611

73

DISSENTING OPINION OF JUDGE KRECA

TABLE OF CONTENTS

COMPOSITION OF THE COURT tn THis PARTICULAR CASE

. HUMANITARIAN CONCERN IN THIS PARTICULAR CASE
. JURISDICTIONAL ISSUES

Jurisdiction of the Court ratione personae
Jurisdiction of the Court ratione materiae
Jurisdiction of the Court ratione temporis

. ADDITIONAL GROUND OF JURISDICTION
. OTHER RELEVANT ISSUES

Paragraphs
1-4

5-7

8-14

8-10
11-13
14

15-17
18-21
612 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. Ill, 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. /n 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.LJ., 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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613 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. HI, 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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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), 1 C.J. Reports 1998, p. 36, para. 11).

À 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.CLJ., Series C, No. 17-I, p. 8; Customs
Régime between Germany and Austria, 1931, P.CIJ., Series A/B,
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 ud 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.

Il. 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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616 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, 1. C.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 LaGrund (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” (Z 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 “pro-
found reservations about the procedures followed both by the Applicant
and the Court” (LaGrand (Germany v. United States of America), Pro-
visional Measures, Order of 3 March 1999, LC.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.”
(LCS. 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 consti-
tutive 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 Milosevié 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:

“TI 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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619 LEGALITY OF USE OF FORCE (DISS. OP. KRECA)

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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620 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,
prepared 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 sce-
nario’.

1 “Je langer der Krieg in Jugoslawien dauert, desto grôsser wird die Gefahr von Jang-
fristigen Schädigungen der Umwelt. Diese drohen sich über die Landesgrenzen
hinaus auszubreiten und kônnen môglicherweise nicht mehr vollstandig beseitigt wer-
den. Zu dieser Einschatzung kommt das Umweltbundesamt (UBA) in einem internen
Papier, das sich mit den dkologischen Auswirkungen des Krieges in Jugoslawien
befasst und fiir 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’.

weiter ausbreiten. ‘Bei Sicherstellung sofortigen Handelns, das unter Kriegsbedingun-
gen aber unméglich ist, bleibt die Wirkung dieser Umweltschädigungen lokal begrenzt.
Längere Verzôgerungen führen zu einem übertritt der Schadstoffe in die Schutzgiiter
Boden, Grund- und Oberflächenwasser, erhôhen das Gefährdungspotential für den
Menschen und den Sanierungsaufwand beträchtlich.”

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

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

Wie gefährlich die freigesetzten Stoffe insgesamt sind, lässt sich nach Ansicht der
UBA-Experten nur schwer abschätzen, ‘weil durch die Zerstôrung ganzer Industrie-
komplexe Mischkontaminationen verschiedenster Schadstoffe gebildet werden’. die
noch wenig erforscht seien. Noch komplizierter sei die Beurteilung von Umwelt-
schäden durch Brande und Explosionen. ‘Hier treten bezogen auf Schadstoffinventar
und Ausbreitung weit weniger kalkulierbare, zum Teil grossflächige 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 vollstandige Beseitigung nahezu unméglich macht’. . .

Die Wechselwirkungen der Produkte mit den eingesetzten Waffen dürften ‘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 19 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 49 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.

HIT. JURISDICTIONAL ISSUES

Jurisdiction of the Court Ratione Personae

8. The membership of Federal Republic of Yugoslavia in the United
Nations is in the present case one of the crucial issues within the jurisdic-
tion of the Court ratione personae.

The respondent State, when referring to the United Nations resolu-
tion 777 (1992) of 19 September 1992 and to the United Nations General
Assembly resolution 47/1 of 22 September 1992, also contends that “the
Federal Republic of Yugoslavia cannot be considered, as it claims, to be
the continuator State of the former Socialist Federative Republic of
Yugoslavia”, and that, not having duly acceded to the Organization, it is
not a Member thereof, is not a party to the Statute of the Court and can-
not appear before the Court.

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It is worth noting that the respondent State did not invoke this argu-
ment with respect to the Genocide Convention as another basis of
jurisdiction invoked by the Applicant, although the connection between
the legal identity and continuity of the Federal Republic of Yugoslavia
with the status of the Contracting Party of the Genocide Convention is
obvious (see para. 12, below). One can guess the reasons for the State to
take such a position.

Sedes materiae the question of the Federal Republic of Yugoslavia’s
membership in the United Nations can be reduced to a couple of quali-
fications:

8.1. General Assembly resolution 47/1 was adopted for pragmatic,
political purposes

The adoption of that resolution cannot, in my opinion, be divorced
from the main political stream taking place in international institutions
during the armed conflict in the former Yugoslavia. It appears that as a
political body the General Assembly of the United Nations, as well as the
Security Council which recommended that the Assembly adopt resolu-
tion 47/1, perceived such a resolution as one of political means to achieve
the desirable solution to the relevant issues in the crisis unfolding in the
former Yugoslavia.

Such a conclusion relies on the fact that in adopting resolution 47/1,
the General Assembly basically followed the opinions of the so-called
Badinter Commission engaged as an advisory body in the work of the
Conference on Yugoslavia with the aim of finding a peaceful solution to
the relevant issues. In its Opinions No. | and No. 8, the Commission
elaborates the point on territorial changes in the former Yugoslavia
which has, in its opinion, resulted in the emergence of six equal, inde-
pendent State entities corresponding in territory to the Republics as the
constituent parts of the Yugoslav Federation. In its Opinion No. 9 the
Commission proceeds from the point of finalization of the “process of
break up of SFRY” and elaborates on the effects of the alleged break up
from the standpoint of succession of States. In that context, it, inter alia,
established

“the need to terminate SFRY’s membership status in international
organizations in keeping with their statutes and that not a single suc-
cessor state may claim for itself the rights enjoyed until then by the
former SFRY as its member state” (The Peace Conference on Yugo-
slavia, Arbitration Commission, Opinion No. 9, para. 4).

Introducing draft resolution 47/L.1, Sir David Hannay (United King-
dom) said, inter alia,

“the fact that the Council is ready to consider the matter again

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within the next three months is significant. The tragic situation in the
former Yugoslavia is a matter of the highest concern to all members
of the international community. The International Conference on
the Former Yugoslavia, which opened in London on 26 August and
which now meets in Geneva, brings together the efforts of the
United Nations and the European Community. We must do every-
thing in our power to encourage the parties, with the assistance of the
Conference Co-Chairman, to settle their differences at the negotiat-
ing table, not on the battlefield. That the Council has decided to con-
sider the matter again before the end of the year will, we trust, be
helpful incentive to all the parties concerned, as an effective means of
supporting the Co-Chairman of the Conference on Yugoslavia in
their heavy task.” (United Nations doc. A/47/Pv.7, p. 161; emphasis
added).

8.2. From a legal aspect, resolution 47/1 is inconsistent and contra-
dictory

The operative part of resolution 47/1 reads as follows:

“The General Assembly,

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

The main elements of the solution in General Assembly resolution 47/1
are the following:

The opinion that the Federal Republic of Yugoslavia cannot automati-
cally continue the membership of the SFRY in the United Nations. The
stand of the main political bodies of the United Nations (the Security
Council and the General Assembly) was formulated in terms of an “opin-
ion”; namely, such a conclusion clearly stems from the fact that the rele-
vant part of General Assembly resolution 47/1 begins with the words
“considers”. It is significant to note that the General Assembly’s opinion
does not conform fully with the meaning of the Opinions Nos. 1, 8 and 9
of the so-called Badinter Arbitration Commission. Namely, in its Opin-
ions | and 8 the Commission elaborates the point on the break up of
SFRY which has, in its opinion, resulted in the emergence of six equal,
independent State entities corresponding in territory to the Republics as
the constituent parts of the Yugoslav Federation. Resolution 47/1 pro-
ceeds from a more moderate starting point. It apparently does not termi-
nate the Federal Republic of Yugoslavia’s membership in the Organi-

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zation. It simply establishes that “the Federal Republic of Yugoslavia
cannot automatically continue the membership ... in the United Nations
Organization” (emphasis added). A contrario, this means that the Fed-
eral Republic of Yugoslavia’s membership in the Organization can be
continued but not automatically. True, the resolution does not elaborate
how that can be achieved but, if we interpret it systematically and
together with Security Council resolutions 757 and 777, we will come to
the conclusion that the Federal Republic of Yugoslavia’s membership in
the Organization can be continued in case such a request is “generally
accepted”. That the legal meaning of the resolution does not imply the
termination of the Federal Republic of Yugoslavia’s membership in the
Organization is also clear from the letter of the Under-Secretary-General
and Legal Counsel of the United Nations addressed on 29 September
1992 to the Permanent Representatives to the United Nations of Bosnia
and Herzegovina and Croatia in which he stated, inter alia,

“the resolution does not terminate nor suspends Yugoslavia’s mem-
bership in the Organization. Consequently, the seat and the name-
plate remain as before . . . Yugoslav mission at United Nations
Headquarters and offices may continue to function and may receive
and circulate documents. At Headquarters, the Secretariat will con-
tinue to fly the flag of the old Yugoslavia.”

8.3. A ban on participation in the Organization’s work

That the relevant part of the resolution refers to a ban is borne out by
the use of the imperative wording (“shall not participate”). This ban is,
ratione materiae, limited along two different lines:

(a) it refers to the direct participation in the General Assembly. Indirect
participation in the work of the General Assembly is not excluded.
Elements of indirect participation are implied given that the Mission
of the Federal Republic of Yugoslavia to the United Nations con-
tinues to operate and, in particular, “may receive and circulate
documents”. It follows from the Under-Secretary-General’s inter-
pretation that the term “General Assembly” has been used in the
resolution in its generic sense, considering that it also includes the
auxiliary bodies of the General Assembly and conferences and meet-
ings convened by the Assembly ;

(b) the ban does not apply to participation in the deliberations of other
bodies in the United Nations Organization.

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8.4. The decision that the Federal Republic of Yugoslavia should
apply for membership

This part of resolution 47/1 is legally ambiguous and contradictory
both in form and in substance.

From the formal point of view, the “decision” that the Federal Repub-
lic of Yugoslavia should apply for membership in the Organization pro-
ceeds from the irrefutable assumption that the Federal Republic of
Yugoslavia wishes to have the status of a member even if it may not con-
tinue the membership in the Organization. Such an assumption is illogi-
cal, although it may prove correct in fact. Membership in the Organiza-
tion is voluntary and therefore no State is under obligation to seek
admission. The relevant wording in the resolution has not been correctly
drafted from a legal and technical point of view for it has a connotation
of such an irrefutable assumption. A correct wording would have to state
a reservation which would make such a decision conditional upon Yugo-
slavia’s explicitly expressed wish to become a member in case it is irrevo-
cably disallowed from continuing its membership in the Organization.

From the actual point of view, it is unclear why the Federal Republic
of Yugoslavia should submit an application for membership if “the reso-
lution does not terminate . .. Yugoslavia’s membership in the Organiza-
tion”. An application for admission to membership is, ex definitione,
made if a non-member State wishes to join the Organization. What could
in terms of concrete relations be the outcome of a procedure initiated by
Yugoslavia by way of application for membership? If the outcome of the
procedure were admission to membership, such a decision by the General
Assembly would be superfluous from the point of view of logic, given
that resolution 47/1 has not terminated Yugoslavia’s membership in the
Organization. Presumably, the authors of resolution 47/1 have another
outcome in mind. Maybe to confirm or to strengthen Yugoslavia’s mem-
bership in the Organization by such a procedure. This could be guessed
from the wording in the resolution which says that “the Federal Republic
of Yugoslavia cannot automatically continue the membership”. This
term or phrase literally means that the idea behind the procedure would
be to re-assert or strengthen the Federal Republic of Yugoslavia’s mem-
bership in the Organization but, confirmation of membership could
hardly have any legal meaning in this particular case — for a State is
either a member or not. It appears that the meaning of such an act could
be only non-legal; namely, political. Finally, the resolution advises the
Federal Republic of Yugoslavia to apply for admission to membership.
The logical question arises: why would a State whose membership in the
Organization has, in that very same Organization’s view, not been termi-
nated, submit a request for the establishment of something that is in the
nature of an indisputable fact?

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Finally, due regard should be paid to the concluding paragraph of
resolution 47/1 which says that the General Assembly takes note “of the
Security Council’s intention to review the matter before the end of the
main part of the 47th Session of the General Assembly”. A statement like
this is unnecessary if it was the intention of the authors of the resolution
to bring, by its adoption, to an end the debate on the continuity of the
Federal Republic of Yugoslavia’s membership in the Organization. It
seems to suggest that the idea behind resolution 47/1 was to maintain the
pace of updating the Organization’s political approach to the Yugoslav
crisis in the framework of which even the question of the Federal Repub-
lic of Yugoslavia’s membership in the Organization carries, in the latter’s
opinion, a certain specific weight. The question of the Federal Republic
of Yugoslavia’s membership in the United Nations Organization is a for-
mal one and was opened by Security Council resolution 757 of 30 May
1992, which in its operative part has set into motion the mechanism of
measures stipulated in Chapter VII of the United Nations Charter relying
on the assessment that “the situation in Bosnia-Herzegovina and in other
parts of the former Socialist Federal Republic of Yugoslavia poses a
threat to peace and security”.

It is not difficult to agree with Professor Higgins (as she then was) that,
judged from the legal point of view, the consequence arising out of reso-
lution 47/1 “is abnormal to absurdity” (Rosalyn Higgins, “The United
Nations and the Former Yugoslavia”, /nternational Affairs, Vol. 69,
p. 479).

8.5 The practice of the Organization relating to the issues raised by
the content of resolution 4711

A couple of relevant facts regarding the practice of the Organization
concerning membership of the Federal Republic of Yugoslavia raise the
question of whether the Organization acted contra factum proprium if:

{a} resolution 47/1 was adopted at the 47th Session of the General
Assembly. The delegation of the Federal Republic of Yugoslavia
took an active part as a full member in the proceedings of the 46th
Session, and the Credentials Committee unanimously recommended
approval of the credentials of the Federal Republic of Yugoslavia
(United Nations doc. A/46/563, dated 11 October 1991). In the light
of the fact that Croatia and Slovenia had seceded from Yugoslavia
on the eve of that Session, the Organization’s attitude to the Federal
Republic of Yugoslavia’s participation in the 46th Session means
that the Organization accepted the Federal Republic of Yugoslavia
as a territorially diminished predecessor State according to

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(b)

(c)

(d)

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

“criteria laid down in the wake in the partitioning of India in 1947
and consistently applied ever since — criteria that by and large
have served the United Nations and the international community
well over the past decades” (Yehuda Z. Blum, “UN Membership
of the ‘New’ Yugoslavia: Continuity or Break?”, American Jour-
nal of International Law (1992), Vol. 86, p. 833);

the delegation of the Federal Republic of Yugoslavia also took part
in the 47th Session of the General Assembly which adopted the reso-
lution contesting the right of Federal Republic of Yugoslavia to
continue automatically membership in the Organization. Not one
delegation made any objection to the delegation of Federal Republic
of Yugoslavia taking the seat of SFRY in the General Assembly. It
follows from that that the delegations had “at least tacitly accepted
the right of the ‘Belgrade authorities’ to request Yugoslavia’s seat —
the seat of one of the founding members of the United Nations”
(ibid., p. 830);

during all the time since the General Assembly passed resolution
47/1, the Federal Republic of Yugoslavia has continued to pay its
financial contributions to the Organization (see Annexes to CR 99/
25). Yugoslavia is mentioned as a Member State in the document
entitled “Status of contributions to the United Nations regular
budget as at 30 November 1998” published by the United Nations
Secretariat in its document ST/ADM/SER.B/533 of 8 December
1998. In the letter addressed to Vladislav Jovanovic, Chargé
d'Affaires of the Permanent Mission of the Federal Republic of
Yugoslavia to the United Nations, the competent authorities of the
Organization cited Article 19 of the United Nations Charter and
accompanied the citation with the formulation:

“in order for your Government not to fall under the provisions of
Article 19 of the Charter during any meetings of the General
Assembly to be held in 1998, it would be necessary that a mini-
mum payment of $11,776,400 be received by the Organization to
bring such arrears to an amount below that specified under the
terms of Article 19” (ibid);

in the practice of the United Nations Secretary-General as the
depositary of multilateral treaties, Yugoslavia figures as a party to
the multilateral treaties deposited with the Secretary-General as an
original party. The date when the SFRY expressed its consent to be
bound is mentioned as a day on which Yugoslavia is bound by that
specific instrument. Exampli causa in the “multilateral treaties depos-
ited with the Secretary-General” for 1992, and in the list of “partici-
pants” of the Convention on the Prevention and Punishment of the
Crime of Genocide, Yugoslavia is included and 29 August 1950 is
629 LEGALITY OF USE OF FORCE (DISS. OP. KRECA)

mentioned as the date of the acceptance of the obligation — the date
on which SFRY ratified that Convention. Such a model is applied,
mutatis mutandis, to other multilateral conventions deposited with
the Secretary-General of the United Nations.

On the basis of existing practice, the “Summary of practice of the
Secretary-General as depositary of multilateral treaties” concludes:

“(t]he independence of the new successor State, which then exercises
its sovereignty on its territory, is of course without effect as concerns
the treaty rights and obligations of the predecessor State as concerns
its own (remaining) territory. Thus, after the separation of parts of
the territory of the Union of Soviet Socialist Republics (which became
independent States), the Union of Soviet Socialist Republics (as the
Russian Federation) continued to exist as a predecessor State, and all
its treaty rights and obligations continued in force in respect of its
territory. The same applies to the Federal Republic of Yugoslavia
(Serbia and Montenegro), which remains as the predecessor State
upon separation of parts of the territory of the former Yugoslavia.
General Assembly resolution 47/1 of 22 September 1992, to the effect
that the Federal Republic of Yugoslavia could not automatically
continue the membership of the former Yugoslavia in the United
Nations . . . was adopted within the framework of the United
Nations and the context of the Charter of the United Nations, and
not as an indication that the Federal Republic of Yugoslavia was not
to be considered a predecessor State.” (ST/LEG.8, p. 89, para. 297.)

On 9 April 1996, on the basis of protest raised by a few Members of the
United Nations, the Legal Counsel of the United Nations issued under
“Errata” (doc. LLA41TR/220) which, inter alia, deleted the qualification
of the Federal Republic of Yugoslavia as a predecessor State contained
in paragraph 297 of the “Summary”. In my view, such a deletion is
devoid of any legal relevance since a “Summary” by itself does not have
the value of an autonomous document, a document which determines or
constitutes something. It is just the condensed expression, the external
lapidary assertion of a fact which exists outside it and independently
from it. In that sense, the Introduction to the “Summary of the practice
of the Secretary-General as the depositary of multilateral treaties” says,
inter alia, that “the purpose of the present summary is to highlight the
main features of the practice followed by the Secretary-General in this
field” (p. 1, emphasis added) but not to constitute the practice itself.

9. As regards the membership of the Federal Republic of Yugoslavia
of the United Nations, the Court takes the position that

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“Whereas, in view of its finding in paragraph 30 above, the Court
need not consider this question for the purpose of deciding whether
or not it can indicate provisional measures in the present case”
(Order, para. 33).

The Court retained the position of an ingenious but, for the purposes of
the present proceedings, unproductive e/egantiae juris processualis. The
Court’s jurisdiction ratione personae is directly dependent on the answer
to the question whether the Federal Republic of Yugoslavia can be con-
sidered to be a member State of the United Nations, both vis-a-vis the
optional clause and vis-a-vis the Genocide Convention.

It would of course be unreasonable to expect the Court to decide on
whether or not the Federal Republic of Yugoslavia is a Member of the
United Nations. Such an expectation would not be in accord with the
nature of the judicial function and would mean entering the province of
the main political organs of the world Organization — the Security
Council and the General Assembly.

But it is my profound conviction that the Court should have answered
the question whether the Federal Republic of Yugoslavia can or cannot,
in the light of the content of General Assembly resolution 47/1 and of the
practice of the world Organization, be considered to be a Member of the
United Nations and especially party to the Statute of the Court; namely,
the text of resolution 47/1 makes no mention of the status of the Federal
Republic of Yugoslavia as a party to the Statute of the International
Court of Justice. That is the import of resolution 47/1 ratione materiae.
And nothing beyond that. In that respect the position of the Court is
identical to the position of other organs of the United Nations. A con-
trario there would, exempli causa, be no need for a General Assembly
recommendation by resolution 47/229 concerning the participation of the
Federal Republic of Yugoslavia in the work of the Economic and Social
Council. In other words, resolution 47/1 makes no mention, explicitly or
tacitly, of the International Court of Justice; the same is true of the other
documents adopted on the basis of the above-mentioned resolution. It
follows from this that General Assembly resolution 47/1 has produced no
effect on the status of the Federal Republic of Yugoslavia as a party to
the Statute and this is confirmed, inter alia, by all issues of the Yearbook
of the International Court of Justice since 1992.

I am equally convinced that, both the content of the resolution, which
represents contradictio in adiecto, and the particular practice of the world
Organization after its adoption over a period of nearly seven years,
offered ample arguments for it to pronounce itself on this matter.

10. The position of the Court with respect to the Federal Republic of
Yugoslavia membership of the United Nations can be said to have

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remained within the framework of the position taken in the Order on the
indication of provisional measures in the Genocide case of 8 April 1993.

Paragraph 18 of that Order states:

“Whereas, while the solution adopted is not free from legal diffi-
culties, the question whether or not Yugoslavia is a Member of the
United Nations and as such a party to the Statute of the Court is
one which the Court does not need to determine definitively at the
present stage of the proceedings” (Application of the Convention on
the Prevention and Punishment of the Crime of Genocide, Provi-
sional Measures, Order of 8 April 1993, LC.J. Reports 1993, p. 14).

The objection may be raised that the wording of paragraph 18 is of a
technical nature, that it is not a relevant answer to the question of Fed-
eral Republic of Yugoslavia membership of the United Nations; how-
ever, it is incontestable that it has served its practical purpose because, it
seems,

“the Court was determined to establish its jurisdiction in this case
[Application of the Convention on the Prevention and Punishment of
the Crime of Genocide ] whilst at the same time avoiding some of the
more delicate, and indeed profound, concerns about the position of
the respondent State vis-a-vis the Charter and Statute” (M. C. R.
Craven, “The Genocide Case, the Law of Treaties and State Succes-
sion”, British Year Book of International Law, 1997, p. 137).

The Court tacitly persisted in maintaining this position also in the
further requests for the indication of provisional measures (Application
of the Convention on the Prevention and Punishment of the Crime of
Genocide, Order of 13 September 1993), as well as in the Judgment on
preliminary objections of 11 July 1996.

Even if such a position can be considered to be understandable in the
second proceedings for the indication of provisional measures, it never-
theless gives rise to some complicated questions in the proceedings con-
ducted in the wake of the preliminary objections raised by Yugoslavia.

In these proceedings, the Court was confronted, inter alia, also with
the question as to whether Yugoslavia is a party to the Genocide Con-
vention. It is hardly necessary to mention that the status of a Contracting
Party to the Genocide Convention was conditio sine qua non for the
Court to proclaim its jurisdiction in the case concerning Application of
the Convention on the Prevention and Punishment of the Crime of Geno-
cide.

The Court found that it has jurisdiction ratione personae, supporting
this position, in my opinion, with a shaky, unconvincing explanation (see
dissenting opinion of Judge Kreca, LCJ. Reports 1996, pp. 755-760,
paras. 91-95). For the purposes of this case, of particular interest is the
position of the Court “that it has not been contested that Yugoslavia was

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party to the Genocide Convention” (Application of the Convention on the
Prevention and Punishment of the Crime of Genocide, Preliminary Objec-
tions, Judgment, 1 C.J. Reports 1996 (II), p. 610, para. 17). The absence
of contest was the decisive argument for the Court to state that “Yugo-
slavia was bound by the provisions of the Convention on the date of the
filing of the Application in the present case” (ibid. ).

The Court has, deliberately, I presume, failed to state who did not con-
test that Yugoslavia is a party to the Genocide Convention. If it had in
mind the Applicant (Bosnia and Herzegovina), it is hardly necessary to
note that the State which is initiating proceedings before the Court would
not deny the existence of the title of jurisdiction; and, in the case in ques-
tion, the Genocide Convention was the only possible ground of the
Court’s jurisdiction. If, however, the Court had third States in mind, then
things do not stand as described by the Court, stating that “it has not
been contested”. By refusing to recognize the Federal Republic of Yugo-
slavia and its automatic continuation of membership of the United
Nations, the member States of the world Organization contested eo ipso
that the Federal Republic of Yugoslavia is automatically a party to
multilateral treaties concluded under the aegis of the United Nations
and, consequently, also a party to the Genocide Convention. The Federal
Republic of Yugoslavia can be considered to be a party to the Genocide
Convention only on the grounds of legal identity and continuity with the
Socialist Federal Republic of Yugoslavia because, otherwise, it consti-
tutes a new State, and it did not express its consent to be bound by the
Genocide Convention in the manner prescribed by Article XI of the Con-
vention, nor did it send to the Secretary-General of the United Nations
the notification of succession. A tertium quid is simply non-existent, in
particular from the standpoint of the Judgment of 11 July 1996 in the
Genocide case, in which the Court did not declare its position on the so-
called automatic succession in relation to certain multilateral treaties
(Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, Preliminary Objections, Judgment, 1 C.J. Reports
1996 (II), p. 612, para. 23).

All in all, the Court in the present Order remained consistent with its
“avoidance” position, persisting in its statement that it “need not con-
sider this question for the purpose of deciding whether or not it can indi-
cate provisional measures in the present case”.

Such is the Court’s restraint with respect to this highly relevant issue
and its reluctance to make its position known may well create the impres-
sion quite differently from that expressed by Craven in regard to the
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide case — that “the Court was determined to establish its
jurisdiction [over the] case whilst at the same time avoiding some of more
delicate, and indeed profound, concerns about the position” of Yugosla-

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via vis-à-vis the Charter and the Statute and its inevitable legal conse-
quences upon proceedings pending before the Court.

Jurisdiction of the Court Ratione Materiae

11. Iam 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 IT 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, C.J. Reports 1996 (I), p. 240,
para. 26)” (Order, para. 40).

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

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sion on the present request for the indication of provisional measures,
now to establish the existence of breaches of the Genocide Convention”
(Application of the Convention on the Prevention and Punishment of the
Crime of Genocide, Provisional Measures, Order of 8 April 1993, LCJ.
Reports 1993, p. 22, 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, LCJ.
Reports 1996 (I), p. 23, para. 43).

12. 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
proving. However, it could not be inferred from this that the use of
force is unrelated and cannot have any relationship with the commission
of the crime of genocide. Such a conclusion would be contrary to ele-
mentary logic.

Article I] 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;

(6) Causing serious bodily or mental harm to members of the
group;

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

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

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

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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”.

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

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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 dolus 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 ITI of the Convention.

13. 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).

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.

Jurisdiction of the Court Ratione Temporis

14. The ratione temporis element of jurisdiction is considered by the
Court to be the linchpin of its position regarding the absence of jurisdic-
tion in this particular case. In its Order the Court states, inter alia:

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“Whereas it is an established fact that the bombings in question
began on 24 March 1999 and have been conducted continuously
over a period extending beyond 25 April 1999; and whereas the
Court has no doubt, in the light, inter alia, of the discussions at the
Security Council meetings of 24 and 26 March 1999 (S/PV.3988 and
3989), that a ‘legal dispute’ (East Timor (Portugal v. Australia),
1 C.J. Reports 1995, p. 100, para. 22) ‘arose’ between Yugoslavia
and the Respondent, as it did also with the other NATO member
States, well before 25 April 1999 concerning the legality of those
bombings as such, taken as a whole;

Whereas the fact that the bombings have continued after 25 April
1999 and that the dispute concerning them has persisted since that
date is not such as to alter the date on which the dispute arose;
whereas each individual air attack could not have given rise to a
separate subsequent dispute; and whereas, at this stage of the pro-
ceedings, Yugoslavia has not established that new disputes, distinct
from the initial one, have arisen between the Parties since 25 April
1999 in respect of subsequent situations or facts attributable to the
Netherlands” (Order, paras. 28 and 29).

It appears that such a stance of the Court is highly questionable for two
basic reasons:

— firstly, for reasons of a general nature to do with jurisprudence of the
Court in this particular matter, on the one hand, and with the nature
of the proceedings for the indication of provisional measures, on the
other; and,

— secondly, for reasons of a specific nature deriving from the circum-
stances of the case in hand.

14.1. As far as the jurisdiction of the Court is concerned, it seems
incontestable that a liberal attitude towards the temporal element of the
Court’s jurisdiction in the indication of provisional measures has become
apparent. The ground of such an attitude is the fact stressed by the Court
almost regularly, so that:

“it cannot be accepted a priori that a claim based on such a com-
plaint falls completely outside the scope of international jurisdiction;

the[se] considerations . . . suffice to empower the Court to entertain
the Request for interim measures of protection;

the indication of such measures in no way prejudges the question of
the jurisdiction of the Court to deal with the merits of the case and
leaves unaffected the right of the Respondent to submit arguments
against such jurisdiction” (Anglo-Iranian Oil Co., Order of 5 July
1951, L C.J. Reports 1951, p. 93),

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and

“on a request for provisional measures the Court need not, before
indicating them, finally satisfy itself that it has jurisdiction on the
merits of the case . . . it ought not to act under Article 41 of the
Statute if the absence of jurisdiction on the merits is manifest” (Fish-
eries Jurisdiction (United Kingdom v. Iceland), Interim Protection,
Order of 17 August 1972, 1 C.J. Reports 1972, p. 15, para. 15: and,
Fisheries Jurisdiction (Federal Republic of Germany v. Iceland),
Interim Protection, Order of 17 August 1972, 1. C.J. Reports 1972,
p. 33, para. 16).

It is hardly necessary to note that the formulation “need not . . . finally
satisfy itself that it has jurisdiction on the merits of the case” relates to
jurisdiction in toto and that, consequently, it includes also jurisdiction
ratione temporis. The application of the above general attitude of the
Court towards jurisdiction ratione temporis may be illustrated by two
characteristic cases:

(a) In the disputes concerning Lockerbie, the Court established, inter
alia that:

“in the course of the oral proceedings the United States contended
that the requested provisional measures should not be indicated
because Libya had not presented a prima facie case that the pro-
visions of the Montreal Convention provide a possible basis for
jurisdiction inasmuch as the six-month period prescribed by Ar-
ticle 14, paragraph 1, of the Convention had not yet expired when
Libya’s Application was filed; and that Libya had not established
that the United States had refused to arbitrate” (Questions of
Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jama-
hiriya v. United States of America), Provisional Measures, Order
of 14 April 1992, 1 C.J. Reports 1992, p. 122, para. 25),

and that,

“in the context of the [proceedings in the Lockerbie case] on a
request for provisional measures, [the Court] has, in accordance
with Article 41 of the Statute, to consider the circumstances drawn
to its attention as requiring the indication of such measures, but
cannot make definitive findings either of fact or of law on the
issues relating to the merits, and the right of the Parties to contest
such issues at the stage of the merits must remain unaffected by
the Court’s decision” (ibid., p. 126, para. 41).

(b) The question of jurisdiction of the Court ratione temporis in the
proceedings for the indication of provisional measures also arose in

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the case concerning the Application of the Convention on the Preven-
tion and Punishment of the Crime of Genocide. In its Order on the
request for the indication of provisional measures of 8 April 1993,
the Court stated, inter alia:

“Whereas the Court observes that the Secretary-General has
treated Bosnia-Herzegovina, not as acceding, but as succeeding to
the Genocide Convention, and if this be so the question of the
application of Articles XI and XIII of the Convention would not
arise; whereas however the Court notes that even if Bosnia-Herze-
govina were to be treated as having acceded to the Genocide Con-
vention, with the result that the Application might be said to be
premature when filed, ‘this circumstance would now be covered’
by the fact that the 90-day period elapsed between the filing of the
Application and the oral proceedings on the request (cf. May-
rommatis Palestine Concessions, Judgment No. 2, 1924, P.C.IJ.,
Series A, No. 2, p. 34); whereas the Court, in deciding whether to
indicate provisional measures, is concerned not so much with the
past as with the present and with the future; whereas, accordingly
even if its jurisdiction suffers from the temporal limitation asserted
by Yugoslavia — which it does not now have to decide — this is
not necessarily a bar to the exercise of its powers under Article 41
of the Statute” (Application of the Convention on the Prevention
and Punishment of the Crime of Genocide, Provisional Measures,
Order of 8 April 1993, 1 C.J. Reports 1993, p. 16, para. 25).

As far as the nature of the proceedings for the indication of provisional
measures is concerned, they are surely not designed for the purpose of the
final and definitive establishment of the jurisdiction of the Court. That is
why in the practice of the Court “prima facie jurisdiction” is almost
uniformly referred to when the indication of provisional measures is
involved. Although the explicit definition of “prima facie jurisdiction” is
of course hard to find in the Court’s jurisprudence, its constitutive ele-
ments are relatively easy to determine. The determinant “prima facie”
itself implies that what is involved is not a definitely established jurisdic-
tion, but a jurisdiction deriving or supposed to be normally deriving from
a relevant legal fact which is defined in concreto as the “title of jurisdic-
tion”. Is reference to the “title of jurisdiction” sufficient per se for prima
facie jurisdiction to be constituted? It is obvious that the answer to this
question must be in the negative.

But, it could be said that the “title of jurisdiction” is sufficient per se to
constitute prima facie jurisdiction except in case “the absence of jurisdic-
tion on the merits is manifest” (Fisheries Jurisdiction (United Kingdom
v. Iceland), Interim Protection, Order of 17 August 1972, I. C.J. Reports
1972, p. 15, para. 15; Fisheries Jurisdiction (Federal Republic of Ger-

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many v. Iceland), Interim Protection, Order of 17 August 1972, LCJ.
Reports 1972, p. 33, para. 16).

In other words, in question is the case when absence of jurisdiction is
obvious and manifest stricto sensu, i.e., when States try to use the Court
in situations when there is no ground for jurisdiction whatsoever.

Well-established jurisprudence of the Court clearly shows that the
absence of temporal element of jurisdiction of the Court, even if mani-
fest, does not exclude jurisdiction of the Court if the temporal defect can
be easily remedied.

In its Judgment on preliminary objections raised by Yugoslavia in the
case concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide of 11 July 1996, the Court stated
inter alia:

“It is the case that the jurisdiction of the Court must normally be
assessed on the date of the filing of the act instituting proceedings.
However, the Court, like its predecessor, the Permanent Court of
International Justice, has always had recourse to the principle accord-
ing to which it should not penalize a defect in a procedural act which
the applicant could easily remedy. Hence, in the case concerning the
Mavrommatis Palestine Concessions, the Permanent Court said:

‘Even if the grounds on which the institution of proceedings was
based were defective for the reason stated, this would not be an
adequate reason for the dismissal of the applicant’s suit. The Court,
whose jurisdiction is international, is not bound to attach to mat-
ters of form the same degree of importance which they might pos-
sess in municipal law. Even, therefore, if the application were pre-
mature because the Treaty of Lausanne had not yet been ratified,
this circumstance would now be covered by the subsequent deposit
of the necessary ratifications.’ (P.C_LJ., Series A, No. 2, p. 34.)

The same principle lies at the root of the following dictum of the Per-
manent Court of International Justice in the case concerning Certain
German Interests in Polish Upper Silesia:

‘Even if, under Article 23, the existence of a definite dispute
were necessary, this condition could at any time be fulfilled by
means of unilateral action on the part of the applicant Party. And
the Court cannot allow itself to be hampered by a mere defect of
form, the removal of which depends solely on the Party con-
cerned.’ (P.C.LJ., Series A, No. 6, p. 14.)

The present Court applied this principle in the case concerning the
Northern Cameroons (I.C_J. Reports 1963, p. 28), as well as Military
and Paramilitary Activities in and against Nicaragua (Nicaragua
v. United States of America) when it stated: ‘It would make no
sense to require Nicaragua now to institute fresh proceedings based

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on the Treaty, which it would be fully entitled to do.’ (I. C.J. Reports
1984, pp. 428-429, para. 83.)

In the present case, even if it were established that the Parties,
each of which was bound by the Convention when the Application
was filed, had only been bound as between themselves with effect
from 14 December 1995, the Court could not set aside its jurisdic-
tion on this basis, inasmuch as Bosnia and Herzegovina might at any
time file a new application, identical to the present one, which would
be unassailable in this respect.” (Application of the Convention on
the Prevention and Punishment of the Crime of Genocide, Prelimi-
nary Objections, Judgment, I.C.J. Reports 1996 (11), pp. 613-614,
para. 26.)

The definitive and final establishment of the temporal element of juris-
diction in the proceedings for the indication of provisional measures is
resisted, in addition to the nature of the proceedings as such, also by the
nature of ratione temporis jurisdiction of the Court. Namely,

“jurisdiction ratione temporis does not exist as an independent con-
cept of the law governing international adjudication, and more spe-
cifically of the law governing the jurisdiction and competence of the
Court. It is a dependent concept, giving rise to a particular problem
of determining the nature and effect of that dependency on the per-
sonal or the material jurisdiction of the Court, as the case may be.”
(Shabtai Rosenne, The Law and Practice of the International Court,
1920-1996, Vol. II, p. 583.)

14.2. Is it possible to argue that in the case in hand the reserve ratione
temporis in the Yugoslav declaration of acceptance of compulsory juris-
diction of the Court is of such a nature that one could say that the
“absence of jurisdiction on the merits” — is manifest?

There is no doubt that there exists a fundamental difference between
the Parties concerning the qualification of the nature of the armed attack
on the Federal Republic of Yugoslavia. The Respondent finds that two
months of bombing and other acts aimed against the Federal Republic of
Yugoslavia represent “a continued situation”, an inextricable organic
unity of a variety of acts, while Yugoslavia maintains that in question
isa

“breach of an international obligation . . . composed of a series of
actions or omissions in respect of separate cases, [that] occurs at the
moment when that action or omission of the series is accomplished
which establishes the existence of the composite act” (The Interna-
tional Law Commission's Draft Articles on State Responsibility,
Part 1, Articles 1-35, Art. 25 (2), p. 272).

In this respect, the Application has invoked Article 25 (2) of the Draft

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Articles on State Responsibility, prepared by the International Law
Commission, which stipulates, inter alia, that:

“the time of commission of the breach extends over the entire period
from the first of the actions or omissions constituting the compo-
site act not in conformity with the international obligation and so
long as such actions or omissions are repeated” (The International
Law Commissions Draft Articles on State Responsibility, Part 1,
Articles 1-35, Art. 25 (2), p. 272).

This fundamental difference in the outlook on the armed attack on the
Federal Republic of Yugoslavia, represents, legally speaking, “a disagree-
ment over a point of law . .. a conflict of legal views or of interests
between two persons” as defined in the Mavrommatis Palestine Conces-
sions (Judgment No. 2, 1924, P.C.LJ., Series A, No. 2, p. 11).

Consequently, in question is a dispute between the Parties, which is
not, per se, a matter of jurisdiction, in particular not a matter of prima
facie jurisdiction; however, the Court’s decision on this dispute may have
an effect on its jurisdiction ratione temporis.

The Court, faced by a dispute of this kind, theoretically had two
options at its disposal:

(a) to resolve it lege artis. This possibility is, from the aspect of the
Court’s well-settled jurisprudence, only theoretical. Because we are
dealing here with a matter which, as a rule, is not solved in the pro-
ceedings for the indication of provisional measures but in the pro-
cedure dealing with the merits of the case;

(b) to establish, as it has become customary for the Court, that there is
a disagreement over a point of law, but that it

“cannot make definitive findings either of fact or of law on the
issues relating to the merits, and the right of the Parties to contest
such issues at the stage of the merits must remain unaffected by
the Court’s decision” (Questions of Interpretation and Application
of the 1971 Montreal Convention arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), Provisional Measures, Order of 14 April 1992, LCJ.
Reports 1992, p. 126, para. 41).

However, the Court has chosen a third, and, in my opinion, the least
acceptable solution. The Court did not enter into the resolution of the
case in hand; moreover, it has not even determined its basic features, nor
established that the dispute, by its nature, is not appropriate for being
dealt with in the proceedings the main purpose of which is to preserve the
rights of either Party, rights to be confronted at the merits stage of the
case. But, it has simply accepted one of the conflicting legal views and
thus made an interesting turnaround — by entering the sphere of interim
judgment, without a formal judgment.

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IV. ADDITIONAL GROUND OF JURISDICTION

15. During the second day of the oral proceedings before the Court,
the Applicant presented, vis-à-vis the Netherlands as the respondent
State, an additional, new basis of jurisdiction; namely, Article 4 of the
Treaty of Judicial Settlement, Arbitration and Conciliation between the
Netherlands and the Kingdom of Yugoslavia, 1931, which reads:

“If, in the case of one of the disputes referred to in Article 2, the
two Parties have not had recourse to the Permanent Conciliation
Commission, or if that Commission has not succeeded in bringing
about a settlement between them, the dispute shall be submitted
jointly under a special agreement, either to the Permanent Court of
International Justice, which shall deal with the dispute subject to the
conditions and in accordance with the procedure laid down in its
Statute, or to an arbitral tribunal which shall deal with it subject to
the conditions and in accordance with the procedure laid down by
the Hague Convention of October 18, 1907, for the Pacific Settle-
ment of International Disputes.

If the Parties fail to agree as to the choice of a Court, the terms of
the special agreement, or in the case of arbitral procedure, the
appointment of arbitrators, either Party shall be at liberty, after
giving one month’s notice, to bring the dispute, by an application,
direct before the Permanent Court of International Justice.”

In his presentation counsel of the Netherlands explained, systemati-
cally and in detail, both formal and substantive, reasons against estab-
lishing jurisdiction of the Court on the basis of Article 4 of the said
Treaty.

The formal reason is associated with the time of the Applicant’s invok-
ing of the above Treaty as a basis of jurisdiction. The Netherlands, as the
respondent State, finds that it has been submitted at a late stage in the
proceedings “shortly before the close of the hearings” (CR 99/26, p. 3),
and that, therefore, it is inadmissible.

The Court finds:

“Whereas the invocation by a party of a new basis of jurisdiction
in the second round of oral argument on a request for the indication
of provisional measures has never before occurred in the Court’s
practice; whereas such action at this late stage, when it is not
accepted by the other party, seriously jeopardizes the principle of
procedural fairness and the sound administration of justice; and
whereas in consequence the Court cannot, for the purpose of decid-
ing whether it may or may not indicate provisional measures in the
present case, take into consideration the new title of jurisdiction
which Yugoslavia sought to invoke on 12 May 1999.” (Order,
para. 44.)

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Such a position of the Court is far from being tenable.

The position of the Court with respect to additional grounds seems
well settled in the Court’s jurisprudence. In its Judgment of 26 November
1984 in the Nicaragua case, the Court stated that:

“The Court considers that the fact that the 1956 Treaty was not
invoked in the Application as a title of jurisdiction does not in itself
constitute a bar to reliance being placed upon it in the Memorial.
Since the Court must always be satisfied that it has jurisdiction
before proceeding to examine the merits of a case, it is certainly
desirable that ‘the legal grounds upon which the jurisdiction of the
Court is said to be based’ should be indicated at an early stage in the
proceedings, and Article 38 of the Rules of Court therefore provides
for these to be specified ‘as far as possible’ in the application. An
additional ground of jurisdiction may however be brought to the
Court’s attention later, and the Court may take it into account pro-
vided the Applicant makes it clear that it intends to proceed upon
that basis (Certain Norwegian Loans, 1 C.J. Reports 1957, p. 25),
and provided also that the result is not to transform the dispute
brought before the Court by the application into another dispute
which is different in character (Société Commerciale de Belgique,
P.C.LJ., Series AIB, No. 78, p. 173).” (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua V. United States of
America), LC.J. Reports 1984, pp. 426-427, para. 80.)

The question of admissibility of additional grounds was considered by
the Court also in the second request for the indication of provisional
measures in the case concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide.

By a second request filed in the Registry on 27 July 1993, Bosnia and
Herzegovina requested that the Court indicate additional provisional
measures. By letters dated 6 August, 10 August and 13 August 1993, the
Agent of Bosnia and Herzegovina submitted that the Court’s jurisdiction
was grounded not only on the jurisdictional bases previously put forward
but also on additional grounds.

In its Order of 13 September 1993, in paragraph 28, the Court con-
cluded that:

“for the purposes of a request for indication of provisional mea-
sures, it should therefore not exclude a priori such additional bases
of jurisdiction from consideration, but that it should consider
whether the texts relied on may, in all the circumstances, including
the considerations stated in the decision quoted above, afford a basis
on which the jurisdiction of the Court to entertain the Application
might prima facie be established” (Application of the Convention on
the Prevention and Punishment of the Crime of Genocide, Provi-

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sional Measures, Order of 13 September 1993, I C.J. Reports 1993,
p. 339).

16. Consequently, it follows that, from the standpoint of the Court’s
jurisprudence, three conditions are essential for additional grounds to
qualify as admissible:

(a) that the Applicant makes it clear that it intends to proceed upon
that basis;

(b) that the result of invoking additional grounds is not to transform
the dispute brought before the Court by the application into another
dispute which is different in character; and

(c) that additional grounds afford a basis on which the jurisdiction of
the Court to entertain the application might be prima facie estab-
lished.

It is difficult to deny that all the three relevant conditions have con-
curred in the case in hand for additional grounds to be admissible.

The very fact that the Applicant invoked Article 4 of the Treaty of
1931, with reliance on the reserve regarding the right to amend the Appli-
cation, offers per se sufficient ground for the conclusion that it intends
to proceed upon that basis. Furthermore, in the request the Applicant
clearly stated that in question is a Supplement to the Application against
the Netherlands “for violation of the obligation not to use force”, which
implies that additional ground does not transform the dispute brought
before the Court into another dispute which is different in character. (As
an example of additional grounds objectively leading to the transforma-
tion of the dispute before the Court into another dispute which is differ-
ent in character, one may mention grounds presented by Bosnia and
Herzegovina in a second request for the indication of provisional meas-
ures filed with the Registry of the Court on 27 July 1993: namely, that it
is difficult to prove that the 1919 Treaty concluded between the Allied
and Associated Powers and the Kingdom of the Serbs, Croats and
Slovenes on the Protection of Minorities or the

“Customary and Conventional International Laws of War and Inter-
national Humanitarian Law, including but not limited to the four
Geneva Conventions of 1949, their First Additional Protocol of
1977, the Hague Regulations on Land Warfare of 1907” (Applica-
tion of the Convention on the Prevention and Punishment of the
Crime of Genocide, Provisional Measures, Order of 13 September
1993, LC J. Reports 1993, p. 341, para. 33)

are directly linked with the object of the dispute in the case concerning
Application of the Convention on the Prevention and Punishment of the
Crime of Genocide and do not transform the dispute brought before the
Court into another one.)

And finally it seems to me to be indisputable that the 1931 Treaty was

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concluded and designed for the purpose of dealing with disputes which
may arise between the Contracting Parties through “conciliation, judicial
settlement and arbitration” per definitionem affords a basis on which the
jurisdiction of the Court to entertain the Application may be established.
Article 4 (1) stipulated that “the dispute shall be submitted jointly under
a special agreement” and, as that obviously is not the case, only para-
graph 2 of the said Article may be the appropriate basis of jurisdiction of
the Court pro futuro.

Accordingly, it remains to be established whether the Applicant invoked
additional grounds in extremis at a late stage of the proceedings.

Article 38, paragraph 2, of the Rules of Court provides that “[tlhe
Application shall specify as far as possible the legal grounds upon which
the jurisdiction of the Court is said to be based” (emphasis added). The
phrase “as far as possible” clearly indicates that the Application need not
necessarily specify all the legal grounds upon which the jurisdiction of the
Court is “said to be based”. The jurisprudence of the Court, as may be
seen from the cases referred to above, has been established in accordance
with this, I would say, the only possible interpretation of Article 38, para-
graph 2, of the Rules of Court.

Neither the Statute nor the Rules of Court contain provisions which,
directly or indirectly, define what is an “early” or a “late” stage of the
proceedings.

It is certain that the standpoints of litigating parties cannot per se be
taken as a reliable and convincing criterion. Their perception of “the
early or timely” and “late” is, quite understandably, burdened with sub-
jectivism.

Hence, it seems necessary to resort to some, at least basically, objective
criterion for the assessment of what is a “late stage of the proceedings”.

From the aspect of the Rules of Court it may be contended that the
“late or latest” stage of the proceedings coincides with the formal closure,
at least when the proceedings for the indication of provisional measures
are involved. Such an interpretation seems suggested by Article 74, para-
graph 3, of the Rules of Court which, inter alia, provides that “[t]he
Court shall receive and take into account any observations that may be
presented to it before the closure of the oral proceedings” (emphasis
added.) The broad, general formulation “any observations” implies that
“observations” may be presented either orally or in written form.

Such a broadly conceived right of the parties in the proceedings for the
indication of provisional measures, in particular when grounds for juris-
diction are in question, must be brought into correspondence with the
essential need for the Court to find, within a short time-limit commensu-
rate with the urgency of the proceedings, a satisfactory solution both
with respect to prima facie jurisdiction and with respect to other relevant
facts.

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The imperative wording of the relevant provision does not allow
departure. However, it is up to the Court to find a practical solution in
each particular case, without derogating from the substance of this provi-
sion, a solution in which, in keeping with the fundamental equality of the
parties, would make it possible for the other party to state its position
with respect to the relevant matter — in this particular case with respect
to additional grounds of jurisdiction.

In the case in hand the Court proceeded in this way, affording an
opportunity for the party within the appropriate time-limit which corre-
sponded to the time-limit in which the parties in the second round of
hearing had to respond to the allegations of the parties submitted in the
first round.

The argument used by the Court, inter alia, to vindicate the qualifica-
tion that additional ground of jurisdiction, as contained in Article 4 of
the Treaty of 1930, is inadmissible is nothing more than just a formal jus-
tification of convenience.

If one follows the logic that an action in a litigation is inadmissible just
because the Court is confronted with it for the first time, then one might
well presume that the Court, after being constituted in 1946, would have
found itself commencing its function in an exceptionally difficult situa-
tion without previously having had the opportunity to familiarize itself
with the course of the litigation and with the actions of the parties.

17. In addition to the formal question, questions of a substantive
nature arise. The basic question of a substantive nature is whether the
Federal Republic of Yugoslavia is a Contracting Party to the 1931
Treaty. The matter this time boils down to the qualification of the terri-
torial changes which have occurred in the former Socialist Federal Repub-
lic of Yugoslavia and their consequences for the status of the Federal
Republic of Yugoslavia.

In concreto, the matter may be viewed on several levels:

(a) if the Court has found that the Federal Republic of Yugoslavia is a
Member of the United Nations irrespective of the basis and modali-
ties of its position — whether from the standpoint of the proceed-
ings before the Court or in general —- then ipso facto it may be
inferred that the Federal Republic of Yugoslavia is a Contracting
Party to the Treaty of 1931, with reliance on the rule embodied in
Article 35 of the Convention on the Succession of States with
respect to international treaties which establishes that:

“When, after separation of any part of the territory of a State,
the predecessor State continues to exist, any treaty which at the
date of succession of States was in force in respect of the predeces-
sor State continues in force in respect of its remaining territory
unless :

(a) the States concerned otherwise agree;
(b) it is established that the treaty related only to the territory
which has separated from the predecessor State; or

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(c) it appears from the treaty or is otherwise established that
the application of the treaty in respect of the predecessor State
would be incompatible with the object and purpose of the treaty
or would radically change the conditions for its operation.”
(Vienna Convention on Succession of States in Respect of Trea-
ties, Art. 35, United Nations Conference on Succession of States
in Respect of Treaties, Official Records, Vol. UI, p. 194.)

(b) if the Court has found that the Federal Republic of Yugoslavia can-
not automatically continue the membership of the Socialist Federal
Republic of Yugoslavia in the United Nations on the basis of Gen-
eral Assembly resolution 47/1, such a position of the Court need not
necessarily lead to a conclusion that the Federal Republic of Yugo-
slavia is not a Contracting Party to the Treaty of 1931. The notions
of “continuity of membership in the United Nations” and “legal
identity and continuity” are not identical.

The automatic continuation of membership in the United Nations is,
undoubtedly, one of the forms in which the legal continuity of a State
affected by territorial changes is expressed. However, it does not auto-
matically follow from the above that the continuity of membership in the
United Nations covers fully the notion of legal continuity of a State;
namely, although it may be a very important component of legal conti-
nuity of a State, especially for political reasons, the membership in the
United Nations taken per se can neither constitute that continuity nor
nullify it. A State’s membership in international organizations gives con-
stitutional effect to the notion of continuity but only in company with
other relevant elements to which it is organically linked. This refers in the
first place to diplomatic relations and the status of a party to treaties in
force.

By its conduct after the secession of the former Yugoslav federal units
the Netherlands recognized, at least de facto, the legal identity and con-
tinuity of the Federal Republic of Yugoslavia. Namely, the Netherlands
ranks among the group of countries which have in continuo and without
any interruption in time at all continued to maintain diplomatic relations
with the Federal Republic of Yugoslavia, relations which it had previ-
ously established and maintained in various periods of time with the
former Socialist Federal Republic of Yugoslavia. Even when it recog-
nized the seceded Yugoslav federal units as sovereign and independent
States, and established diplomatic relations with them, the Netherlands
did not, in the form of an instrument appropriate to inter-State relations,
express an Official, legally relevant, position to the effect that it considers
the Federal Republic of Yugoslavia a new State and that it is bringing
diplomatic relations in line in accordance with that fact.

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The Netherlands makes no bones of the fact that it was in negotiations
with the Federal Republic of Yugoslavia; that preliminary agreement
was reached for a certain number of bilateral treaties concluded with the
Socialist Federal Republic of Yugoslavia to continue in force, but that
the Treaty of 1931 was not in that group of treaties, and that the agree-
ment arrived at was not formally confirmed.

Leaving aside the question whether the continuation in force of the
Treaty of 1931 was addressed or not, a number of facts are indisputable:

(a) that, on the basis of the agreement reached, but not confirmed
formally, the Netherlands agreed that a certain number of bilateral
treaties concluded with the Socialist Federal Republic of Yugoslavia
continue in force also with the Federal Republic of Yugoslavia.
Thus, the Netherlands, volens-nolens, tacitly recognized the legal
identity of the Federal Republic of Yugoslavia and the continuity
between the Socialist Federal Republic of Yugoslavia and the Fed-
eral Republic of Yugoslavia;

(6) the agreement reached on the continuation in effect of a certain
number of bilateral treaties, although without formal confirmation,
is not without legal effects. It could be said to fall within the cat-
egory of oral, informal treaties which the Convention on the Law of
Treaties recognizes as being of binding character. In the commen-
tary on Article 2, “Use of Terms”, of the Convention it is stated,
inter alia:

“Tt]he restriction of the use of the term ‘treaty’ in the draft
articles to international agreements expressed in writing is not
intended to deny the legal force of oral agreements under inter-
national law” (Yearbook of the International Law Commission,
1996, Vol. II, p. 189).

Finally, it is hard to presume that, in the preparations for negotiations
on the continuation in force of bilateral treaties concluded with the
Socialist Federal Republic of Yugoslavia, a highly organized State such
as the Netherlands did not look into the state of its treaty relations with
the Federal Republic of Yugoslavia. In particular, the fact should be
borne in mind that the federal Yugoslavia that emerged from the Second
World War was also formally recognized by the international community
as continuator of the Kingdom of Yugoslavia, and such a recognition
implied, inter alia, that federal Yugoslavia is bound by all rights and
obligations under the treaties concluded by the Kingdom of Yugoslavia
before the Second World War.

The fact that the Netherlands is not a Contracting Party to the Con-
vention on Succession is not relevant in terms of the rule embodied in
Article 35 of the Convention.

The rule is associated with the existing, customary law and is binding
on States over and above, and independently of, the Convention. The

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Convention on Succession is a sui generis mixture of elements of codifica-
tion and progressive development. The rule contained in Article 35 of the
Convention, as an expression of the codification of the existing, custom-
ary law, has only a declarative meaning.

Hence there follows the inevitable conclusion that the Netherlands
knew or was obliged to know that the Treaty of 1931 is in force and that,
consequently, it is binding on it. It is hard to believe that a State, as a
professionally and intellectually highly organized international legal sub-
ject, is not aware of its rights and obligations.

Generally speaking, two assumptions are possible:

(a) that the Netherlands was not aware that the Treaty of 1931 is in
force. If this assumption is correct, the Netherlands was mistaken
with respect to its rights (error in jus). According to the general legal
principle — ignorantia legis nocet — also embodied in the Law of
Treaties (1969), such a mistake is irrelevant;

(b) the Netherlands was aware of the fact that the Treaty of 1931 was in
force but, for some reasons, it did not disclose it in the proceedings
before the Court. For practical purposes of the proceedings before
the Court, the difference between assumptions under (a) and (5) is
here “immaterial”.

The position of the Court expressed in paragraph 44 of the Order is far
from being acceptable.

By the clear and unambiguous indication in that regard of the wording
of Article 74, paragraph 3, of the Rules of Court, the Court was under
the obligation to receive and take into account observations of the Fed-
eral Republic of Yugoslavia which relates to the Treaty of 1931 as addi-
tional grounds of jurisdiction. Article 4 of the Treaty is a prima facie
basis of the jurisdiction of the Court in the proceedings for the indication
of provisional measures requested by the Applicant. The Court, pursuing
the logic which it implemented in the Genocide case, need not have
entered into the matter of succession of States. In the second proceedings
for the indication of provisional measures in the Genocide case, in con-
nection with the contentions of Bosnia and Herzegovina as to the 1919
Treaty as a basis of jurisdiction, the Court concluded:

“the Court will not have to pronounce on the question whether
Articles 11 and 16 of the 1919 Treaty are still in force, nor on
their interpretation; whereas the 1919 Treaty on the face of its text
imposes an obligation on the Kingdom of the Serbs, Croats and
Slovenes to protect minorities within its own territory; whereas
accordingly, if, and in so far as, Yugoslavia is now bound by the
1919 Treaty as successor of that Kingdom, its obligations under it

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would appear to be limited to the present territory of Yugoslavia”
(Application of the Convention on the Prevention and Punishment of
the Crime of Genocide, Provisional Measures, Order of 13 Septem-
ber 1993, 1 C.J. Reports 1993, p. 340, para. 31).

In addition to the reasons associated with the consistency of the Court’s
jurisprudence in essentially identical situations, analogy in the present
case derives also from the fact that the Treaty of 1931 may be considered
as a treaty implementation of the general cogent obligation to settle dis-
putes between the Contracting Parties in a peaceful way.

Even if the document in which the Applicant pointed to the Treaty of
1931 as additional grounds of jurisdiction were declared “inadmissible”,
the Court could not have ignored the fact that the Treaty exists. In that
case, the Court could have differentiated between the document as such
and the Treaty of 1931, per se, as a basis of jurisdiction.

V. OTHER RELEVANT ISSUES

18. In paragraph 16 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
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

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... 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.

19. The formulation of paragraph 50 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.

20. 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,
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

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“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 (Jnter-
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.

21. A certain confusion is also created by the term “humanitarian law”
referred to in paragraphs 19 and 48 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, I.CJ.
Reports 1996 (IT), 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 para-
graphs 19 and 48. The singling out of humanitarian law from the rules
of international law which the Parties are bound to respect may imply
low-key and timid overtones of vindication or at least of diminishment

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of the legal implications 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 KRECA.

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