INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

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

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

FURTHER REQUESTS FOR THE INDICATION
OF PROVISIONAL MEASURES

ORDER OF 13 SEPTEMBER 1993

1993

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,
AVIS CONSULTATIFS ET ORDONNANCES

AFFAIRE RELATIVE A L’APPLICATION
DE LA CONVENTION POUR LA PREVENTION
_ ET LA REPRESSION DU CRIME DE GENOCIDE

(BOSNIE-HERZEGOVINE
c. YOUGOSLAVIE (SERBIE ET MONTENEGRO))

NOUVELLES DEMANDES EN INDICATION
DE MESURES CONSERVATOIRES

ORDONNANCE DU 13 SEPTEMBRE 1993
Official citation :

Application of the Convention on the Prevention and Punishment
of the Crime of Genocide, Provisional Measures, Order of 13 September 1993,
ILCJ, Reports 1993, p. 325

Mode officiel de citation :

Application de la convention pour la prévention et la répression du crime
de génocide, mesures conservatoires, ordonnance du 13 septembre 1993,
C.LJ. Recueil 1993, p. 325

Sales number
ISSN 0074-4441 N° de vente : 640
ISBN 92-1-070699-4

325

INTERNATIONAL COURT OF JUSTICE

1993 YEAR 1993
13 September
General List
No. 91 13 September 1993

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

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

FURTHER REQUESTS FOR THE INDICATION
OF PROVISIONAL MEASURES

ORDER

Present: President Sir Robert JENNINGS; Vice-President ODA; Judges
SCHWEBEL, BEDJAOUI, NI, EVENSEN, TARASSOV, GUILLAUME,
SHAHABUDDEEN, AGUILAR MAWDSLEY, WEERAMANTRY, AJIBOLA,
HERCZEGH; Judges ad hoc LAUTERPACHT, KRECA; Regis-
trar VALENCIA-OSPINA.

In the case concerning application of the Convention on the Prevention
and Punishment of the Crime of Genocide,

The International Court of Justice,

Composed as above,
After deliberation,

Having regard to Articles 35, 36, 41 and 48 of the Statute of the Court,
and to Articles 73, 74, 75 and 76 of the Rules of Court,

Having regard to the Order made by the Court on 8 April 1993,
326 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

Makes the following Order:

1. Whereas by an Application by the Republic of Bosnia and Herzego-
vina (hereinafter called “Bosnia-Herzegovina”) filed in the Registry of the
Court on 20 March 1993, instituting proceedings against the Federal
Republic of Yugoslavia (Serbia and Montenegro) (hereinafter called
“Yugoslavia”), Bosnia- Herzegovina, basing the jurisdiction of the Court
on Article IX of the Convention on the Prevention and Punishment of the
Crime of Genocide, adopted by the General Assembly of the
United Nations on 9 December 1948 (hereinafter called the “Geno-
cide Convention”), recounts a series of events in Bosnia-Herzegovina
from April 1992 up to the date of Application which, in its contention,
amount to acts of genocide within the definition given in the Genocide
Convention; and whereas Bosnia-Herzegovina claims that the acts com-
plained of have been committed by former members of the Yugoslav
People’s Army (YPA) and by Serb military and paramilitary forces under
the direction of, at the behest of, and with assistance from Yugoslavia,
and that Yugoslavia is therefore fully responsible under international
law for their activities ;

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

“(a) that Yugoslavia (Serbia and Montenegro) has breached, and is
continuing to breach, its legal obligations toward the People
and State of Bosnia and Herzegovina under Articles I, II (a),
II (6), IT (c), II (a), IN (a), IIT (6), EI (ec), III (d), WI (e), IV and V of
the Genocide Convention;

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

(c} that Yugoslavia (Serbia and Montenegro) has violated and
continues to violate Articles 1, 2, 3, 4, 5, 6, 7, 8,9, 10, 11. 12, 13,
15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26 and 28 of the Universal
Declaration of Human Rights with respect to the citizens of
Bosnia and Herzegovina;

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

(e) that in its treatment of the citizens of Bosnia and Herzegovina,
Yugoslavia (Serbia and Montenegro) has violated, and is con-
327

APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

(h)

6)

(k)

C)

tinuing to violate, its solemn obligations under Articles 1 (3),
55 and 56 of the United Nations Charter;

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

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

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

— armed attacks against Bosnia and Herzegovina by air and
land;
— aerial trespass into Bosnian airspace;

— efforts by direct and indirect means to coerce and intimidate
the Government of Bosnia and Herzegovina;

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

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

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

that under the circumstances set forth above, Bosnia and Herze-
govina has the sovereign right under United Nations Charter
Article 51 and customary international law to request the imme-
328

APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

diate assistance of any State to come to its defence, including by
military means (weapons, equipment, supplies, troops, etc.);

(m) that Security Council resolution 713 (1991), imposing a wea-

(n)

(0)

(p)

(q)

pons embargo upon the former Yugoslavia, must be construed
in a manner that shall not impair the inherent right of individual
or collective self-defence of Bosnia and Herzegovina under the
terms of United Nations Charter Article 51 and the rules of cus-
tomary international law;

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

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

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

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

— from its systematic practice of so-called ‘ethnic cleansing’
of the citizens and sovereign territory of Bosnia and Herze-
govina;

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

— from the wanton devastation of villages, towns, districts,
cities, and religious institutions in Bosnia and Herzegovina;
329

APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

(r)

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

from continuing the siege of any civilian population centres
in Bosnia and Herzegovina, and especially its capital, Sara-
jevo;

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

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

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

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

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

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

3. Whereas by a request filed in the Registry on 20 March 1993 immedi-
ately after the filing of the Application, Bosnia-Herzegovina, invoking
Article 41 of the Statute of the Court and Articles 73, 74, 75 and 78 of the
Rules of Court, and relying on the facts alleged in the Application,
urgently requested that the Court indicate the following provisional
measures to be in effect while the Court is seised of this case:

“1. That Yugoslavia (Serbia and Montenegro), together with its

agents and surrogates in Bosnia and elsewhere, must immediately
330

APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

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

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

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

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

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

6. That under the current circumstances, any State has the right to
come to the immediate defence of Bosnia and Herzegovina — at its
request ~- including by means of immediately providing weapons,
military equipment and supplies, and armed forces (soldiers, sailors,
and airpeople, etc.)”;

4. Whereas in written observations, submitted to the Court on 1 April
1993, on the first request of Bosnia-Herzegovina for the indication of
provisional measures, the Government of Yugoslavia
331

APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

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

— to instruct the authorities controlled by A. Izetbegovic to comply

strictly with the latest agreement on a cease-fire in the ‘Republic
of Bosnia and Herzegovina’ which went into force on 28 March
1993;

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

to instruct the authorities loyal to A. Izetbegovic to close immedi-
ately and disband all prisons and detention camps in the ‘Repub-
lic of Bosnia and Herzegovina’ in which the Serbs are being
detained because of their ethnic origin and subjected to acts of
torture, thus presenting a real danger for their life and health;

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

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

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

3990,

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

5. Whereas by its Order of 8 April 1993 the Court indicated certain pro-
visional measures which ought to be taken by Yugoslavia, and further
indicated that the Government of Yugoslavia and the Government of
Bosnia-Herzegovina should not take any action and should ensure that
no action is taken which may aggravate or extend the existing dispute over

10
332 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

the prevention or punishment of the crime of genocide, or render it more
difficult of solution;

6. Whereas by a second request filed in the Registry on 27 July 1993,
Bosnia-Herzegovina, invoking Article 41 of the Statute of the Court and
Articles 73, 74 and 75 of the Rules of Court, and relying on the facts
alleged in the Application and in the first request for provisional mea-
sures, and on further facts alleged in the second request, requested
urgently that the Court indicate the following additional provisional
measures to be in effect while the Court is seised of this case:

“1. That Yugoslavia (Serbia and Montenegro) must immediately
cease and desist from providing, directly or indirectly, any type of
support — including training, weapons, arms, ammunition, supplies,
assistance, finances, direction or any other form of support — to any
nation, group, organization, movement, military, militia or paramili-
tary force, irregular armed unit, or individual in Bosnia and Herze-
govina for any reason or purpose whatsoever.

2. That Yugoslavia (Serbia and Montenegro) and all of its public
officials — including and especially the President of Serbia,
Mr. Slobodan Milosevic — must immediately cease and desist from
any and all efforts, plans, plots, schemes, proposals or negotiations to
partition, dismember, annex or incorporate the sovereign territory of
Bosnia and Herzegovina.

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

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

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

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

7. That all Contracting Parties to the Genocide Convention have
the obligation thereunder ‘to prevent’ acts of genocide, and partition
and dismemberment by means of genocide, against the People and
State of Bosnia and Herzegovina.

8. That in order to fulfil its obligations under the Genocide Con-

11
333 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

vention under the current circumstance, the Government of Bosnia
and Herzegovina must have the ability to obtain military weapons,
equipment, and supplies from other Contracting Parties.

9. That in order to fulfil their obligations under the Genocide
Convention under the current circumstances, all Contracting Parties
thereto must have the ability to provide military weapons, equip-
ment, supplies and armed forces (soldiers, sailors, airpeople) to the
Government of Bosnia and Herzegovina at its request.

10. That United Nations Peace-keeping Forces in Bosnia and
Herzegovina (1.e., UNPROFOR) must do all in their power to ensure
the flow of humanitarian relief supplies to the Bosnian People
through the Bosnian city of Tuzla”;

7. Whereas on 27 July 1993, the day on which the second request for the
indication of provisional measures was received in the Registry, the
Deputy-Registrar notified the Government of Yugoslavia of the filing of
the request, and sent a certified copy of the request to it in accordance with
Article 73, paragraph 2, of the Rules of Court;

8. Whereas by a letter dated 28 July 1993 the Agent of Yugoslavia
requested that the Court, when setting the date for a hearing on the second
request for provisional measures, bear in mind the need for Yugoslavia, in
view of the seriousness and extensiveness of that request, to be able
adequately to prepare its response; whereas on 29 July 1993 the
Deputy-Registrar informed the Parties that the President of the Court had
fixed 25 August 1993 as the date for the opening of that hearing; whereas
the Agent of Bosnia-Herzegovina, by letter of 30 July 1993, urged the
President to reconsider the date; and whereas on 31 July 1993 the
Deputy-Registrar informed the Parties that the President of the Court
nevertheless considered it appropriate to maintain the date of 25 August
1993 for the opening of the hearing;

9. Whereas by a letter dated 4 August 1993, the Agent of Bosnia-Herze-
govina stated that he was amending the second request for provisional
measures by submitting a “request for an immediate Order without hear-
ing pursuant to the Second Request” for provisional measures, in reliance
on Article 75, paragraph 1, of the Rules of Court; and whereas a copy of
this communication was forwarded to the Agents of Yugoslavia as soon as
received;

10. Whereas the President of the Court addressed a message, dated
5 August 1993, to both Parties, referring to Article 74, paragraph 4, of the
Rules of Court, which enables him, pending the meeting of the Court, to
“call upon the parties to act in such a way as will enable any order the
Court may make on the request for provisional measures to have its
appropriate effects”, and stating:

12
334 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

“I do now call upon the Parties so to act, and I stress that the provi-
sional measures already indicated in the Order which the Court
made after hearing the Parties, on 8 April 1993, still apply.

Accordingly I call upon the Parties to take renewed note of the
Court’s Order and to take all and any measures that may be within
their power to prevent any commission, continuance, or encourage-
ment of the heinous international crime of genocide”;

11. Whereas written observations by Yugoslavia on the second request
for provisional measures, as modified by the Agent of Bosnia-Herzego-
vina on 4 August 1993, were received in the Registry on 10 August; and
whereas the submissions therein were as follows:

“The Federal Republic of Yugoslavia requests the Court to reject
the Amended Second Request for the reasons stated above and
because it is not based on the Rules of the Court. As well as because it
is contrary to the well-established practice of the Court”;

12. Whereas on 10 August 1993 a request, dated 9 August 1993, for the
indication of provisional measures was filed in the Registry by Yugo-
slavia, whereby Yugoslavia requested the Court to indicate the following
provisional measure:

“The Government of the so-called Republic of Bosnia and Herze-
govina should immediately, in pursuance of its obligation under the
Convention on the Prevention and Punishment of the Crime of
Genocide of 9 December 1948, take all measures within its power to
prevent commission of the crime of genocide against the Serb
ethnic group”;

13. Whereas by a letter of 11 August 1993 in response to the letter of
4 August 1993 from the Agent of Bosnia-Herzegovina (paragraph 9
above), the Registrar, on the President’s instructions, reiterated the view
of the Court, already conveyed to the Agent of Bosnia- Herzegovina in the
context of the previous requests for provisional measures, by a letter of
24 March 1993, that the Court did not consider that the question arose of
the exercise of its powers under Article 75, paragraph 1, of the Rules of
Court

“where, as in the present case specific requests for the indication of
provisional measures . . . have been made by each of the Parties”,

and that, in its view,

“those powers do not in any event extend to indicating measures
without affording both Parties the opportunity of being heard”;

13
335 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

14. Whereas by a series of communications, dated 6 August, 7 August,
8 August, 10 August, 13 August, 22 August, 23 August and 24 August 1993
the Agent of Bosnia-Herzegovina stated that he was further amending or
supplementing the second request for provisional measures, as well as, in
some cases, the Application instituting proceedings; and whereas copies
of these communications were transmitted to the Agents of Yugoslavia as
soon as received;

15. Whereas on 23 August 1993, Yugoslavia presented further written
observations on the second request of Bosnia-Herzegovina for provi-
sional measures, and made the following submissions :

“the Federal Republic of Yugoslavia requests the Court to reject all
requests for indication of provisional measures, contained in all sub-
missions of the Applicant State, because they are outside the jurisdic-
tion of the Court, and for reasons expressed in the Observations of
9 August 1993”;

16. Whereas, since the Court does not include upon the bench a judge
of the nationality of either of the Parties, the Government of Bosnia-
Herzegovina has chosen Mr. Elihu Lauterpacht, Q.C., and the Govern-
ment of Yugoslavia Mr. Milenko Kreéa, to sit as judges ad hocin this case;

17. Whereas oral observations of the Parties on the request of each
Party for provisional measures were presented, at public hearings held,
pursuant to Article 74, paragraph 3, of the Rules of Court, on 25 and
26 August 1993, by the following representatives :

on behalf of Bosnia-Herzegovina:

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

on behalf of Yugoslavia:

Mr. Rodoljub Etinski and
Mr. Djordje Lopicic, Agents ;
Mr. Miodrag Mitic,

Mr. Shabtai Rosenne;

18. Whereas at the public hearings questions were put by judges to
both Parties, and replies were given either orally at the hearings, or subse-
quently in writing;

19. Whereas at the final stage of the hearings the Agent of Bosnia-
Herzegovina confirmed the request for provisional measures set out in
paragraph 6 above; and whereas the Agent of Yugoslavia then presented
the following submissions:

“The Federal Republic of Yugoslavia asks the Court to reject all
provisional measures requested by the Applicant State

— because the Court has no jurisdiction to indicate them;

14
336 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)
— because they are not founded on the new legally relevant facts;

— because of the abuse of rights of the request for provisional
measures;

— because they would cause irreparable prejudice to the rights of
the Federal Republic of Yugoslavia that the so-called Republic of
Bosnia and Herzegovina fulfils its obligations under the Geno-
cide Convention concerning the Serb people in Bosnia and
Herzegovina;

— because they look to the past not to the future;

— because they mean an interim judgment;

— because the clarification of the provisions of the Genocide Con-
vention cannot be the subject-matter of the provisional measures;
and

— because they are ill-founded on Article 75, paragraph 1, of the
Rules of Court.

Wishing to protect its rights by making the so-called Republic of
Bosnia and Herzegovina to fulfil all its obligations concerning the
protection of the Serb ethnic group according to the Genocide Con-
vention,

the Federal Republic of Yugoslavia asks the Court to indicate the
following provisional measure:

The Government of the so-called Republic of Bosnia-Herzegovina
should immediately, in pursuance of its obligation under the Con-
vention on the Prevention and Punishment of the Crime of Genocide
of 9 December 1948, take all measures within its power to prevent
commission of the crime of genocide against the Serb ethnic group”;

*

20. Whereas, during the oral proceedings, the Agent of Bosnia-Herze-
govina presented to the Court a further written communication, dated
25 August 1993, directed to supplementing and amending the second
request for provisional measures and the Application instituting proceed-
ings; whereas at the hearing of 26 August 1993 counsel for Yugoslavia
protested at “the unending flood of sometimes heavy documentation”
from the Agent of Bosnia-Herzegovina, and asked the Court to declare the
communication of 25 August 1993 inadmissible; and whereas on
26 August 1993 the Agent of Bosnia-Herzegovina presented to the Court a
further written communication supplementing the second request;

21. Whereas the submission by the Applicant of a series of documents,
up to the eve of, and even during, the oral proceedings, in the circum-
stances set out in paragraphs 14 and 20 above, is difficult to reconcile with
‘an orderly progress of the procedure before the Court, and with respect

15
337 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

for the principle of equality of the Parties; whereas however Article 74,
paragraph 3, of the Rules of Court provides that “The Court shall receive
and take into account any observations that may be presented to it before
the closure of the oral proceedings”; whereas the Court, taking into
account the urgency and the other circumstances of the matter, considers
it possible to receive the documents in question as being in this case
“observations” under that provision to the extent that they relate to the
requests for the indication of provisional measures;

* x

22. Whereas by its Order of 8 April 1993 the Court gave its decision on
a first request for the indication of provisional measures presented by
Bosnia-Herzegovina, and on a similar request by Yugoslavia, and indi-
cated certain provisional measures; whereas an Order indicating, or
declining to indicate, provisional measures may be revoked or modified,
as stated in Article 76 of the Rules of Court; whereas however according
to that text, the Court cannot revoke or modify an Order unless, “in its
opinion, some change in the situation justifies” doing so, and where a
request for measures has been rejected, any fresh request must, according
to Article 75, paragraph 3, of the Rules of Court, be “based on new facts”;
whereas the same applies when additional provisional measures are
requested; whereas it is therefore for the Court to satisfy itself that the
second request by Bosnia-Herzegovina, and that of Yugoslavia, are based
upon new circumstances such as to justify their being examined; whereas,
taking into account the development of the situation in Bosnia-Herzego-
vina in recent months, this condition should be regarded as satisfied ;

23. Whereas Yugoslavia has disputed “the legitimacy of the Appli-
cant” and contends, as it did at the time of the first request for provisional
measures, that the President and Government of Bosnia-Herzegovina
have no status to conduct proceedings before the Court; whereas the
Court has been seised of the second request for provisional measures
under essentially the same conditions as the first request; whereas there-
fore the objection of Yugoslavia should be rejected for the same reasons
as the Court stated in paragraph 13 of its Order of 8 April 1993;

x *

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

16
338 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

prima facie, to afford a basis on which the jurisdiction of the Court might
be established;

25. Whereas in its Order of 8 April 1993 the Court considered that
Article IX of the Genocide Convention, to which both the Applicant
and the Respondent are parties, appeared to the Court

“to afford a basis on which the jurisdiction of the Court might be
founded to the extent that the subject-matter of the dispute relates to
‘the interpretation, application or fulfilment’ of the Convention,
including disputes ‘relating to the responsibility of a State for geno-
cide or for any of the other acts enumerated in article III’ of the Con-
vention” U.C.J. Reports 1993, p. 16, para. 26);

26. Whereas Bosnia-Herzegovina also submitted to the Court, in sup-
port of its first request, as an additional basis of jurisdiction, a letter dated
8 June 1992 addressed to the President of the Arbitration Commission of
the International Conference for Peace in Yugoslavia; whereas the Court
concluded that it was “unable to regard” that letter “as constituting a
prima facie basis of jurisdiction in the present case”, and considered that
it had to

“proceed therefore on the basis only that it has prima facie jurisdic-
tion, both ratione personae and ratione materiae, under Article IX of
the Genocide Convention” (ibid., p. 18, para. 32);

27. Whereas the Agent of the Applicant has, both in its Application
instituting proceedings and in its second request for the indication of pro-
visional measures, reserved “the right to revise, supplement or amend” the
Application and the request respectively; whereas in reliance on these
reservations, by letters dated 6 August, 10 August and 13 August 1993, he
submitted that the Court’s jurisdiction is grounded not only on the juris-
dictional bases previously put forward but also on certain additional
texts, specified in the letters referred to;

28. Whereas the Applicant cannot, simply by reserving “the right to
revise, supplement or amend” its Application or requests for provisional
measures, confer on itself a right to invoke additional grounds of jurisdic-
tion, not referred to in the Application instituting proceedings; whereas it
will be for the Court, at an appropriate stage of the proceedings, to deter-
mine, if necessary, the validity of such claims; whereas however, as the
Court has recognized, “An additional ground of jurisdiction may . . . be
brought to the Court’s attention” after the filing of the Application,

“and the Court may take it into account provided the Applicant
makes it clear that it intends to proceed upon that basis ... and pro-
vided also that the result is not to transform the dispute brought
before the Court by the application into another dispute which is dif-
ferent in character...” (Military and Paramilitary Activities in and

17
339 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

against Nicaragua (Nicaragua v. United States of America), Jurisdic-
tion and Admissibility, Judgment, I.C.J. Reports 1984, p. 427, para. 80);

whereas the Court thus concludes that, for the purposes of a request for
indication of provisional measures, 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, includ-
ing 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;

29. Whereas the first additional basis of jurisdiction relied on by the
Applicant is the Treaty between the Allied and Associated Powers (the
United States of America, the British Empire, France, Italy and Japan)
and the Kingdom of the Serbs, Croats and Slovenes, on the Protection of
Minorities, signed at Saint-Germain-en-Laye on 10 September 1919
(hereinafter called the “1919 Treaty”), which came into force on 16 July
1920; whereas Chapter I of the 1919 Treaty concerns protection of minori-
ties, and includes an Article 11 whereby that protection was placed under
the guarantee of the League of Nations; whereas that Article provides
(inter alia):

“The Serb-Croat-Slovene State agrees that any Member of the
Council of the League of Nations shall have the right to bring to the
attention of the Council any infraction, or any danger of infraction,
of any of these obligations, and that the Council may thereupon take
such action and give such directions as it may deem proper and effec-
tive in the circumstances.

The Serb-Croat-Slovene State further agrees that any difference of
opinion as to questions of law or fact arising out of these Articles
between the Serb-Croat-Slovene State and any one of the Principal
Allied and Associated Powers or any other Power, a member of the
Council of the League of Nations, shall be held to be a dispute of an
international character under Article 14 of the Covenant of the
League of Nations. The Serb-Croat-Slovene State hereby consents
that any such dispute shali, if the other party thereto demands, be
referred to the Permanent Court of International Justice. The deci-
sion of the Permanent Court shall be final and shall have the same
force and effect as an award under Article 13 of the Covenant”;

whereas Chapter II of the 1919 Treaty, concerning succession to treaties,
commerce, treatment of foreign vessels, and freedom of transit, contains
an Article 16 which provides inter alia:

18
340 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

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

and whereas the Applicant contends that the effect of these two Articles is
that a dispute to which Article 11 of the 1919 Treaty applied could be
referred to the Permanent Court of International Justice by any State
which was a Member of the League of Nations; whereas the Applicant
contends further that the jurisdiction conferred on the Permanent Court
of International Justice by the 1919 Treaty is exercisable by the present
Court by virtue of Article 37 of the Statute of the Court;

30. Whereas the Applicant contends further that Yugoslavia has suc-
ceeded to the rights and obligations of the Kingdom of the Serbs, Croats
and Slovenes under the 1919 Treaty; and whereas, as regards its own right
to invoke the 1919 Treaty, the Applicant contends that, in the light of,
inter alia, General Assembly resolution 24 (I), the United Nations has
assumed the functions and powers of the League of Nations regarding,
inter alia, the 1919 Treaty, and the General Assembly has substituted itself
for the Council of the League in that respect, and concludes that

“Bosnia-Herzegovina, as a member State of the United Nations,
thus is in the position of the States described in Articles 11 and 16 of
the Serb-Croat-Slovene Treaty, namely, the member States of the
League, and thus its dispute with Yugoslavia (Serbia and Monte-
negro) is one over which this Court has jurisdiction” ;

31. Whereas in order to reach a decision on the contentions of Bosnia-
Herzegovina as to the 1919 Treaty as a basis of jurisdiction, 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 ter-
ritory; 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
would appear to be limited to the present territory of Yugoslavia; whereas
Bosnia-Herzegovina has put forward no claim in its Application concern-
ing the treatment of minorities in Yugoslavia, and has requested no provi-
sional measures in that respect; whereas therefore the Court considers
that, in any event, the 1919 Treaty is irrelevant to the present request for
provisional measures;

*

32. Whereas the second of the additional bases of jurisdiction put for-
ward by the Applicant is the letter, dated 8 June 1992, addressed to the

19
341 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 [X 93)

President of the Arbitration Commission of the International Conference
for Peace in Yugoslavia by Mr. Momir Bulatovic, President of the Repub-
lic of Montenegro, and Mr. Slobodan Milosevic, President of the Repub-
lic of Serbia, already referred to in paragraph 26 above; whereas in its
Order of 8 April 1993 the Court, after examining this letter, concluded that
it was unable to regard it “as. constituting a prima facie basis of jurisdic-
tion in the present case” U.C.J. Reports 1993, p. 18, para. 32); whereas the
Applicant has not put forward any new fact which might lead the Court to
reopen the question; whereas the Applicant’s submission on the point
must be rejected;

*

33. Whereas it is claimed by the Applicant that

“the Court’s jurisdiction is also grounded in the Customary and Con-
ventional International Laws of War and International Humanitar-
ian 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, and the Nuremberg Charter, Judgment,
and Principles”;

whereas however the Applicant has not brought to the attention of the
Court any provision in the texts enumerated conferring upon the Court
jurisdiction to deal with a dispute between the Parties concerning matters
to which those texts relate; whereas such jurisdiction is not prima facie
established;

*

34. Whereas, in the context of the first request made by the Applicant
for the indication of provisional measures, the Respondent also, by a com-
munication of 1 April 1993, recommended that such measures, listed in
paragraph 9 of the Court’s Order of 8 April 1993, be indicated; whereas
some of the measures so requested might be directed to the protection of
rights going beyond those covered by the Genocide Convention; and
whereas the question thus arises whether, by requesting such measures,
the Respondent might have agreed that the Court should have a wider
jurisdiction, in accordance with the doctrine known as that of forum
prorogatum; whereas however the provisional measure requested by
Yugoslavia in a subsequent request, dated 9 August 1993 (paragraph 12
above), was directed solely to protection of asserted rights under the
Genocide Convention; whereas moreover the Respondent has constantly
denied that the Court has jurisdiction to entertain the dispute, on the basis
of that Convention or on any other basis; whereas in the circumstances the
communication from Yugoslavia cannot, even prima facie, be interpreted

20
342 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

as “an unequivocal indication” of a “voluntary and indisputable” accept-
ance of the Court’s jurisdiction (cf. Rights of Minorities in Upper Silesia
(Minority Schools), P.C.I.J., Series A, No. 15, p.24; Corfu Channel, Prelimi-
nary Objection, Judgment, I.C.J. Reports 1947-1948, p. 27);

*

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

36. Whereas the Court, having established the existence of one basis on
which its jurisdiction might be founded, namely Article IX of the Geno-
cide Convention, and having been unable to find that other suggested
bases could prima facie be accepted as such, ought not to indicate
measures for the protection of any disputed rights other than those
which might ultimately form the basis of a judgment in the exercise of the
jurisdiction thus prima facie established;

* *

37. Whereas by its Order of 8 April 1993 the Court indicated,

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

A. (1) Unanimously,

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

(2) By 13 votes to |,

The Government of the Federal Republic of Yugoslavia
(Serbia and Montenegro) should in particular ensure that any
military, paramilitary or irregular armed units which may be

21
343

APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

directed or supported by it, as well as any organizations and per-
sons which may be subject to its control, direction or influence, do
not commit any acts of genocide, of conspiracy to commit geno-
cide, of direct and public incitement to commit genocide, or of
complicity in genocide, whether directed against the Muslim
population of Bosnia and Herzegovina or against any other
national, ethnical, racial or religious group;

. Unanimously,

The Government of the Federal Republic of Yugoslavia
(Serbia and Montenegro) and the Government of the Republic of
Bosnia and Herzegovina should not take any action and should
ensure that no action is taken which may aggravate or extend the
existing dispute over the prevention or punishment of the crime
of genocide, or render it more difficult of solution” (.C.J. Reports
1993, p.24, para. 52);

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

22

“( a) the right of the citizens of Bosnia and Herzegovina physically to

survive as a People and as a State;

(b) the rights of the People of Bosnia and Herzegovina to life,

liberty, security, and bodily and mental integrity, as well as
the other basic human rights specified in the 1948 Universal
Declaration of Human Rights;

(c) the right of the People and State of Bosnia and Herzegovina to

be free at all times from genocide and other genocidal acts
perpetrated upon Them by Yugoslavia (Serbia and Monte-
negro), acting together with its agents and surrogates in Bosnia
and elsewhere;

(d) the right of the People and State of Bosnia and Herzegovina to

be free at all times from the use or threat of force directed
against Them by a foreign State acting in conjunction with its
agents and surrogates on Their sovereign territory and else-
where;

(e} theright of Bosnia and Herzegovina to conduct its affairs and to

determine matters within its domestic jurisdiction without
interference or intervention by any foreign State acting directly
or by means of agents and surrogates, or both;

(f) the right of self-determination of the People of Bosnia and

Herzegovina;

(g) the basic right of sovereign existence for the People and State of

Bosnia and Herzegovina;
344 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

(h) the right of the Republic of Bosnia and Herzegovina to con-
tinue to exist as a Member State of the United Nations Organi-
zation itself” ;

39. Whereas however, with respect to the measures requested, the
Courtis, for the reasons explained above, confined to the consideration of
such rights under the Genocide Convention as might form the subject-
matter of a judgment of the Court in the exercise of its jurisdiction under
Article IX of that Convention; whereas the rights listed at (a) to (g) were
asserted in almost identical terms, and their protection was claimed to be
necessary, in the first request of Bosnia-Herzegovina for provisional mea-
sures, filed on 20 March 1993; whereas of the rights listed only that indi-
cated in paragraph (c) is such that it may prima facie to some extent fall
within the rights arising under the Genocide Convention; and whereas it
was therefore in relation to that paragraph and for the protection of rights
under the Convention that the Court indicated provisional measures in its
Order of 8 April 1993; whereas accordingly it is for Bosnia-Herzegovina,
having filed a second request for the indication of provisional measures,
to show that such further measures are necessary for the protection of
those rights;

40. Whereas the list of measures which the Applicant now requests the
Court to indicate, set out in paragraph 6 above, includes certain measures
(and in particular those numbered 5, 7,9 and 10 on that list) which would
be addressed to States or entities not parties to the proceedings; whereas
the Applicant has explained that it is not asking for an Order binding upon
any State other than the Parties, but for a clarification of the Applicant’s
rights “which can be used in the Security Council and the General Assem-
bly and elsewhere” ; whereas the judgment in a particular case by which
disputed rights may be adjudged by the Court to belong to the Applicant
or to the Respondent has, in accordance with Article 59 of the Statute of
the Court, “no binding force except between the parties”; whereas accord-
ingly the Court may, for the preservation of those rights, indicate provi-
sional measures to be taken by the parties, but not by third States or other
entities who would not be bound by the eventual judgment to recognize
and respect those rights; whereas consequently the Court cannot, in the
exercise of its power to indicate provisional measures, indicate by way of
“clarification” that those States or entities should take, or refrain from,
specific action in relation to the acts of genocide which the Applicant
alleges are being committed in Bosnia-Herzegovina;

41. Whereas three of the measures requested by the Applicant (those
numbered 4, 6 and 8 on the list in paragraph 6 above) provide that the
Government of Bosnia-Herzegovina “must have the means” to prevent
the commission of genocide, and to defend its people against genocide,

23
345 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

and “must have the ability to obtain military weapons, equipment, and
supplies” from the other parties to the Genocide Convention; whereas the
Applicant has made it clear in its written and oral observations that it
bases these proposed measures on the Genocide Convention and on the
right of self-defence referred to in Article 51 of the United Nations Char-
ter, and on its claim that because of the arms embargo laid down by the
Security Council by resolution 713 (1991), the Applicant is unable to pro-
tect its people from genocide; whereas a similar claim was before the
Court when it examined the first request for provisional measures, when
some of the requested measures were directed to the question of self-
defence, but were not regarded by the Court as within the scope of the
jurisdiction under Article IX of the Genocide Convention; whereas Ar-
ticle 41 of the Statute empowers the Court to indicate measures “which
ought to be taken to preserve the respective rights of either party”, and for
the reasons given in paragraph 39 above this means measures which ought
to be taken by one or both parties to the case; whereas however it is clear
that the intention of the Applicant in requesting these measures is not that
the Court indicate that the Respondent ought to take certain steps for the
preservation of the Applicant’s rights, but rather that the Court make a
declaration of what those rights are, which “would clarify the legal situa-
tion for the entire international community”, in particular the members of
the United Nations Security Council; whereas accordingly this request
must be regarded as outside the scope of Article 41 of the Statute;

42. Whereas two of the measures requested by the Applicant (those
numbered 2 and 3 on the list in paragraph 6 above) relate to the possibility
of “partition and dismemberment”, annexation or incorporation of the
sovereign territory of Bosnia and Herzegovina (and this question is also
referred to in measures numbers 6 and 7); whereas it appears to the Court,
from the definition of genocide in Article II of the Genocide Convention
(set out, so far as relevant, in paragraph 39 of the Court’s Order of 8 April
1993), that its essential characteristic is the intended destruction of “a
national, ethnical, racial or religious group”, and not the disappearance of
a State as a subject of international law or a change in its constitution or its
territory; whereas, accordingly, the Court is unable to accept, for the pur-
pose of the present request for the indication of provisional measures, that
a “partition and dismemberment”, or annexation of a sovereign State, or
its incorporation into another State, could in itself constitute an act of geno-
cide and thus a matter falling within the jurisdiction of the Court under
Article IX of the Genocide Convention; whereas, on the other hand, in so
far as it is the Applicant’s contention that such “partition and dismember-
ment”, annexation or incorporation will result from genocide, the Court,
in its Order of 8 April 1993 has already indicated that Yugoslavia should

24
346 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

“take all measures within its power to prevent commission of the crime of
genocide”, whatever might be its consequences;

43. Whereas the remaining measure requested by the Applicant (that
numbered 1 in the list in paragraph 6 above), which does not refer to the
Genocide Convention, is almost identical in wording with the second
measure requested in Bosnia-Herzegovina’s first request for provisional
measures (set out in paragraph 3 above), save that it is wider in scope;
whereas in its Order of 8 April 1993 the Court, having found that it ought
not to indicate measures for the protection of disputed rights other than
those which might form the basis of a judgment in the exercise of its juris-
diction under Article IX of the Genocide Convention, indicated measures
which did not specify the measure then requested; whereas the same con-
siderations continue to govern;

* *

44. Whereas the request of Yugoslavia for the indication of the provi-
sional measure set out in paragraph 12 above is based upon the contention
that the facts presented to the Court demonstrate

“that the same degree of urgency, and the same unhappy prospect of
irreparable harm, exist in the case of the Serb ethnic group in Bosnia
and Herzegovina as is being alleged with regard to other groups in
that population” ;

and that accordingly it would be appropriate that a measure be indicated,
addressed to Bosnia-Herzegovina, in the terms set out in paragraph 12
above, parallel to that addressed to Yugoslavia in paragraph 52 A (1) of
the Court’s Order of 8 April 1993;

45. Whereas the measure requested by Yugoslavia would be appropri-
ate to protect rights under the Genocide Convention, which are accord-
ingly within the prima facie jurisdiction of the Court; whereas, on the evi-
dence and information available to it, the Court must also recognize the
existence of some risk to the persons whose protection Yugoslavia seeks;
whereas however the question for the Court is whether the circumstances
are such as to “require” the indication of provisional measures, in accord-
ance with Article 41 of the Statute;

46. Whereas by paragraph 52 A of its Order of 8 April 1993 the Court,
having indicated that Yugoslavia should take all measures within its
power to prevent genocide, indicated what “in particular” were the
appropriate measures to be taken by Yugoslavia in the circumstances of
the case, where the risk was of genocide not on Yugoslav territory but in

25
347 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

Bosnia-Herzegovina; whereas furthermore, as the Court noted in para-
graph 45 of its Order of 8 April 1993, both Yugoslavia and Bosnia-Herze-
govina are under a clear obligation to do all in their power to prevent the
commission of any acts of genocide, and by paragraph 52 B of that Order
the Court indicated that both Bosnia-Herzegovina and Yugoslavia should
not take any action and should ensure that no action is taken which might
aggravate or extend the existing dispute over the prevention or punish-
mnent of the crime of genocide, or render it more difficult of solution;
whereas the-Court does not find that the circumstances, as they now
present themselves to the Court, are such as to require a more specific
indication of measures addressed to Bosnia-Herzegovina so as to recall to
it both its undoubted obligations under the Genocide Convention, and the
need to refrain from action of the kind contemplated by paragraph 52 B
of the Court’s Order of 8 April 1993;

* *

47. Whereas Article 75, paragraph 2, of the Rules of Court recognizes
the power of the Court, when a request for provisional measures has been
made, to indicate measures that are in whole or in part other than those
requested ;

48. 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 and to deter-
mine whether those circumstances require the indication of further provi-
sional measures to be taken by the Parties for the protection of rights
under the Genocide Convention; whereas however the Court 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 attribution to
it of responsibility for those facts, and to submit arguments in respect of
the merits, must remain unaffected by the Court’s decision;

49. Whereas in paragraph 45 of its Order of 8 April 1993 the Court con-
cluded that there was a grave risk of acts of genocide being committed and
that Yugoslavia and Bosnia-Herzegovina, whether or not any such acts in
the past may be legally imputable to them, were under a clear obligation to
do all in their power to prevent the commission of any such acts in the
future; .

50. Whereas Article I of the Genocide Convention, quoted by the
Court in the same paragraph of its Order of 8 April 1993, provides that:

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

26
348 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

whereas all parties to the Convention have thus undertaken “to prevent
and to punish” the crime of genocide;

51. Whereas, as the Court recorded in its Order of 8 April 1993, the
crime of genocide “shocks the conscience of mankind, results in great
losses to humanity ... and is contrary to moral law and to the spirit and
aims of the United Nations”, in the words of General Assembly resolu-
tion 96 (1) of 11 December 1946 on “The Crime of Genocide”;

52. Whereas, since the Order of 8 April 1993 was made, and despite
that Order, and despite many resolutions of the Security Council of the
United Nations, great suffering and loss of life has been sustained by the
population of Bosnia-Herzegovina in circumstances which shock the con-
science of mankind and flagrantly conflict with moral law and the spirit
and aims of the United Nations;

53. Whereas, since the Order of 8 April 1993 was made, the grave risk
which the Court then apprehended of action being taken which may
aggravate or extend the existing dispute over the prevention and punish-
ment of the crime of genocide, or render it more difficult of solution, has
been deepened by the persistence of conflicts on the territory of Bosnia-
Herzegovina and the commission of heinous acts in the course of those
conflicts ;

54. Whereas the Security Council of the United Nations in resolu-
tion 819 (1993) of 16 April 1993 took note of the Court’s Order of 8 April
1993 in which the Court indicated that the Federal Republic of Yugo-
slavia (Serbia and Montenegro) should take all measures within its power
to prevent the commission of the crime of genocide, and whereas the
Security Council in that resolution reaffirmed its condemnation of all
violations of international humanitarian law, in particular the practice
of “ethnic cleansing” ;

55. Whereas the Security Council of the United Nations in resolu-
tion 859 (1993) of 24 August 1993 which, inter alia, affirmed the con-
tinuing membership of Bosnia-Herzegovina in the United Nations,
reaffirmed the principle of the unacceptability of the acquisition of terri-
tory by force and recalled that of individual responsibility for the perpetra-
tion of war crimes and other violations of international humanitarian law;

56. Whereas the Security Council of the United Nations, by resolu-
tions 808 (1993) of 22 February 1993 and 827 (1993) of 25 May 1993, has
established an international tribunal for the prosecution of persons
responsible for serious violations of humanitarian law committed in the
territory of the former Yugoslavia; _

57. Whereas the Court, while taking into account, inter alia, the replies
of the two Parties to a question put to them at the hearings as to what steps
had been taken by them “to ensure compliance with the Court’s Order of
8 April 1993”, is not satisfied that all that might have been done has been

27
349 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

done to prevent commission of the crime of genocide in the territory of
Bosnia-Herzegovina, and to ensure that no action is taken which may
aggravate or extend the existing dispute or render it more difficult of solu-
tion;

58. Whereas, as the Court has previously found,

“When the Court finds that the situation requires that measures of
this kind should be taken, it is incumbent on each party to take the
Court’s indication seriously into account ...” (Military and Paramili-
tary Activities in and against Nicaragua (Nicaragua v. United States of
America), Judgment, I.C.J. Reports 1986, p. 144, para. 289);

whereas this is particularly so in such a situation as now exists in Bosnia-
Herzegovina where no reparation could efface the results of conduct
which the Court may rule to have been contrary to international law;

59. Whereas the present perilous situation demands, not an indica-
tion of provisional measures additional to those indicated by the
Court’s Order of 8 April 1993, set out in paragraph 37 above, but immedi-
ate and effective implementation of those measures;

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

k ox

61. For these reasons,
THE Court,
(1) By 13 votes to 2,

Reaffirms the provisional measure indicated in paragraph 52 A (1) of
the Order made by the Court on 8 April 1993, which should be immedi-
ately and effectively implemented;

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges
Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar
Mawdsley, Weeramantry, Ajibola, Herczegh; Judge ad hoc Lauter-
pacht;

AGAINST: Judge Tarassov; Judge ad hoc Kreta;

(2) By 13 votes to 2,

Reaffirms the provisional measure indicated in paragraph 52 A (2) of
the Order made by the Court on 8 April 1993, which should be immedi-
ately and effectively implemented;

28
350 APPLICATION OF GENOCIDE CONVENTION (ORDER 13 IX 93)

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges
Schwebel, Bedjaoui, Ni, Evensen, Guillaume, Shahabuddeen, Aguilar
Mawdsley, Weeramantry, Ajibola, Herczegh; Judge ad hoc Lauter-
pacht;

AGAINST : Judge Tarassov; Judge ad hoc Kre¢a;

(3) By 14 votes to I,

Reaffirms the provisional measure indicated in paragraph 52 B of the
Order made by the Court on 8 April 1993, which should be immediately
and effectively implemented.

IN FAVOUR: President Sir Robert Jennings; Vice-President Oda; Judges
Schwebel, Bedjaoui, Ni, Evensen, Tarassov, Guillaume, Shahabuddeen,
Aguilar Mawdsley, Weeramantry, Ajibola, Herczegh; Judge ad hoc
Lauterpacht;

AGAINST: Judge ad hoc Kreéa.

Done in English and in French, the English text being authoritative, at
the Peace Palace, The Hague, this thirteenth day of September, one thou-
sand nine hundred and ninety-three, in four copies, one of which will be
placed in the archives of the Court and the others transmitted respectively
to the Government of the Republic of Bosnia and Herzegovina, the Gov-
ernment of the Federal Republic of Yugoslavia (Serbia and Montenegro),
and to the Secretary-General of the United Nations for transmission to the
Security Council.

(Signed) R. Y. JENNINGS,
President.

(Signed) Eduardo VALENCIA-OSPINA,
Registrar.

Vice-President ODA appends a declaration to the Order of the Court.

Judges SHAHABUDDEEN, WEERAMANTRY, AJIBOLA and Judge ad hoc
LAUTERPACHT append separate opinions to the Order of the Court.

Judge Tarassov and Judge ad hoc KRECA append dissenting opinions
to the Order of the Court. |

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

29


489

SEPARATE OPINION OF JUDGE KOOIJMANS

Reason for adding separate opinion to joint declaration — Issue of prima
facie jurisdiction in 1999 Orders on provisional measures — Position of Yugo-
Slavia in period 1992-2000 not substantiated in Judgment — Implication for
other pending cases in which Applicant is party — Consistency with earlier case
law ignored by the Court.

Options open to the Court — Dismissal in limine litis — Inconsistency of
Applicant’s behaviour with regard to jurisdictional grounds — Application no
longer meets requirement of Article 38, paragraph 2, of Rules of Court —
Inherent powers of the Court to strike case from General List — Judicial policy
and sound administration of justice.

1. With full conviction, I have subscribed to the joint declaration of
seven members of the Court. I strongly feel that the Court, in the present
Judgment, has failed to meet the criteria for a sound judicial policy, as
spelled out in paragraph 3 of the joint declaration, by basing itself on the
argument that Serbia and Montenegro has no access to the Court, and
that the Court consequently lacks jurisdiction ratione personae.

2. My present point of view may seem slightly surprising to those who
remember the separate opinion I appended to the Court’s Orders of
2 June 1999 on provisional measures in the same cases. There, I said that
the Court’s reasoning in basing itself on prima facie lack of jurisdiction
ratione temporis was flawed from a logical point of view (Legality of Use
of Force (Yugoslavia v. Canada), Provisional Measures, I.C.J. Reports
1999 (I), p. 307, para. 2).

I was of the view that the decisions taken in 1992 by the competent
organs of the United Nations, with regard to the continued membership
of the Federal Republic of Yugoslavia and the events which had taken
place thereafter, had raised serious doubts as to whether the Federal
Republic of Yugoslavia was capable of accepting the compulsory juris-
diction of the Court as a party to the Statute, and that such doubts as a
matter of logic take precedence over other controversies with regard to
the Court’s jurisdiction. I therefore felt that, in respect of its finding that
it had no prima facie jurisdiction, the Court should have based itself on
the argument that the Applicant had doubtful locus standi, and thus that
there was a lack of jurisdiction ratione personae, rather than on the
ground of lack of jurisdiction ratione temporis. (I agreed with the Court’s
finding that with regard to the Genocide Convention it had no prima

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facie jurisdiction ratione materiae.)

3. The Court took an approach different to the one I had suggested. It
opted for an approach that, in my view, was defensible and legally sound,
even if I preferred another approach from a logical point of view (para-
graph 30 of my opinion). The approach taken by the Court in 1999 has
now been abandoned in favour of the one suggested by me at the time
(see Judgment, para. 45). Far from being elated by this change of
approach, however, I feel concerned for a number of reasons, which are
mentioned in the joint declaration and elaborated upon in the following
paragraphs.

4. First, in 1999, I certainly did not assume that the issue of the
Court’s jurisdiction ratione personae was an open and shut case. I expli-
citly stated: “[nJot for a moment do I contend that the Court already at
the present stage of the proceedings should have taken a definitive stand
on what I called earlier a thorny question” (Legality of Use of Force
( Yugoslavia v. Canada), Provisional Measures, I.C.J. Reports 1999 (I),
p. 312, para. 21). I went on to refer to the dossier on the Federal Repub-
lic of Yugoslavia’s continued membership of the United Nations as being
full of legal complications, and was of the opinion that a thorough analy-
sis and careful evaluation of the Federal Republic of Yugoslavia’s status
was required at a later stage of the proceedings (ibid, p. 312, paras. 21
and 22). I am, however, not persuaded by the Court’s conclusion in the
present Judgment that this analysis and evaluation have convincingly
demonstrated that the events of 2000 have “clarified the thus far amor-
phous legal situation concerning the status of the Federal Republic of
Yugoslavia vis-a-vis the United Nations” (para. 78). Although this find-
ing is undoubtedly correct as far as the situation after the admission of
the Federal Republic of Yugoslavia to the United Nations is concerned
(this admission did indeed bring to an end its sui generis position vis-a-vis
the United Nations), the Judgment does not make clear what the legal
effects of this “amorphous” situation were in the period 1992-2000. The
reader is left with the statement — in itself not uncontroversial — that
the sui generis position of the Federal Republic of Yugoslavia cannot
have amounted to its membership in the Organization (para. 77).

5. The Court’s finding does not seem to be based on a thorough analy-
sis and careful evaluation of, inter alia, the legal effects of the statements
made and positions taken by the Federal Republic of Yugoslavia before
2000, in particular its note of 27 April 1992 to the United Nations, in
which it — admittedly on the presumption of the continuity of the “inter-
national personality of Yugoslavia” — unilaterally committed itself to

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fulfil all the rights conferred on, and obligations assumed by, the Socialist
Federal Republic of Yugoslavia in its international relations, including
its membership in all international organizations and participation in
international treaties ratified or acceded to by Yugoslavia. Have these
commitments become meaningless (at least partially), merely as a result
of its admission to the United Nations as a new Member and the nega-
tion of the presumption of continuity implicit therein; and if so, on what
grounds? Have the “thick clouds which have packed around Yugosla-
via’s membership in the United Nations” (an expression I used in my
1999 opinion, para. 27) been fully dissipated by the Federal Republic of
Yugoslavia’s belated decision to act as a successor State to the Socialist
Federal Republic of Yugoslavia, leaving it in a legal vacuum for the
period 1992-2000 as far as its relationship vis-a-vis the United Nations
and thus its participation in certain treaties — in particular the Genocide
Convention — is concerned? In this respect, the Judgment does not give
the reader much by way of clarification.

6. Second, as regards the potential impact of the 1999 Orders on other
cases before the Court, in particular the 1993 case concerning the Appli-
cation of the Convention on the Prevention and Punishment of the Crime
of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), it
deserves mention that in 1999 both the Applicant and the Respondents
(with the possible exception of Portugal) considered themselves to be
party to the Genocide Convention, which had been found by the Court in
1996 to be the only basis of jurisdiction in the Genocide Convention case.
An impact of the orders on provisional measures in the instant cases on
the Genocide Convention case was therefore not foreseeable and — to say
the least — not very probable.

7. All this changed, however, when in 2000 a new Government came
into power in Belgrade. This Government no longer considered the Fed-
eral Republic of Yugoslavia to be the continuation of the former Socialist
Federal Republic of Yugoslavia, and it decided to apply for membership
of the United Nations as a successor State. Moreover, it was of the view
that the Federal Republic of Yugoslavia, at the time of its inception in
1992, had not been a party to the Genocide Convention, but only became
a party after its accession to the Convention on 6 March 2001.

8. These new perceptions in Belgrade led the Government to submit
an Application to the Court containing a Request for Revision of the
1996 Judgment on preliminary objections in the Genocide Convention

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case on the basis of the “newly discovered facts” mentioned in the
previous paragraph.

The Court gave its decision rejecting the Federal Republic of Yugosla-
via’s Application for Revision in a Judgment dated 3 February 2003, in
which I did not participate. As recalled in paragraph 10 of the joint dec-
laration, the Court found that “resolution 47/1 did not inter alia affect
the Federal Republic of Yugoslavia’s right to appear before the Court...
under the conditions laid down by the Statute”, and that the Federal
Republic of Yugoslavia’s sui generis position vis-a-vis the United Nations
during the period 1992-2000 cannot have been changed retroactively by
its admission to the United Nations in 2000 (Application for Revision of
the Judgment of 11 July 1996 in the Case concerning Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections ( Yugo-
Slavia v. Bosnia and Herzegovina}, I.C.J. Reports 2003, p. 31, paras. 70
and 71).

9. The arguments made by Serbia and Montenegro in the Application
for Revision case and in the present cases are virtually identical, and thus
establish a close link between the Genocide Convention case and the
present cases. Such a link did not exist in previous phases of the proceed-
ings in these cases. It is, therefore, all the more remarkable that, in spite
of the fact that this link is now undeniable, the Court, in its present Judg-
ment, has chosen an approach which is not in line with the approach
taken in 1999 and 2003 and which inevitably has implications for the
Genocide Convention case.

The Court’s statement that it “cannot decline to entertain a case
simply . . . because its judgment may have implications in another case”
(Judgment, para. 39) may be correct in general terms, but must be
deemed to lack the prudence and care which are called for in situations
where a variety of options exists.

10. Third, the decisions taken by the Court in the 1999 Orders on pro-
visional measures and in the 2003 Judgment in the Application for Revi-
sion case and its reasoning therein are part of the Court’s case law. As we
say in the joint declaration: “[cJonsistency is the essence of legal reason-
ing”. In my view, this consistency in reasoning in the Court’s case law is
of paramount importance and dwarfs any misgivings I personally may
have or may have had with regard to each and every argument used, as
long as I do not consider them legally untenable.

11. Although I do not consider the Court’s reasoning in the instant
cases legally untenable, I have, in some respects, serious doubts as to its
correctness; moreover, I find it judicially unsound for the reasons given
in the joint declaration and in the preceding paragraphs. What seemed to
me to be a logical ground for determining lack of prima facie jurisdiction

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does not automatically qualify as a proper ground for the definitive deter-
mination of the issue of jurisdiction.

* * *

12. The views expressed in my separate opinion appended to the 1999
Orders on provisional measures and my perception of them in the light of
today’s circumstances are, however, not the only reason why I deemed it
necessary to add a separate opinion to the joint declaration. I also wish
to indicate which of the options open to the Court and referred to in
paragraph 2 of the joint declaration would, in my view, have been the
better one.

13. These options were three in number. The first is the one chosen by
the Court in its Judgment and is based on its jurisdictional considerations
ratione personae. The second is the approach followed by the Court in
1999, which was founded on a lack of prima facie jurisdiction ratione
temporis and ratione materiae.

The third option would have been dismissal of the case in limine litis.
This option is explicitly rejected in the Judgment, but it would have
been my preference. I therefore find it useful to set out my views; they
are not necessarily shared by other colleagues who have signed the joint
declaration and who might have chosen the second option, which is
also plausible and conceivable for good reasons but with regard to
which the Court has not explicitly expressed itself.

14. The option of dismissal in limine litis logically precedes the other
two and it is therefore with good reason that the Court has dealt with it
first. Similarly, the relevant question has correctly been defined as

“whether in the light of the assertions by the Applicant . . . coupled
with the contentions of each of the respondent States, the Court
should take a decision to dismiss the case in limine litis, without
further entering into the examination of the question whether
the Court has jurisdiction under the circumstances” (Judgment,
para. 29).

15. I do not intend to deal with all the arguments given by the Court
in the relevant part of the Judgment (paras. 27-43), which contain mainly
a reply to the contentions of the Respondents. In a number of respects, I
agree with what is said by the Court; that is true particularly when it
states: “in certain circumstances the Court may of its own motion put an
end to proceedings in a case” (para. 32). I am, however, of the view that
the Court has refrained from exercising this proprio motu competence in
a well-considered way, and regrettably has confined itself first and fore-
most to responding to the arguments of the Parties in order to ultimately

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conclude that “[flor all these reasons, [it] cannot remove the cases...
from the [General] List, or take any decision putting an end to those
cases in limine litis” (para. 43). Though the Court explicitly stated that,
apart from the arguments of the Parties, it would also consider “any
other legal issue which it deems relevant” (para. 26), there is hardly any
evidence that it has done so. In the following, I will try to demonstrate
that such an approach would nevertheless have been the most appro-
priate one.

16. In its final submissions, Serbia and Montenegro asked the Court to
“adjudge and declare on its jurisdiction ratione personae in the present
cases” (CR 2004/23, p. 38). Such a request is highly unusual. Normally,
the applicant asks the Court to find that it has jurisdiction, not whether it
has jurisdiction.

17. The first time that Serbia and Montenegro asked the Court to
decide on its jurisdiction was when it submitted its Written Observations
on the preliminary objections of the Respondents on 20 December 2002.
In its Observations, Serbia and Montenegro summarily stated that, at the
time of the filing of its Applications in 1999, it had neither been a party to
the Statute nor to the Genocide Convention, thereby implying that the
Court could not base its jurisdiction on either Article 36, paragraph 2, of
the Statute or Article IX of the Genocide Convention, which were the
bases of jurisdiction it had invoked in its 1999 Applications.

18. Serbia and Montenegro explicitly stated in a letter to the Court,
dated 28 February 2003, that its Written Observations did not represent
a notice of discontinuance, and reiterated its request to decide on the
Court’s jurisdiction “considering the pleadings formulated in the Written
Observations”. What is striking — although perhaps not surprising in
view of the litigation tactics of Serbia and Montenegro with regard to the
various cases before the Court in which it is a party, as either applicant or
respondent — is that these Observations did not in any way refer to an
alternative basis of jurisdiction replacing the ones presented in 1999 but
no longer maintained by the Applicant.

19. It was only during the oral pleadings that the Applicant raised the
“key question” whether the sui generis position vis-a-vis the United
Nations (mentioned by the Court in the Judgment in the Application for
Revision case of 3 February 2003 and thus three weeks before the sending
of the letter to the Court) could have provided the link between the new
State and international treaties, in particular the Statute of the Court and
the Genocide Convention. In this respect, it is noteworthy that the Agent
for Serbia and Montenegro did not give any suggestion as to how this
could have happened. He merely stated that the question required a
definitive answer and that only a decision of the Court could bring
clarity. “A judgment on jurisdiction based on the elucidation of the
position of the Federal Republic of Yugoslavia between 1992 and 2000
could create an anchor point of orientation.” (CR 2004/14, pp. 26-27,

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paras. 63-64; emphasis added.)

20. Article 38, paragraph 2, of the Rules of Court states, inter alia,
that “[t]he 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 Applications of 29 April 1999 met this requirement by
explicitly mentioning Article 36, paragraph 2, of the Statute and
Article IX of the Genocide Convention (supplemented in the cases
against Belgium and the Netherlands by letter of 12 May 1999, referring
to compromissory clauses in two bilateral conventions of 1930 and
1931 respectively).

In its Written Observations, filed on 20 December 2002, the Applicant
abandoned these jurisdictional grounds as being pertinent at the date the
Applications were filed without replacing them by another basis for the
Court’s jurisdiction (the Observations were silent as regards the two
bilateral treaties).

21. Therefore, Serbia and Montenegro’s Applications, as supplemented
by its Written Observations of 20 December 2002, no longer meet the
first requirement of Article 38, paragraph 2, of the Rules of Court. That
fact in itself, however, does not provide the Court with a ground to
remove the cases from the List. The provision that the Application shall
specify the legal grounds of jurisdiction was included in 1936; in order to
distinguish the requirements of paragraph 2 from those of paragraph 1,
which were prescribed by the Statute itself, the words “as far as possible”
were used (see G. Guyomar, Commentaire du Réglement de la Cour
internationale de Justice, 1983, pp. 234 et seq.). In contrast to the require-
ments of paragraph 1, non-compliance with those of paragraph 2 does
not lead eo ipso to non-admissibility. These requirements “were imposed
on the Parties by the Court simply because they were helpful to it, but
represented a mere recommendation” (ibid., p. 235 {translation by the
Registry ]). Likewise, Rosenne is of the view that “an application will not
be rejected in limine only because such specification [of the jurisdictional
grounds] is omitted” (The Law and Practice of the International Court
1920-1996, 1997, p. 705).

22. Serbia and Montenegro’s contention that only discontinuance in
conformity with Articles 88 and 89 of the Rules of Court may yield a
removal of a case from the List without a judgment on jurisdiction or on
the merits (CR 2004/14, p. 18, para. 29) is, however, not correct. The fact
that the Rules only speak of removing a case from the List by unilateral
action of the applicant (Art. 89) or joint action by the parties (Art. 88)
cannot deprive the Court of its inherent power, as master of its own pro-
cedure, to strike proprio motu a case from the List. This is also recog-
nized by Rosenne who, in this respect, refers to the general powers of the
Court under Articles 36 and 48 of the Statute (op. cit., p. 1478). This

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power is not related to the intention of the parties but to the judicial task
of the Court. This is borne out by the Court’s reasoning in the Orders in
the cases brought by the Federal Republic of Yugoslavia against Spain
and the United States of America, where it said that

“within a system of consensual jurisdiction, to maintain on the
General List a case upon which it appears certain that the Court
will not be able to adjudicate on the merits would most assuredly
not contribute to the sound administration of justice” (Legality of
Use of Force ( Yugoslavia v. Spain), Provisional Measures, I.C.J.
Reports 1999 (II), p. 773, para. 35; emphasis added).

Such power has to be used sparingly and only as an instrument of judicial
policy to safeguard the integrity of the Court’s procedure. The present
cases, however, are without precedent and can truly be called excep-
tional.

23. The Court was, in my opinion, perfectly entitled to issue such an
order in the instant cases on the basis of the fact that the Applicant has
not provided the Court with any plausible information as to the basis of
its jurisdiction. It is not for the Court to ascertain in the preliminary
phase of a case whether it has jurisdiction if the applicant fails to sub-
stantiate in any persuasive manner what the basis for that jurisdiction
could be, and after it has explicitly admitted that the initial grounds it
invoked are no longer valid. Nor is it the Court’s task to provide a party,
which asks for the elucidation of an observation made by the Court in a
judgment in another case to which it was also a party, with “an anchor
point of orientation”, as this would be tantamount to rendering an advi-
sory opinion or giving an interpretation of a judgment in circumstances
and under conditions not warranted by the Statute.

24. It is incompatible with the respect due to the Court for a party not
to provide it with any substantive argument for the speculation that it
might have jurisdiction while explicitly withdrawing the previously
adduced jurisdictional grounds. It is not in conformity with judicial pro-
priety and a sound judicial policy to render a fully reasoned judgment on
jurisdiction when the Applicant bases its request to do so on grounds
which can only be called inadequate. The Applicant can, therefore, be
held to its statement that there are no recognized or generally accepted
grounds of jurisdiction.

25. In the second round of the oral pleadings, the Agent for France
stated that

“the party against whom the application is brought is not required
to prove that there is no basis for jurisdiction, which would require
it — and it would be absurd to ask this of it — as a matter of course
to examine all possible bases” (CR 2004/21, p. 13, para. 22).

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What is true for the Respondent is also true for the Court and even more
so. The fact that the Court has the duty under certain circumstances to
ascertain proprio motu that it has jurisdiction cannot, by a contrario
reasoning, be turned into an obligation to explore grounds for its juris-
diction which have not been invoked by the Applicant. As Rosenne
states:

“There can be no doubt that the choice of a title of jurisdiction is
as much a political act as a decision to institute proceedings, and the
Court is following its usual attitude when faced with political ques-
tions of that character not to substitute itself for the party con-
cerned. It is for this reason that a principle such as curia jura novit
cannot appropriately be applied by the Court proprio motu to sub-
stitute a title of jurisdiction which has not been invoked for
another .. .” (Op. cit., p. 956.)

Neither does the Court have to rule on a title of jurisdiction which has
not been claimed.

26. In view of the fact that the Applicant has failed to demonstrate,
and has not even made an effort to demonstrate, that the Court has juris-
diction, I am of the opinion that the Court should have decided in limine
litis to remove the eight cases from the General List.

(Signed) Pieter H. KOOIMANS.

72