402

DISSENTING OPINION OF JUDGE KRECA

TABLE OF CONTENTS

I. COMPOSITION OF THE COURT IN THIS PARTICULAR CASE
TI. HUMANITARIAN CONCERN IN THIS PARTICULAR CASE
IT. JURISDICTION OF THE COURT RATIONE MATERIAE
IV. OTHER RELEVANT ISSUES

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Paragraphs
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5-7

8-10
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403 LEGALITY OF USE OF FORCE (DISS. OP. KRECA)
I. COMPOSITION OF THE COURT IN THIS PARTICULAR CASE

1. In the context of the conceptual difference between the interna-
tional magistrature and the internal judicial system within a State, the
institution of judge ad hoc has two basic functions:

“{a) to equalize the situation when the Bench already includes a
Member of the Court having the nationality of one of the parties;
and (b) to create a nominal equality between two litigating States
when there is no Member of the Court having the nationality of
either party” (S. Rosenne, The Law and Practice of the International
Court, 1920-1996, Vol. UI, pp. 1124-1125).

In this particular case room is open for posing the question as to
whether either of these two basic functions of the institution of judge ad
hoc has been fulfilled at all.

It is possible to draw the line between two things.

The first is associated with equalization of the Parties in the part con-
cerning the relations between the Applicant and the respondent States
which have a national judge on the Bench. Jn concreto, of special interest
is the specific position of the respondent States. They appear in a dual
capacity in these proceedings:

primo, they appear individually in the proceedings considering that
each one of them is in dispute with the Federal Republic of Yugoslavia:
and,

secondo, they are at the same time member States of NATO under
whose institutional umbrella they have undertaken the armed attack on
the Federal Republic of Yugoslavia. Within the framework of NATO,
these respondent States are acting in corpore, as integral parts of an
organizational whole. The corpus of wills of NATO member States, when
the undertaking of military operations is in question, is constituted into a
collective will which is, formally, the will of NATO,

2. The question may be raised whether the respondent States can
qualify as parties in the same interest.

In its Order of 20 July 1931 in the case concerning the Customs Régime
between Germany and Austria, the Permanent Court of International Jus-
tice established that:

“all governments which, in the proceedings before the Court, come
to the same conclusion, must be held to be in the same interest for
the purposes of the present case” (P.C.I.J., Series A/B, No. 41,
p. 88).

The question of qualification of the “same interest”, in the practice of
the Court, has almost uniformly been based on a formal criterion, the
criterion of “the same conclusion” to which the parties have come in the
proceedings before the Court.

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404 LEGALITY OF USE OF FORCE (DISS. OP. KRECA)

In the present case, the question of “the same conclusion” as the rele-
vant criterion for the existence of “the same interest” of the respondent
States is, in my opinion, unquestionable. The same conclusion was, in a
way, inevitable in the present case in view of the identical Application
which the Federal Republic of Yugoslavia has submitted against ten
NATO member States, and was formally consecrated by the outcome of
the proceedings before the Court held on 10, 11 and 12 May 1999, in
which all the respondent States came to the identical conclusion resting
on the foundation of practically identical argumentation which differed
only in the fashion and style of presentation.

Hence, the inevitable conclusion follows, it appears to me, that all the
respondent States are in concreto parties in the same interest.

3. What are the implications of this fact for the composition of the
Court in the present case? Article 31, paragraph 2, of the Statute says:
“If the Court includes upon the Bench a judge of the nationality of one of
the parties, any other party may choose a person to sit as judge.”

The Statute, accordingly, refers to the right of “any other party”,
namely, a party other than the party which has a judge of its nationality,
in the singular. But, it would be erroneous to draw the conclusion from
the above that “any other party”, other than the party which has a judge
of its nationality, cannot, under certain circumstances, choose several
judges ad hoc. Such an interpretation would clearly be in sharp contra-
diction with ratio legis of the institution of judge ad hoc, which, in this
particular case, consists of the function “to equalize the situation when
the Bench already includes a Member of the Court having the nationality
of one of the parties” (S. Rosenne, The Law and Practice of the Interna-
tional Court, 1920-1996, Vol. IN, pp. 1124-1125). The singular used in
Article 31, paragraph 2, of the Statute with reference to the institution of
judges ad hoc is, consequently, but individualization of the general, inher-
ent right to equalization in the composition of the Bench in the relations
between litigating parties, one of which has a judge of its nationality on
the Bench, while the other has not. The practical meaning of this principle
applied in casum would imply the right of the Applicant to choose as
many judges ad hoc to sit on the Bench as is necessary to equalize the
position of the Applicant and that of those respondent States which have
judges of their nationality on the Bench and which share the same interest.
In concreto, the inherent right to equalization in the composition of the
Bench, as an expression of fundamental rule of equality of parties, means
that the Federal Republic of Yugoslavia should have the right to choose
five judges ad hoc, since even five out of ten respondent States (the United
States of America, the United Kingdom, France, Germany and the Neth-
erlands) have their national judges sitting on the Bench.

Regarding the notion of equalization which concerns the relation
between the party entitled to choose its judge ad hoc and the parties
which have their national judges on the Bench, the fact is that the Federal
Republic of Yugoslavia, as can be seen from the Order, did not raise any
objections to the circumstance that as many as five respondent States

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405 LEGALITY OF USE OF FORCE (DISS. OP. KRECA)

have judges of their nationality on the Bench. However, this circum-
stance surely cannot be looked upon as something making the question
irrelevant, or, even as the tacit consent of the Federal Republic of Yugo-
slavia to such an outright departure from the letter and spirit of
Article 31, paragraph 2, of the Statute.

The Court has, namely, the obligation to take account ex officio of the
question of such a fundamental importance, which directly derives from,
and vice versa, may directly and substantially affect, the equality of the
parties. The Court is the guardian of legality for the parties to the case,
for which presumptio juris et de jure alone is valid — to know the law
(jura novit curia). As pointed out by Judges Bedjaoui, Guillaume and
Ranjeva in their joint declaration in the Lockerbie case: “that is for the
Court — not the parties — to take the necessary decision” (Questions of
Interpretation and Application of the 1971 Montreal Convention arising
from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United
Kingdom), I.C.J. Reports 1998, p. 36, para. 11).

A contrario, the Court would risk, in a matter which is ratio legis
proper of the Court’s existence, bringing itself into the position of a pas-
sive observer, who only takes cognizance of the arguments of the parties
and, then, proceeds to the passing of a decision.

4. The other function is associated with equalization in the part which
is concerned with the relations between the Applicant and those respon-
dent States which have no national judges on the Bench.

The respondent States having no judge of their nationality on the
Bench have chosen, in the usual procedure, their judges ad hoc (Belgium,
Canada, Italy and Spain). Only Portugal has not designated its judge ad
hoc. The Applicant successively raised objections to the appointment of
the respondent States’ judges ad hoc invoking Article 31, paragraph 5, of
the Statute of the Court. The responses of the Court with respect to this
question invariably contained the standard phrase “that the Court . . .
found that the choice of a judge ad hoc by the Respondent is justified in
the present phase of the case”.

Needless to say, the above formulation is laconic and does not offer
sufficient ground for the analysis of the Court’s legal reasoning. The only
element which is subject to the possibility of teleological interpretation
is the qualification that the choice of a judge ad hoc is “justified in the
present phase of the case”. A contrario, it is, consequently, possible that
such an appointment of a judge ad hoc would “not be justified” in some
other phases of the case. The qualification referred to above could be
interpreted as the Court’s reserve with respect to the choice of judges ad
hoc by the respondent States, a reserve which could be justifiable on
account of the impossibility for the Court to perceive the nature of their
interest — whether it is the “same” or “separate” — before the parties set
out their positions on the case.

The meanings of equalization as a ratio legis institution of judges ad
hoc, in the case concerning the Applicant and respondent States which

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are parties in the same interest, and which do not have a judge ad hoc of
their nationality on the Bench, have been dealt with in the practice of the
Court, in a clear and unambiguous manner.

In the South West Africa case (1961) it was established that, if neither
of the parties in the same interest has a judge of its nationality among the
Members of the Court, those parties, acting in concert, will be entitled to
appoint a single judge ad hoc (South West Africa, 1 C.J. Reports 1961,
p. 3).

If, on the other hand, among the Members of the Court there is a judge
having the nationality of even one of those parties, then no judge ad hoc
will be appointed (Territorial Jurisdiction of the International Commis-
sion of the River Oder, P.C.LJ., Series €, No. 17-H, p. 8; Customs
Régime between Germany and Austria, 1931, P.C.LJ., Series AIB,
No. 41, p. 88).

This perfectly coherent jurisprudence of the Court applied to this par-
ticular case means that none of the respondent States were entitled to
appoint a judge ad hoc.

Consequently, it may be said that in the present case neither of the two
basic functions of the institution of judge ad hoc has been applied in the
composition of the Court in a satisfactory way. In my opinion, it is a
question of the utmost specific weight in view of the fact that, obviously,
its meaning is not restricted to the procedure, but that it may have a far-
reaching concrete meaning.

IT. HUMANITARIAN CONCERN IN THIS PARTICULAR CASE

5. Humanitarian concern, as a basis for the indication of provisional
measures, has assumed primary importance in the more recent practice of
the Court.

Humanitarian concern has been applied on two parallel tracks in the
Court’s practice:

(a) In respect of the individual

In this regard the cases concerning LaGrand (Germany v. United
States of America) and the Vienna Convention on Consular Relations
(Paraguay v. United States of America) are characteristic.

In both cases the Court evinced the highest degree of sensibility for the
humanitarian aspect of the matter, which probably found its full expres-
sion in the part of the Application submitted by Germany on 2 March
1999:

“The importance and sanctity of an individual human life are well
established in international law. As recognized by Article 6 of the
International Covenant on Civil and Political Rights, every human
being has the inherent right to life and this right shall be protected

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407 LEGALITY OF USE OF FORCE (DISS. OP. KRECA)

by law.” (LaGrand (Germany v. United States of America), Provi-
sional Measures, Order of 3 March 1999, I. C.J. Reports 1999, p. 12,
para, 8).

The following day, the Court already unanimously indicated provisional
measures because it found that in question was “a matter of the greatest
urgency” (ibid., p. 15, para. 26), which makes it incumbent upon the Court
to activate the mechanism of provisional measures in accordance with
Article 41 of the Statute of the Court and Article 75, paragraph 1, of the
Rules of Court in order: “to ensure that Walter LaGrand is not executed
pending the final decision in these proceedings” (ibid., p. 16, para. 29).

Almost identical provisional measures were indicated by the Court in
the dispute between Paraguay and the United States of America which
had arisen on the basis of the Application submitted by Paraguay on
3 April 1998. On the same day, Paraguay also submitted an “urgent
request for the indication of provisional measures in order to protect its
rights” (Vienna Convention on Consular Relations (Paraguay v. United
States of America}, Order of 9 April 1998, LC.J. Reports 1998, p. 251,
para. 6). As early as 9 April 1998 the Court unanimously indicated pro-
visional measures so as to: “ensure that Angel Francisco Breard is not
executed pending the final decision in these proceedings” (ibid., p. 258,
para. 41).

It is evident that humanitarian concern represented an aspect which
brought about unanimity in the Court’s deliberations. This is clearly
shown not only by the letter and spirit of both Orders in the above-
mentioned cases, but also by the respective declarations and the separate
opinion appended to those Orders. In the process, humanitarian consid-
erations seem to have been sufficiently forceful to put aside obstacles
standing in the way of the indication of provisional measures. In this
respect, the reasoning of the Court’s senior judge, Judge Oda, and that of
its President, Judge Schwebel, are indicative.

In paragraph 7 of his declaration appended to the Order of 3 March
1999 in the case concerning LaGrand (Germany v. United States of
America), Judge Oda convincingly put forward a series of reasons of a
conceptual nature which explained why he “formed the view that, given
the fundamental nature of provisional measures, those measures should
not have been indicated upon Germany’s request”. But, Judge Oda goes
on to “reiterate and emphasize” that he “voted in favour of the Order
solely for humanitarian reasons” (C.J. Reports 1999, p. 20).

President Schwebel, in his separate opinion, has not explicitly stated
humanitarian considerations as the reason that guided him in voting for
the Order; however, it is reasonable to assume that those were the only
considerations which prevailed in this particular case in view of his
“profound reservations about the procedures followed both by the
Applicant and the Court” (LaGrand (Germany v. United States of
America), Provisional Measures, Order of 3 March 1999, I C.J. Reports
1999, p. 22).

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As far as the Applicant is concerned:

“Germany could have brought its Application years ago, months
ago, weeks ago or days ago. Had it done so, the Court could have
proceeded as it has proceeded since 1922 and held hearings on the
request for provisional measures. But Germany waited until the eve
of execution and then brought its Application and request for pro-
visional measures, at the same time arguing that no time remained to
hear the United States and that the Court should act proprio motu.”
(LC.J. Reports 1999, p. 22.)

The Court, for its part, indicated provisional measures, as President
Schwebel put it, “on the basis only of Germany’s Application”.

(b) In respect of a group of individuals or the population as a constitu-
tive element of the State:

The protection of the citizens emerged as an issue in the case concern-
ing Military and Paramilitary Activities in and against Nicaragua ( Nica-
ragua v. United States of America):

“In its submission, Nicaragua emphasized the death and harm
that the alleged acts had caused to Nicaraguans and asked the Court
to support, by provisional measures, ‘the rights of Nicaraguan citi-
zens to life, liberty and security’.” (R. Higgins, “Interim Measures
for the Protection of Human Rights”, in Politics, Values and Func-
tions, International Law in the 21st Century, 1997, Charney, Anton,

O'Connell, eds., p. 96.)

In the Frontier Dispute (Burkina FasolRepublic of Mali) case, the
Court found the source for provisional measures in:

“incidents . .. which not merely are likely to extend or aggravate the
dispute but comprise a resort to force which is irreconcilable with
the principle of the peaceful settlement of international disputes”
(Frontier Dispute, Provisional Measures, Order of 10 January 1986,
[LC.J. Reports 1986, p. 9, para. 19).

Humanitarian concern in this particular case was motivated by the risk
of irreparable damage:

“the facts that have given rise to the requests of both Parties for the
indication of provisional measures expose the persons and property
in the disputed area, as well as the interests of both States within
that area, to serious risk of irreparable damage” (ibid., p. 10,
para. 21).

It can be said that in the cases referred to above, in particular those in

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which individuals were directly affected, the Court formed a high stand-
ard of humanitarian concern in the proceedings for the indication of
interim measures, a standard which commanded sufficient inherent
strength to brush aside also some relevant, both procedural and material,
rules governing the institution of provisional measures. Thus, humanitar-
ian considerations, independently from the norms of international law
regulating human rights and liberties, have, in a way, gained autonomous
legal significance; they have transcended the moral and philanthropic
sphere, and entered the sphere of law.

6. In the case at hand, it seems that “humanitarian concern” has lost
the acquired autonomous legal position. This fact needs to be stressed in
view of the special circumstances of this case.

Unlike the cases referred to previously, “humanitarian concern” has as
its object the fate of an entire nation, in the literal sense. Such a conclu-
sion may be inferred from at least two elements:

— primo, the Federal Republic of Yugoslavia and its national and eth-
nic groups have been subjected for more than two months now to con-
tinued attacks of a very strong, highly organized air armada of the most
powerful States of the world. The aim of the attack is horrifying, judging
by the words of the Commander-in-Chief, General Wesley Clark, and he
ought to be believed:

“We’re going to systematically and progressively attack, disrupt,
degrade, devastate, and ultimately, unless President Milosevic com-
plies with the demands of the international community, we're going
to completely destroy his forces and their facilities and support.”
(BBC News, http:/news.bbc.co.uk/english/static. NATOgallery/air
default.stm/14 May 1999.)

“Support” is interpreted, in broad terms, extensively; to the point
which raises the question of the true object of the air attacks. In an
article entitled “Belgrade People Must Suffer” Michael Gordon quotes
the words of General Short that he “hopes the distress of the public will,
must undermine support for the authorities in Belgrade” (International
Herald Tribune, 16 May 1999, p. 6) and he continued:

“T think no power to your refrigerator, no gas to your stove, you
can’t get to work because bridge is down — the bridge on which you
held your rock concerts and you all stood with targets on your

heads. That needs to disappear at three o’clock in the morning.”
(Ibid)

That these are not empty words is testified to by destroyed bridges, power
plants without which there is no electricity, water supply and production

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of foodstuffs essential for life; destroyed roads and residential blocks and
family homes; hospitals without electricity and water and, above all,
human beings who are exposed to bombing raids and who, as is rightly
stressed in the Application in the LaGrand (Germany v. United States of
America) case, have the “inherent right to life” (International Covenant
on Civil and Political Rights, Art. 6), whose importance and sanctity are
well established in international law. In the inferno of violence, they are
but “collateral damage”.

—— secundo, the arsenal used in the attacks on Yugoslavia contains also
weapons whose effects have no limitations either in space or in time. In
the oral proceedings before the Court, the Agent of the United States
explicitly stressed that depleted uranium is in standard use of the United
States Army (CR 99/24, p. 21).

The assessment of the effects of depleted uranium should be left to
science. The report by Marvin Resnikoff of Radioactive Management
Associates on NMI elaborated upon these effects:

“Once inhaled, fine uranium particles can lodge in the lung alveo-
lar and reside there for the remainder of one’s life. The dose due to
uranium inhalation is cumulative. A percentage of inhaled particu-
lates may be coughed up, then swallowed and ingested. Smoking is
an additional factor that needs to be taken into account. Since
smoking destroys the cilia, particles caught in a smoker’s bronchial
passages cannot be expelled. Gofman estimates that smoking
increases the radiation risk by a factor of 10. Uranium emits an
alpha particle, similar to a helium nucleus, with two electrons
removed. Though this type of radiation is not very penetrating, it
causes tremendous tissue damage when internalized. When inhaled,
uranium increases the probability of lung cancer. When ingested,
uranium concentrates in the bone. Within the bone, it increases the
probability of bone cancer, or, in the bone marrow, leukemia. Ura-
nium also resides in soft tissue, including the gonads, increasing the
probability of genetic health effects, including birth defects and
spontaneous abortions. The relationship between uranium ingested
and the resultant radiation doses to the bone marrow and specific
organs .. . are listed in numerous references.

The health effects are also age-specific. For the same dose, chil-
dren have a greater likelihood than adults of developing cancer.”
(Uranium Battlefields Home & Abroad: Depleted Uranium Use by
the U.S. Department of Defense, Rural Alliance for Military
Accountability et al, March 1993, pp. 47-48.)

A scientific analysis of the concrete effects of armed operations against

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41] LEGALITY OF USE OF FORCE (DISS. OP. KRECA)

Yugoslavia has been presented by Umweltbundesamt (UBA). The essen-
tials of the expertise are as follows':

[Translation by the Registry]

“The longer the war in Yugoslavia lasts, the greater the risk of
long-term damage to the environment. Such damage threatens to
extend beyond national frontiers, and it may no longer be possible
fully to make it good. The Federal Environmental Agency [Umwelt-
bundesamt (UBA)] comes to this conclusion in an internal paper
examining the ecological consequences of the war in Yugoslavia, pre-
pared for the meeting of European Environment Ministers at the
beginning of May in Weimar. Catastrophes ‘like Seveso and Sandoz’
are, in the opinion of the Agency, ‘a perfectly probable damage
scenario’.

1 “Je linger der Krieg in Jugoslawien dauert, desto grésser wird die Gefahr von lang-
fristigen Schädigungen der Umwelt. Diese drohen sich über die Landesgrenzen
hinaus auszubreiten und kônnen méglicherweise nicht mehr vollstandig beseitigt wer-
den. Zu dieser Einschätzung kommt das Umweltbundesamt (UBA) in einem internen
Papier, das sich mit den 6kologischen Auswirkungen des Krieges in Jugoslawien
befasst und für die Vorbereitung des Treffens europäischer Umweltminister Anfang
Mai in Weimar erstellt wurde. Katastrophen ‘wie Seveso und Sandoz’ sind nach
Ansicht des Amtes ‘ein durchaus wahrscheinliches Schadensszenario’.

Umweltgifte, die nach Zerstérungen von Industrieanlagen austreten, kônnten sich
weiter ausbreiten. ‘Bei Sicherstellung sofortigen Handelns, das unter Kriegsbedingun-
gen aber unmôglich ist, bleibt die Wirkung dieser Umweltschädigungen lokal
begrenzt. Langere Verz6gerungen führen zu einem übertritt der Schadstoffe in die
Schutzgüter Boden, Grund- und Oberflachenwasser, erhôhen das Gefahrdungspoten-
tial für den Menschen und den Sanierungsaufwand betrachtlich.’

Diese Folgen miissen nicht auf Jugoslawien beschrankt sein. Schadstoffe aus
Grossbränden kônnten grenzüberschreitend verteilt werden. Weiter heisst es in dem
Papier: ‘Die Einleitung der Gefahrstoffe in Oberflachenwasser kann zur weiträumi-
gen Schädigung der Okosysteme führen. Die Deposition von Gefahrstoffen in Boden
kann je nach Eigenschaft der Stoffe und Boden zu langanhaltenden Versuchungen
mit weitgehenden Nutzungseinschrankungen fihren.’

Die Gefahr einer ‘tiefgreifenden Zerst6rung wesentlicher Bestandteile von Trink-
wasserversorgungssystemen’ sei fiir mittlere und grosse Stadte sowie Ballungsgebiete
am grôssten. Schon geringe Mengen von Substanzen der petrochemischen Industrie
kônnten ‘grosse Grundwasservorrate unbrauchbar machen’.

Wie gefahrlich die freigesetzten Stoffe insgesamt sind, lasst sich nach Ansicht der
UBA-Experten nur schwer abschatzen, ‘weil durch die Zerstôrung ganzer Industrie-
komplexe Mischkontaminationen verschiedenster Schadstoffe gebildet werden’, die
noch wenig erforscht seien. Noch komplizierter sei die Beurteilung von Umwelt-
schaden durch Brande und Explosionen. ‘Hier treten bezogen auf Schadstoffinventar
und Ausbreitung weit weniger kalkulierbare, zum Teil grossflachige Umweltschadi-
gungen ein.’

Die Verbrennungsprodukte seien ‘zum Teil hoch toxisch und kanzerogen’. Je nach
klimatischen Bedingungen kônne es ‘zu einer grossflachigen Verteilung dieser Stoffe’
kommen, ‘die eine vollständige Beseitigung nahezu unméglich macht’... .

Die Wechselwirkungen der Produkte mit den eingesetzten Waffen diirften ‘vôllig
unbekannt’ sein.” (TAZ, Die Tageszeitung, Berlin, 20 May 1999.)

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LEGALITY OF USE OF FORCE (DISS. OP. KRECA)

Environmental toxins released by the destruction of industrial
plant could spread further. ‘If immediate action is taken, which is,
however, impossible under war conditions, the effect of this environ-
mental damage will remain restricted to local level. Longer delays
will result in toxic substances passing into the soil, groundwater and
surface water, and substantially increase the potential danger to
man, and the cost of cleansing operations.’

These consequences are not necessarily limited to Yugoslavia.
Harmful substances deriving from major conflagrations can be dif-
fused beyond frontiers. The paper continues: ‘Passage of harmful
substances into surface water can lead to extensive damage to eco-
systems. The deposition of hazardous substances in the soil can,
depending on the nature of those substances and of the soil, result in
long-term contamination, imposing far-reaching limitations upon
utilization.’

The danger of ‘extensive destruction of essential components of
drinking-water supply networks’ is biggest with regard to middle-
sized and large cities and conurbations. Even small amounts of sub-
stances from the petrochemical industry can render ‘extensive
groundwater reserves unusable’.

According to the Federal Environmental Agency experts, the over-
all risk posed by the substances released is difficult to assess, ‘because
the destruction of entire industrial complexes results in mixed con-
tamination by a wide variety of harmful substances’ — an area in
which there has as yet been little research. Even more problematic,
in the experts’ view, is the assessment of environmental damage
caused by fires and explosions. ‘Here, in terms of identification of
the harmful substances involved and the possibility of their diffu-
sion, environmental damage is far harder to predict, but will on
occasion be extensive.’

The substances produced by the fires are described as ‘in part
highly toxic and carcinogenic’. Depending on climatic conditions,
‘widespread diffusion of these substances’ could occur, ‘which would
render full cleansing almost impossible’.

The effects of the interaction of those substances with the
weapons employed were said to be ‘completely unknown’.” (TAZ,
Die Tageszeitung, Berlin, 20 May 1999.)

Therefore, it is my profound conviction, that the Court is, in concreto,
confronted with an uncontestable case of “extreme urgency” and “irrepa-
rable harm”, which perfectly coincides, and significantly transcends the

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substance of humanitarian standards which the Court has accepted in
previous cases.

7. I must admit that I find entirely inexplicable the Court’s reluctance
to enter into serious consideration of indicating provisional measures in a
situation such as this crying out with the need to make an attempt,
regardless of possible practical effects, to at least alleviate, if not elimi-
nate, an undeniable humanitarian catastrophe. I do not have in mind
provisional measures in concrete terms as proposed by the Federal
Republic of Yugoslavia, but provisional measures in general: be they
provisional measures proprio motu, different from those proposed by the
Federal Republic of Yugoslavia or, simply, an appeal by the President
of the Court, as was issued on so many occasions in the past, in less
difficult situations, on the basis of the spirit of Article 74, paragraph 4,
of the Rules of Court.

One, unwillingly, acquires the impression that for the Court in this par-
ticular case the indication of any provisional measures whatever has been
terra prohibita. Exempli causa, the Court, in paragraph 18 of the Order,
says that it:

“deems it necessary to emphasize that all parties appearing before it
must act in conformity with their obligations under the United
Nations Charter and other rules of international law including
humanitarian law”,

or, in paragraph 37 of the Order, that the Parties: “should take care not
to aggravate or extend the dispute”, and it is obvious that both the above
pronouncements of the Court have been designed within the model of
general, independent provisional measures.

III. JURISDICTION OF THE COURT RATIONE MATERIAE

8. I am of the opinion that in the matter in hand the Court’s position
is strongly open to criticism.
The Court finds:

“whereas the threat or use of force against a State cannot in itself
constitute an act of genocide within the meaning of Article II of the
Genocide Convention; and whereas, in the opinion of the Court, it
does not appear at the present stage of the proceedings that the
bombings which form the subject of the Yugoslav Application
‘indeed entail the element of intent, towards a group as such, required
by the provision quoted above’ (Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, LC.J. Reports 1996 (1),
p. 240, para. 26)” (Order, para. 27).

The intent is, without doubt, the subjective element of the being of the

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crime of genocide as, indeed, of any other crime. But, this question is not
and cannot, by its nature, be the object of decision-making in the inci-
dental proceedings of the indication of provisional measures.

In this respect, a reliable proof should be sought in the dispute which,
by its salient features, is essentially identical to the dispute under consid-
eration — the case concerning Application of the Convention on the Pre-
vention and Punishment of the Crime of Genocide.

In its Order on the indication of provisional measures of 8 April 1993,
in support of the assertion of the Respondent that, inter alia, “it does not
support or abet in any way the commission of crimes cited in the Appli-
cation ... and that the claims presented in the Application are without
foundation” (Application of the Convention on the Prevention and Pun-
ishment of the Crime of Genocide, Provisional Measures, Order of 8 April
1993, LC.J. Reports 1993, p. 21, para. 42), the Court stated:

“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 findings of fact or of imputability, and the right of each
Party to dispute the facts alleged against it, to challenge the attribu-
tion to it of responsibility for those facts, and to submit arguments
in respect of the merits, must remain unaffected by the Court’s deci-
sion” (ibid., p. 22, para. 44)

and

“Whereas the Court is not called upon, for the purpose of its
decision on the present request for the indication of provisional
measures, now to establish the existence of breaches of the Geno-
cide Convention” (ibid., para. 46).

The rationale of provisional measures is, consequently, limited to the
preservation of the respective rights of the parties pendente lite which are
the object of the dispute, rights which may subsequently be adjudged by
the Court. As the Court stated in the Land and Maritime Boundary
between Cameroon and Nigeria case:

“Whereas the Court, in the context of the proceedings concerning
the indication of provisional measures, 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, if appropri-
ate, in respect of the merits, must remain unaffected by the Court’s
decision” (Land and Maritime Boundary between Cameroon and
Nigeria, Provisional Measures, Order of 15 March 1996, LC.
Reports 1996 (1), p. 23, para. 43).

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9. Fundamental questions arise regarding the position of the Court
on this particular matter.

The relationship between the use of armed force and genocide can be
looked upon in two ways:

(a) is the use of force per se an act of genocide or not? and,
(b) is the use of force conducive to genocide and, if the answer is in the
affirmative, what is it then, in the legal sense?

It is incontrovertible that the use of force per se et definitione does not
constitute an act of genocide. It is a matter that needs no particular prov-
ing. However, it could not be inferred from this that the use of force is un-
related and cannot have any relationship with the commission of the crime
of genocide. Such a conclusion would be contrary to elementary logic.

Article IF of the Convention on the Prevention and Punishment of the
Crime of Genocide defines the acts of genocide as

“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;

fe) Forcibly transferring children of the group to another group.”

Any of these acts can be committed also by the use of force. The use of
force is, consequently, one of the possible means of committing acts of
genocide. And, it should be pointed out, one of the most efficient means,
due to the immanent characteristics of armed force.

Extensive use of armed force, in particular if it is used against objects
and means constituting conditions of normal life, can be conducive to
“inflicting on the group conditions of life” bringing about “its physical
destruction”.

Of course, it can be argued that such acts are in the function of degrad-
ing the military capacity of the Federal Republic of Yugoslavia. But such
an explanation can hardly be regarded as a serious argument. For, the
spiral of such a line of thinking may easily come to a point when, having
in mind that military power is after all comprised of people, even mass
killing of civilians can be claimed to constitute some sort of a precaution-
ary measure that should prevent the maintenance or, in case of mobiliza-
tion, the increase of military power of the State.

Of course, to be able to speak about genocide it is necessary that there
is an intent, namely, of “deliberately inflicting on the group conditions of
life” bringing about “its physical destruction in whole or in part”.

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In the incidental proceedings the Court cannot and should not concern
itself with the definitive qualification of the intent to impose upon the
group conditions in which the survival of the group is threatened. Having
in mind the purpose of provisional measures, it can be said that at this
stage of the proceedings it is sufficient to establish that, in the conditions
of intensive bombing, there is an objective risk of bringing about condi-
tions in which the survival of the group is threatened.

The Court took just such a position in the Order of 8 April 1993 on the
indication of provisional measures in the Application of the Convention
on the Prevention and Punishment of the Crime of Genocide case.

Paragraph 44 of that Order stated:

“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 findings of fact or of imputability, and the right of each
Party to dispute the facts alleged against it, to challenge the attribu-
tion to it of responsibility for those facts, and to submit arguments
in respect of the merits, must remain unaffected by the Court’s deci-
sion” (LC.J. Reports 1993, p. 22).

The question of “intent” is a highly complicated one. Although the
intent is a subjective matter, a psychological category, in contemporary
criminal legislation it is established also on the basis of objective circum-
stances. Inferences of intent to commit an act are widely incorporated in
legal systems. Exempli causa, permissive inferences as opposed to a man-
datory presumption in the jurisprudence of the United States of America
may be drawn even in a criminal case.

In any event, there appears to be a clear dispute between the Parties
regarding “intent” as the constitutive element of the crime of genocide.

The Applicant asserts that “intent” can be presumed and, on the other
hand, the Respondent maintains that “intent”, as an element of the crime
of genocide, should be clearly established as do/us specialis. Such a con-
frontation of views of the Parties concerned leads to a dispute related to
“the interpretation, application or fulfilment of the Convention”, includ-
ing disputes relating to the responsibility of a State for genocide or for
any of the other acts enumerated in Article III of the Convention.

10. At the same time, one should have in mind that whether “in cer-
tain cases, particularly that by the infliction of inhuman conditions of
life, the crime may be perpetrated by omission” (Stanislas Plawski, Etude
des principes fondamentaux du droit international pénal, 1972, p. 115.
Cited in United Nations doc. E/CN.4/Sub.2/415 of 4 July 1978).

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Since,

“Experience provides that a state of war or a military operations
régime gives authorities a convenient pretext not to provide a popu-
lation or a group with what they need to subsist — food, medicines,
clothing, housing . . . It will be argued that this is inflicting on the
group conditions of life calculated to bring about its physical destruc-
tion in whole or in part.” (J. Y. Dautricourt, “La prévention du
génocide et ses fondements juridiques”, Etudes internationales de
psychosociologie criminelle, Nos. 14-15, 1969, pp. 22-23. Cited in
United Nations doc. E/CN.4/Sub.2/415 of 4 July 1978, p. 27.)

Of the utmost importance is the fact that, in the incidental proceedings,
the Court cannot and should not concern itself with the definitive quali-
fication of the intent to impose upon the group conditions in which the
survival of the group is threatened. Having in mind the purpose of pro-
visional measures, it can be said that at this stage of the proceedings it is
sufficient to establish that, in the conditions of intensive bombing, there
is an objective risk of bring about conditions in which the survival of the
group is threatened.

IV. OTHER RELEVANT ISSUES

11. In paragraph 15 of the Order the Court states:

“Whereas the Court is deeply concerned with the human tragedy,
the loss of life, and the enormous suffering in Kosovo which form
the background of the present dispute, and with the continuing loss
of life and human suffering in all parts of Yugoslavia.”

The phrasing of the statement seems to me unacceptable for a number
of reasons. First, the formulation introduces dual humanitarian concern.
The Court is, it is stated, “deeply concerned”, while at the same time the
Court states “the loss of life”. So, it turns out that in the case of “all parts
of Yugoslavia” the Court technically states “the loss of life” as a fact
which does not cause “deep concern”. Furthermore, the wording of the
formulation may also be construed as meaning that Kosovo is not a part
of Yugoslavia. Namely, after emphasizing the situation in Kosovo and
Metohija, the Court uses the phrase “in all parts of Yugoslavia”. Having
in mind the factual and legal state of affairs, the appropriate wording
would be “in all other parts of Yugoslavia”. Also, particular reference to
“Kosovo” and “all parts of Yugoslavia”, in the present circumstances,
has not only no legal, but has no factual basis either. Yugoslavia, as a
whole, is the object of attack. Human suffering and loss of life are, un-
fortunately, a fact, generally applicable to the country as a whole; so, the
Court, even if it had at its disposal the accurate data on the number of

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victims and the scale of suffering of the people of Yugoslavia, it would
still have no moral right to discriminate between them. Further, the
qualification that “human tragedy and the enormous suffering in Kosovo
... form the background of the present dispute” not only is political, by
its nature, but has, or may have, an overtone of justification of the armed
attack on Yugoslavia. Suffice it to recall the fact that the respondent
State refers to its armed action as humanitarian intervention.

It is up to the Court to establish, at a later stage of the proceedings, the
real legal state of affairs, namely, the relevant facts. At the present stage,
the question of the underlying reasons for the armed attack on the Fed-
eral Republic of Yugoslavia is the object of political allegations. While
the Respondent argues that what is involved is a humanitarian interven-
tion provoked by the “human tragedy and the enormous suffering”, the
Applicant finds that sedes materiae the underlying reasons are to be
sought elsewhere — in the support to the terrorist organization in
Kosovo and in the political aim of secession of Kosovo and Metohija
from Yugoslavia.

Consequently, we are dealing here with opposed political qualifications
in which the Court should not, and, in my view, must not, enter except in
the regular court proceedings.

12. The formulation of paragraph 38 of the Order leaves the impres-
sion that the Court is elegantly attempting to drop the ball in the Security
Council’s court. Essentially, it is superfluous because, as it stands now, it
only paraphrases a basic fact that “the Security Council has special
responsibilities under Chapter VII of the Charter”. It can be interpreted,
it is true, also as an appeal to the United Nations organ, specifically
entrusted with the duty and designed to take measures in case of threat to
the peace, breach of the peace or act of aggression; but, in that case the
Court would need to stress also another basic fact — that a legal dispute
should be referred to the International Court of Justice on the basis of
Article 36, paragraph 3, of the United Nations Charter.

13. The Court, by using the term “Kosovo” instead of the official
name of “Kosovo and Metohija”, continued to follow the practice of the
political organs of the United Nations, which, by the way, was also
strictly followed by the respondent States.

It is hard to find a justifiable reason for such a practice. Except of
course if we assume political opportuneness and involved practical, politi-
cal interests to be a justified reason for this practice. This is eloquently
shown also by the practice of the designation of the Federal Republic of
Yugoslavia. After the succession of the former Yugoslav federal units,
the organs of the United Nations, and the respondent States themselves,

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have used the term Yugoslavia (Serbia and Montenegro). However, since
22 November 1995, the Security Council uses in its resolutions 1021 and
1022 the term “Federal Republic of Yugoslavia” instead of the former
“Federal Republic of Yugoslavia (Serbia and Montenegro)” without any
express decision and in a legally unchanged situation in relation to the
one in which it, like other organs of the United Nations, employed the
term “Federal Republic of Yugoslavia (Serbia and Montenegro)”. The
fact that this change in the practice of the Security Council appeared on
the day following the initialling of the Peace Agreement in Dayton gives
a strong basis for the conclusion that the concrete practice is not based
on objective, legal criteria but rather on political criteria.

By using the word “Kosovo” instead of the name “Kosovo and Meto-
hija”, the Court, in fact, is doing two things:

(a} it gives in to the colloquial use of the names of territorial units of an
independent State; and

(6) it ignores the official name of Serbia’s southern province, a name
embodied both in the constitutional and legal acts of Serbia and
of the Federal Republic of Yugoslavia. Furthermore, it runs
contrary to the established practice in appropriate international orga-
nizations. Exempli causa, the official designation of the southern
Serbian province “Kosovo and Metohija” has been used in the
Agreement concluded by the Federal Republic of Yugoslavia and
the Organisation for Security and Co-operation in Europe (/nter-
national Legal Materials, 1999, Vol. 38, p. 24).

Even if such a practice — which, in my opinion, is completely inappro-
priate not only in terms of the law but also in terms of proper usage —
could be understood when resorted to by entities placing interest and
expediency above the law, it is inexplicable in the case of a judicial organ.

14. A certain confusion is also created by the term “humanitarian law”
referred to in paragraphs 18 and 36 of the Order. The reasons for the
confusion are dual: on the one hand, the Court has not shown great con-
sistency in using this term. In the Genocide case the Court qualified the
Genocide Convention as a part of humanitarian law, although it is obvi-
ous that, by its nature, the Genocide Convention falls within the field of
international criminal law (see dissenting opinion of Judge Kreéa, in the
case concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide, Preliminary Objections, IC. J.
Reports 1996 (11), pp. 774-775, para. 108).

On the other hand, it seems that in this Order the term “humanitarian
law” has been used with a different meaning, more appropriate to the
generally accepted terminology. The relevant passage in the Order should
be mentioned precisely because of the wording of its paragraphs 18 and
36. The singling out of humanitarian law from the rules of international

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law which the Parties are bound to respect may imply low-key and timid
overtones of vindication or at least of diminishment of the legal implica-
tions of the armed attack on the Federal Republic of Yugoslavia.

Humanitarian law, in its legal, original meaning implies the rules of jus
in bello. If, by stressing the need to respect the rules of humanitarian law,
which I do not doubt, the Court was guided by humanitarian considera-
tions, then it should have stressed expressis verbis also the fundamental
importance of the rule contained in Article 2, paragraph 4, of the Char-
ter, which constitutes a dividing line between non-legal, primitive inter-
national society and an organized, de jure, international community.

(Signed) Milenko KREtA.

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