of the case, the Court finds that the measures to be indicated need not
be identical to those requested.

       81. The Court considers that, with regard to the situation described above, the Russian
Federation must, pending the final decision in the case, suspend the military operations that it
commenced on 24 February 2022 in the territory of Ukraine. In addition, recalling the statement of
the Permanent Representative of the Russian Federation to the United Nations that the “Donetsk
People’s Republic” and the “Lugansk People’s Republic” had turned to the Russian Federation with
a request to grant military support, the Court considers that the Russian Federation must also ensure
that any military 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 or direction, take no steps in
furtherance of these military operations.

       82. The Court recalls that Ukraine also requested it to indicate measures aimed at ensuring the
non-aggravation of the dispute with the Russian Federation. When it indicates provisional measures
for the purpose of preserving specific rights, the Court may also indicate provisional measures with
a view to preventing the aggravation or extension of the dispute if it considers that the circumstances
so require (see, for example, Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Armenia v. Azerbaijan), Provisional Measures, Order of
7 December 2021, para. 94; Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Azerbaijan v. Armenia), Provisional Measures, Order of
7 December 2021, para. 72). In the present case, having considered all the circumstances, in addition
to the specific measures it has decided to order, the Court deems it necessary to indicate an additional
measure directed to both Parties and aimed at ensuring the non-aggravation of the dispute.

                                                   - 18 -

       83. The Court further recalls that Ukraine requested it to indicate a provisional measure
directing the Russian Federation to “provide a report to the Court on measures taken to implement
the Court’s Order on Provisional Measures one week after such Order and then on a regular basis to
be fixed by the Court”. In the circumstances of the present case, however, the Court declines to
indicate this measure.

                                                     *

                                               *            *

       84. The Court reaffirms that its “orders on provisional measures under Article 41 [of the
Statute] have binding effect” (LaGrand (Germany v. United States of America), Judgment,
I.C.J. Reports 2001, p. 506, para. 109) and thus create international legal obligations for any party to
whom the provisional measures are addressed.

                                                     *

                                               *            *

      85. The Court further reaffirms that 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 to the merits themselves. It leaves
unaffected the right of the Governments of Ukraine and of the Russian Federation to submit
arguments in respect of those questions.

                                                     *

                                               *            *

      86. For these reasons,

      THE COURT,

      Indicates the following provisional measures:

                                                - 19 -

      (1) By thirteen votes to two,

      The Russian Federation shall immediately suspend the military operations that it commenced
on 24 February 2022 in the territory of Ukraine;

      IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde,
         Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Daudet;

      AGAINST: Vice-President Gevorgian; Judge Xue;

      (2) By thirteen votes to two,

       The Russian Federation shall ensure that any military 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 or direction, take no steps in furtherance of the military operations referred to in point (1)
above;

      IN FAVOUR: President Donoghue; Judges Tomka, Abraham, Bennouna, Yusuf, Sebutinde,
         Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth; Judge ad hoc Daudet;

      AGAINST: Vice-President Gevorgian; Judge Xue;

      (3) Unanimously,

      Both Parties shall refrain from any action which might aggravate or extend the dispute before
the Court or make it more difficult to resolve.

       Done in English and in French, the English text being authoritative, at the Peace Palace,
The Hague, this sixteenth day of March, two thousand and twenty-two, in three copies, one of which
will be placed in the archives of the Court and the others transmitted to the Government of Ukraine
and the Government of the Russian Federation, respectively.

                                                            (Signed)   Joan E. DONOGHUE,
                                                                            President.

                                                            (Signed)    Philippe GAUTIER,
                                                                             Registrar.

                                            - 20 -

      Vice-President GEVORGIAN appends a declaration to the Order of the Court;
Judges BENNOUNA and XUE append declarations to the Order of the Court; Judge ROBINSON
appends a separate opinion to the Order of the Court; Judge NOLTE appends a declaration to the
Order of the Court; Judge ad hoc DAUDET appends a declaration to the Order of the Court.

                                                           (Initialled)   J.E.D.

                                                           (Initialled)   Ph.G.

                                        ___________


225

SEPARATE OPINION OF JUDGE DE CASTRO
[Translation }

I voted with the majority, and I have explained the reasons for my vote
in my separate opinion in the case of Fisheries Jurisdiction (United
Kingdom v. Iceland), and these reasons apply mutatis mutandis to the
present case. I would like however to add the following observations.

During the oral proceedings, the Government of the Federal Republic
requested the Court, in its last submission, to adjudge and declare that
Iceland is under an obligation to make compensation for the acts of
interference by Icelandic coastal patrol boats with the German fishing
vessels by the threat or use of force (hearing of 28 March 1974, p. 92). In
the German Memorial its request is clearer, namely that the Court should
declare:

“That the Republic of Iceland is, in principle, responsible for the
damage inflicted upon German fishing vessels by the illegal acts of
the Icelandic coastal patrol boats described in the preceding para-
graphs, and under an obligation to pay full compensation for all
damage which the Federal Republic of Germany and its nationals
have actually suffered thereby.” (Part V, para. 18.)

This claim by the Federal Republic raises two preliminary questions
for the Court, which should be examined separately.

1 do not see how the Court can agree to this claim by the Federal
Republic. In its judgment on a case the Court does not have to make
declarations of principle. To say that an illegal act which has caused
injury gives rise to an obligation to make reparation is a mere truism, and
there is therefore no point in saying it. But for that very reason, to say
as much would suggest that the Court has, at least prima facie, accepted
the existence of illegal acts and of damage.

A claim for reparation, if it is to be admissible before a court, must
include an offer of evidence, as to the fault of the defendant, and as to
the existence and the amount of each head of damage; the possibility
must also be considered of balancing of fault on each side, or set-off of
damages. It is after hearing evidence that the Court can satisfy itself that
the submissions as to reparation are well founded in fact and in law.

The other question to be examined concerns the Court’s jurisdiction
to entertain the claim for reparation.

I should observe first of all that I do not consider that the Court has
to settle the question of jurisdiction before stating that the claim is
inadmissible. It is open to the Court to take no action on the claim
because it is not properly made. The Court always has jurisdiction to

54
FISHERIES JURISDICTION (SEP. OP. DE CASTRO) 226

decide that a claim is inadmissible because its formulation is wholly
defective.

I think also that I should make no secret of my doubts as to the Court’s
jurisdiction to examine the question of reparation. My hesitation arises
from the fact that I do not see how it can be argued from the compromis-
sory clause that the task entrusted to the Court includes the question of
reparation. The clause was accepted unwillingly by Iceland, and it would
appear that there is nothing to justify its being interpreted extensively.
The 1961 agreement is confined to the establishment of fishing zones; the
compromissory clause relates to ‘‘the matter” of the extension. The Court
can and must give a decision on the extension. Can it do so also on
connected questions? In my view, the damage and injury relied on by
the Federal Republic derive from something other than the extension.
The unlawfulness of the activities of the Iceland coastal patrol boats
which has been asserted might be deduced from the fact that they oc-
curred either pendente lire or in disregard of the Court’s Order as to
interim measures; they would thus arise not from non-compliance with
contractual obligations (arising from the same treaty) but ex delicto.

It is not easy to interpret the compromissory clause so extensively. The
extension of fisheries jurisdiction is not the cause of the damage; the
acts of the coastal patrol boats are new facts, not foreseen at the time of
conclusion of the agreement.

The old saying that boni judicis est ampliare jurisdictionem is not
applicable to the Court’s jurisdiction (United Nations Charter, Art. 2,
para. 7). [ consider that the compromissory clause in the 1961 Exchange
of Notes should not be interpreted restrictively, but should not be
interpreted extensively either; it should be read in accordance with the
ordinary meaning io be given to the terms of the Notes in their context
and in the light of their object and purpose (Vienna Convention on the
Law of Treaties, Art. 31).

(Signed) F. DE CASTRO.

55


INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. BELGIUM)

ORDER OF 8 SEPTEMBER 2000

2000

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE À LA LICÉITÉ
DE L'EMPLOI DE LA FORCE

(YOUGOSLAVIE c. BELGIQUE)

ORDONNANCE DU 8 SEPTEMBRE 2000
Official citation:

Legality of Use of Force ( Yugoslavia v. Belgium),

Order of 8 September 2000, 1 C.J. Reports 2000, p. 149

Mode officiel de citation:

Licéité de l'emploi de la force ( Yougoslavie c. Belgique),
ordonnance du 8 septembre 2000, C.J. Recueil 2000, p. 149

ISSN 0074-4441
ISBN 92-1-070868-7

Sales number
N° de vente:

792

8 SEPTEMBER 2000

ORDER

LEGALITY OF USE OF FORCE
(YUGOSLAVIA v. BELGIUM)

LICÉITÉ DE L'EMPLOI DE LA FORCE
(YOUGOSLAVIE c. BELGIQUE)

8 SEPTEMBRE 2000

ORDONNANCE

149

COUR INTERNATIONALE DE JUSTICE

ANNÉE 2000

8 septembre 2000

AFFAIRE RELATIVE À LA LICÉITÉ
DE L'EMPLOI DE LA FORCE

(YOUGOSLAVIE c. BELGIQUE)

ORDONNANCE

Le vice-président de la Cour internationale de Justice, faisant fonction
de président en l'affaire,

Vu l’article 48 du Statut de la Cour et les articles 31 et 79 de son Règle-
ment,

Vu l'ordonnance du 30 juin 1999, par laquelle la Cour a fixé au 5 jan-
vier 2000 et au 5 juillet 2000 les dates d'expiration des délais pour le
dépôt. respectivement, d'un mémoire de la République fédérale de You-
goslavie et d'un contre-mémoire du Royaume de Belgique:

Considérant que, le 5 juillet 2000, la Belgique a déposé certaines excep-
tions préliminaires d’incompétence et d'irrecevabilité:

Considérant qu'en conséquence, en vertu des dispositions du para-
graphe 3 de l'article 79 du Règlement de la Cour, la procédure sur le fond
est suspendue et qu’il échet de fixer un délai dans lequel la Partie adverse
pourra présenter un exposé écrit contenant ses observations et conclu-
sions sur les exceptions préliminaires:

Considérant que, au cours d’une réunion que le vice-président, faisant
fonction de président en l'affaire, a tenue avec les agents des Parties le
6 septembre 2000, la Yougoslavie a indiqué qu'elle aurait besoin de neuf
mois pour la préparation de cet exposé écrit; et considérant que la Bel-
gique n'a pas fait objection à ce qu’un tel délai soit fixé, tout en souli-
gnant qu'elle attendait de la Yougoslavie que celle-ci réponde spécifique-
ment aux exceptions préliminaires soulevées par le Gouvernement belge.

4

2000
8 septembre
Rôle général
n° 105
LICÉITÉ DE L'EMPLOI DE LA FORCE (ORD. 8 IX 00) 150

Compte tenu des vues des Parties et des circonstances particulières de
l'espèce,

Fixe au 5 avril 2001 la date d'expiration du délai dans lequel la Répu-
blique fédérale de Yougoslavie pourra présenter un exposé écrit conte-

nant ses observations et conclusions sur les exceptions préliminaires sou-
levées par le Royaume de Belgique;

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 huit septembre deux mille, en trois exemplaires, dont
l’un restera déposé aux archives de la Cour et les autres seront transmis
respectivement au Gouvernement de la République fédérale de Yougo-
slavie et au Gouvernement du Royaume de Belgique.

Le vice-président,
{ Signé) Sui Jiuyong.
Le greffier,
{ Signé) Philippe COUVREUR.


1974
20 December
General List
No. 59

535

INTERNATIONAL COURT OF JUSTICE
YEAR 1974

20 December 1974

NUCLEAR TESTS CASE
(NEW ZEALAND v. FRANCE)

APPLICATION BY FIJI FOR PERMISSION TO INTERVENE

ORDER

Present: President LACHS; Judges FORSTER, GROS, BENGZON, PETREN,
ONYEAMA, DILLARD, IGNACIO-PINTO, DE CASTRO, Morozov,
JIMENEZ DE ARECHAGA, Sir Humphrey WALDOCK, NAGENDRA
SINGH, RUDA; Judge ad hoc Sir Garfield BARWICK; Registrar
AQUARONE.

The International Court of Justice,

Composed as above,
After deliberation,
Having regard to Articles 48 and 62 of the Statute of the Court,

Having regard to the application of the Government of Fiji dated
18 May 1973 for permission to intervene in these proceedings,

Having regard to the Order of the Court in this case dated 12 July 1973,
Makes the following Order:

1. Whereas by a Judgment of 20 December 1974 in this case the Court
finds that the claim of New Zealand no longer has any object and that
the Court is therefore not called upon to give a decision thereon,

2. Whereas in consequence there will no longer be any proceedings
before the Court to which the Application for permission to intervene
could relate,

4
536 NUCLEAR TESTS (ORDER 20 XII 74)

THE COURT,
Unanimously,

Finds that the Application of the Government of Fiji for permission to
intervene in the proceedings instituted by New Zealand against France
lapses, and that no further action thereon is called for on the part of the
Court.

Done in English and in French, the English text being authoritative,
at the Peace Palace, The Hague, this twentieth day of December, one
thousand nine hundred and seventy-four, in four copies, one of which will
be deposited in the archives of the Court, and the others transmitted to
the Government of Fiji, the Government of New Zealand, and the French
Government, respectively.

(Signed) Manfred Lacus,
President.

(Signed) $S. AQUARONE,
Registrar.

Judge Gros makes the following declaration:

Je vote la présente ordonnance pour des motifs différents de ceux
qu’elle indique. Le document présenté par le Gouvernement fidjien le
18 mai 1973 ne pouvait à aucun titre être considéré comme une demande
d’intervention au sens de l’article 62 du Statut et cette demande aurait dû
être rejetée dès l’origine.

Judge ONYEAMA makes the following declaration:

I have voted in favour of the Order, although, in my view, the reason
given for it, namely that the claim of the applicant State no longer has
any object and in consequence there will no longer be any proceedings
before the Court in which intervention would be possible, carries an
implication with which I am unable to agree. The implication is that if
the claim had had an object and the Court had been called upon to give a
decision thereon, there would have been a possibility of intervention in
this case.

Fiji was not, at any time material to these proceedings, a party to the
General Act of 1928 nor to the optional clause of the Statute of the Court
on which the applicant State sought to base the Court’s jurisdiction, nor

5
537 NUCLEAR TESTS (ORDER 20 XII 74)

has she invoked any basis of jurisdiction vis-à-vis France in her request to
intervene.

The Court should have decided upon this request itself as required by
Article 62 of the Statute of the Court and should, in my view, have rejected
it on the ground that the condition of reciprocity of an obligation to accept
the Court’s jurisdiction was wholly absent between Fiji and France.

Judges DirLARD and Sir Humphrey WaLpock make the following
joint declaration:

The Order states that, the Court having found that the claim of New
Zealand no longer has any object, the Court is not called upon to give a
decision thereon and consequently there will no longer be any proceedings
to which intervention can relate. The Application of the Government of
Fiji has, according to the Order, therefore lapsed.

The conclusion flows logically from the premise. As Members of the
Court, bound by its decision in the Nuclear Tests case, we are therefore
impelled to vote in favour of the Order. It is clearly not possible for the
Government of Fiji to intervene in proceedings, when, by the Judgment of
the Court, no proceedings exist.

Having said this we feel it incumbent on us to state that we do not agree
with the premise which furnishes the ground on which the Court’s con-
clusion rests. As indicated in detail in the dissenting opinion of ourselves
and some of our colleagues, we do not agree that the Court should have
decided that no further action is called for on the claim of New Zealand
against France.

If, in the case of New Zealand v. France, the views of the minority had
prevailed, the issue of.Fiji’s intervention would have required examination
in order to determine whether or not there existed a sufficient jurisdic-
tional link between Fiji and France to justify the former’s intervention
under Article 62 of the Court’s Statute. Furthermore, in our view an
opportunity should have been given to Fiji to be heard on the issue before
this determination was made.

It follows from what we have said above that, while we feel impelled to
vote for the Order of the Court, our reasons for doing so differ in certain
respects from those advanced by the Court.

Judge JIMENEZ DE ARECHAGA makes the following declaration:

I have concurred in voting for the dismissal of Fiji’s application to
intervene under Article 62 of the Statute for a reason other than that on

6
538 NUCLEAR TESTS (ORDER 20 XII 74)

which the Order is based: because Fiji, which is not a party to the 1928
Act and to the optional clause system, has failed to invoke in its applica-
tion any title of jurisdiction in relation to France.

In my view, in order to be entitled to intervene under Article 62 of the
Statute for the purpose of asserting a right as against the respondent a
State must be in a position in which it could itself bring the respondent
before the Court.

When Article 62 of the Statute was drafted, its authors were proceeding
on the assumption that the intervening State would have its own title of
jurisdiction in relation to the respondent, since the draft Statute then
provided for general compulsory jurisdiction. When that system was
replaced by the optional clause, Article 62 remained untouched, but it
must be interpreted and applied as still subject to that condition. Other-
wise, unreasonable consequences would result, in conflict with basic
principles such as those of the equality of parties before the Court and
the strict reciprocity of rights and obligations among the States which
accept its jurisdiction. A State which cannot be brought before the Court
as a respondent by another State can neither become an applicant vis-a-
vis that State nor an intervener against that same State, entitled to make
independent submissions in support of an interest of its own. In my view
the provision in Article 69, paragraph 2, of the Rules of Court requiring
“a statement of law and of fact justifying intervention” must in circum-
stances like those in the present case be interpreted as including the
requirement of establishing an independent jurisdictional link between
intervener and respondent.

Judge ad hoc Sir Garfield BARWICK makes the following declaration:

J have voted in favour of the Order made in respect of the Application
by Fiji to intervene in these proceedings not because of the Order made by
the Court in the cases Australia v. France and New Zealand v. France
but solely for the reasons expressed by Judge Jiménez de Aréchaga and
Judge Onyeama in their declarations concerning the Fiji Order, with
which I entirely agree.

(Initialled) M.L.
(Initialled) S.A.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

LICEITE DE L’UTILISATION
DES ARMES NUCLEAIRES PAR UN ETAT
DANS UN CONFLIT ARME

(REQUETE POUR AVIS CONSULTATIF)

ORDONNANCE DU 13 SEPTEMBRE 1993

1993

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

LEGALITY OF THE USE BY A STATE
OF NUCLEAR WEAPONS
IN ARMED CONFLICT

(REQUEST FOR ADVISORY OPINION)

ORDER OF 13 SEPTEMBER 1993
Mode officiel de citation:

Licéité de l’utilisation des armes nucléaires par un Etat
dans un conflit armé, ordonnance du 13 septembre 1993,
C.LJ. Recueil 1993, p. 467

Official citation :
Legality of the Use by a State of Nuclear Weapons

in Armed Conflict, Order of 13 September 1993,
LCS. Reports 1993, p. 467

N° de vente :
ISSN 0074-4441 Sales number 64 1
ISBN 92-1-070700-1

467

INTERNATIONAL COURT OF JUSTICE

YEAR 1993 1993
13 September

General List

13 September 1993 No. 93

LEGALITY OF THE USE BY A STATE
OF NUCLEAR WEAPONS
IN ARMED CONFLICT

(REQUEST FOR ADVISORY OPINION)

ORDER

Present: President Sir Robert JENNINGS; Vice-President Opa; Judges
SCHWEBEL, NI, EVENSEN, TARASSOV, GUILLAUME, SHAHA-
BUDDEEN, AGUILAR MAWDSLEY, 'WEERAMANTRY, AJIBOLA,
HERCZEGH; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above,
After deliberation,
Having regard to Article 66, paragraph 2, of the Statute of the Court,

Whereas on 14 May 1993 the Forty-sixth World Health Assembly of the
World Health Organization adopted resolution WHA46.40 by which the
Assembly decided,

“in accordance with Article 96 (2) of the Charter of the United
Nations, Article 76 of the Constitution of the World Health Organi-
zation and Article X of the Agreement between the United Nations
and the World Health Organization approved by the General Assem-
bly of the United Nations on 15 November 1947 in its resolu-
tion 124 (ID), to request the International Court of Justice to give an
advisory opinion on the following question:
NUCLEAR WEAPONS (ORDER 13 IX 93) 468

‘In view of the health and environmental effects, would the use
of nuclear weapons by a State in war or other armed conflict be a
breach of its obligations under international law including the
WHO Constitution ? ”;

Whereas certified true copies of the English and French texts of resolu-
tion WHA46.40 were transmitted to the Court by a letter from the
Director-General of the World Health Organization dated 27 August 1993,
and received in the Registry on 3 September 1993,

Fixes 10 June 1994 as the time-limit within which written statements
may be submitted to the Court by the World Health Organization and by
those of its member States who are entitled to appear before the Court, in
accordance with Article 66, paragraph 2, of the Statute of the Court; and

Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative,
at the Peace Palace, The Hague, this thirteenth day of September, one
thousand nine hundred and ninety-three.

(Signed) R. Y. JENNINGS,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.


COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A LA LICEITE
DE L'EMPLOI DE LA FORCE

(YOUGOSLAVIE c. PORTUGAL)

ORDONNANCE DU 21 FEVRIER 2001

2001

INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA y. PORTUGAL)

ORDER OF 21 FEBRUARY 2001
Mode officiel de citation:

Licéité de l'emploi de la force (Yougoslavie c. Portugal),
ordonnance du 21 février 2001, C.J. Recueil 2001, p. 31

Official citation:

Legality of Use of Force (Yugoslavia v. Portugal),
Order of 21 February 2001, I C.J. Reports 2001, p. 31

N° de vente:
ISSN 0074-4441 Sales number 8 1 5

ISBN 92-1-070916-0

31

INTERNATIONAL COURT OF JUSTICE

YEAR 2001 2001
21 February
General List
21 February 2001 No. 111

CASE CONCERNING
LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. PORTUGAL)

ORDER

Present: Vice-President Sui, Acting President; President GUILLAUME;
Judges ODA, BEDIAOUI, RANJEVA, HERCZEGH, FLEISCHHAUER,
KOROMA, VERESHCHETIN,  HIGGINS, PARRA-ARANGUREN,
KoouMANS, REZEK, AL-KHASAWNEH, BUERGENTHAL; Registrar
COUVREUR.

The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Article 48 of the Statute of the Court and to
Articles 44 and 79 of the Rules of Court,

Having regard to the Order of 30 June 1999, whereby the Court fixed
5 January 2000 and 5 July 2000 as the time-limits for the filing, respec-
tively, of a Memorial of the Federal Republic of Yugoslavia and a
Counter-Memorial of the Portuguese Republic,

Having regard to the preliminary objections to jurisdiction and admis-
sibility filed by Portugal on 5 July 2000,

Having regard to the Order of 8 September 2000, whereby the Vice-
President of the Court, Acting President, fixed 5 April 2001 as the time-
limit within which the Federal Republic of Yugoslavia might present a

4
LEGALITY OF USE OF FORCE (ORDER 21 II Of) 32

written statement of its observations and submissions on the preliminary
objections made by the Portuguese Republic;

Whereas, by letter dated 18 January 2001, received in the Registry on
19 January 2001 by facsimile, the Minister for Foreign Affairs of the
Federal Republic of Yugoslavia referred inter alia to recent diplomatic
initiatives and requested the Court, for reasons stated in that letter, “to
grant a stay of the proceedings or . . . to extend the time limit for the
submission of observations of Yugoslavia, for a period of twelve months” ;
and whereas, on receipt of that letter, the Registrar transmitted a copy
thereof to the Agent of the Portuguese Republic;

Whereas, by letter dated 1 February 2001, received in the Registry on
6 February 2001, the Agent of the Portuguese Republic informed the
Court that her Government was not opposed to a stay of proceedings or,
if a stay was not possible, to an extension of the time-limit for the filing
of the observations and submissions of Yugoslavia on the preliminary
objections of Portugal,

Taking account of the agreement of the Parties and of the circum-
stances of the case,

Extends to 5 April 2002 the time-limit within which the Federal Repub-
lic of Yugoslavia may present a written statement of its observations
and submissions on the preliminary objections made by the Portuguese
Republic; and

Reserves the subsequent procedure for further decision.

Done in French and in English, the French text being authoritative, at
the Peace Palace, The Hague, this twenty-first day of February, two
thousand and one, in three copies, one of which will be placed in the
archives of the Court and the others transmitted to the Government of
the Federal Republic of Yugoslavia and the Government of the Portu-
guese Republic, respectively.

(Signed) Sui Jiuyong,
Vice-President.

(Signed) Philippe COUVREUR,
Registrar.