Legality of Use of Force (Serbia and Montenegro v. Netherlands)

INTERNATIONAL COURT O F JUSTICE

YEAR 1999 1999 2 June General List 2 June 1999 No. 110

CASE CONCERNING LEGALITY OF USE OF FORCE

(YUGOSLAVIA v. NETHERLANDS)

REQUEST FOR THE INDICATION O F PROVISIONAL MEASURES

ORDER

Present : Vice- President WEERAMANTRY, Acting President ; President SCHWEBEL; Judges ODA, BEDJAOUI, GUILLAUME, RANJEVA, HERCZEGH, SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN, HIGGINS, PARRA-ARANGUREN, KOOIJMANS; Jztdge ad hoc KRECA; Registrar VALENCIA-OSPINA.

The International Court of Justice,

Composed as above, After deliberation, Having regard to Articles 41 and 48 of the Statute of the Court and to Articles 73 and 74 of the Rules of Court, Having regard to the Application by the Federal Republic of Yugoslavia (hereinafter "Yugoslavia") filed in the Registry of the Court on 29 April 1999, instituting proceedings against the Kingdom of the Netherlands (hereinafter "the Netherlands") "for violation of the obligation not to use force",

Makes the following Order

1 Whereas in that Application Yugoslavia defines the subject of the dispute as follows:

"The subject-matter of the dispute are acts of the Kingdom of the Netherlands by which it has violated its international obligation banning the use of force against another State, the obligation not to intervene in the internal affairs of another State, the obligation not to violate the sovereignty of another State, the obligation to protect the civilian population and civilian objects in wartime, the obligation to protect the environment, the obligation relating to free navigation on international rivers, the obligation regarding fundamental human rights and freedoms, the obligation not to use prohibited weapons, the obligation not to deliberately inflict conditions of life calculated to cause the physical destruction of a national group";

2 Whereas in the said Application Yugoslavia refers, as a basis for the jurisdiction of the Court, to Article 36, paragraph 2, of the Statute of the Court and to 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 the "Genocide Convention");

3 Whereas in its Application Yugoslavia states that the claims submitted by it to the Court are based upon the following facts: "The Government of the Kingdom of the Netherlands, together with the Governments of other Member States of NATO, took part in the acts of use of force against the Federal Republic of Yugoslavia by taking part in bombing targets in the Federal Republic of Yugoslavia. In bombing the Federal Republic of Yugoslavia military and civilian targets were attacked. Great number of people were killed, including a great many civilians. Residential houses came under attack. Numerous dwellings were destroyed. Enormous damage was caused to schools, hospitals, radio and television stations, cultural and health institutions and to places of worship. A large number of bridges, roads and railway lines were destroyed. Attacks on oil refineries and chemical plants have had serious environmental effects on cities, towns and villages in the Federal Republic of Yugoslavia. The use of weapons containing depleted uranium is having far-reaching consequences for human life. The above-mentioned acts are deliberately creating conditions calculated at the physical destruction of an ethnic group, in whole or in part. The Government of the Kingdom of the Netherlands is taking part in the training, arming, financing, equipping and supplying the so-called 'Kosovo Liberation A m y ' " ;

and whereas it further States that the said claims are based on the following legal grounds:

"The above acts of the Netherlands Government represent a gross violation of the obligation not to use force against another State. By financing, arming, training and equipping the so-called 'Kosovo Liberation Army', support is given to terrorist groups and the secessionist movement in the territory of the Federal Republic of Yugoslavia in breach of the obligation not to intervene in the internal affairs of another State. In addition, the provisions of the Geneva Convention of 1949 and of the Additional Protocol No. 1 of 1977 on the protection of civilians and civilian objects in time of war have been violated. The obligation to protect the environment has also been breached. The destruction of bridges on the Danube is in contravention of the provisions of Article 1 of the 1948 Convention on free navigation on the Danube. The provisions of the International Covenant on Civil and Political Rights and of the International Covenant on Economic. Social and Cultural Riehts of 1966 have also " been breached. Furthermore, the obligation contained in the Convention on the Prevention and Punishment of the Crime of Genocide not to impose deliberately on a national group conditions of life calculated to bring about the physical destruction of the group has been breached. Furthermore, the activities in which the Kingdom of the Netherlands is taking part are contrary to Article 53, paragraph 1, of the Charter of the United Nations7':

4 Whereas the claims of Yugoslavia are formulated as follows in the Application :

"The Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare: - by taking part in the bombing of the territory of the Federal Republic of Yugoslavia, the Kingdom of the Netherlands has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State;

- by taking part in the training, arming, financing, equipping and supplying terrorist groups, i.e. the so-called 'Kosovo Liberation Army', the Kingdom of the Netherlands has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State;

by taking part in attacks on civilian targets, the Kingdom of the Netherlands has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects;

- by taking part in destroying or damaging monasteries, monuments of culture, the Kingdom of the Netherlands has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people;

- by taking part in the use of cluster bombs, the Kingdom of the Netherlands has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering;

- by taking part in the bombing of oil refineries and chemical plants, the Kingdom of the Netherlands has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage;

by taking part in the use of weapons containing depleted uranium, the Kingdom of the Netherlands has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage u : , by taking part in killing civilians, destroying enterprises, communications, health and cultural institutions, the Kingdom of the Netherlands has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights;

- by taking part in destroying bridges on international rivers, the Kingdom of the Netherlands has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect freedom of navigation on international rivers;

- by taking part in activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Kingdom of the Netherlands has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part;

- the Kingdom of the Netherlands is responsible for the violation of the above international obligations; - the Kingdom of the Netherlands is obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia; - the Kingdom of the Netherlands is obliged to provide compensation for the damage done to the Federal Republic of Yugoslavia and to its citizens and juridical persons"; and whereas, at the end of its Application, Yugoslavia reserves the right to amend and supplement it;

5 Whereas on 29 April 1999, immediately after filing its Application, Yugoslavia also submitted a request for the indication of provisional measures pursuant to Article 73 of the Rules of Court; and whereas that request was accompanied by a volume of photographic annexes produced as "evidence" ;

6 Whereas, in support of its request for the indication of provisional measures, Yugoslavia contends inter alia that, since the onset of the bombing of its territory, and as a result thereof, about 1,000 civilians, including 19 children. have been killed and more than 4.500 have sustained sGious injuries'; that the lives of three million childien are endangered; that hundreds of thousands of citizens have been exposed to poisonous gases; that about one million citizens are short of water supply; that about 500,000 workers have become jobless; that two million citizens have no means of livelihood and are unable to ensure minimum means of sustenance; and that the road and railway network has suffered extensive destruction; whereas, in its request for the indication of provisional measures, Yugoslavia also lists the targets alleged to have come under attack in the air strikes and describes in detail the damage alleged to have been infiicted upon them (bridges, railway lines and stations, roads and means of transport, airports, industry and trade, refineries and warehouses storing liquid raw materials and chemicals, agriculture, hospitals and health care centres, schools, public buildings and housing facilities, infrastructure, telecommunications, cultural-historical monuments and religious shrines); and whereas Yugoslavia concludes from this that :

"The acts described above caused death, physical and mental harm to the population of the Federal Republic of Yugoslavia; huge devastation; heavy pollution of the environment, so that the Yugoslav population is deliberately imposed conditions of life calculated to bring about physical destruction of the group, in whole or in part" ;

7 Whereas, at the end of its request for the indication of provisional measures, Yugoslavia states that "If the proposed measure were not to be adopted, there will be new losses of human life, further physical and mental harm inflicted on the population of the FR of Yugoslavia, further destruction of civilian targets, heavy environmental pollution and further physical destruction of the people of Yugoslavia";

and whereas, while reserving the right to amend and supplement its request, Yugoslavia requests the Court to indicate the following measure: "The Kingdom of the Netherlands shall cease immediately its acts of use of force and shall refrain from any act of threat or use of force against the Federal Republic of Yugoslavia";

8 Whereas the request for the indication of provisional measures was accompanied by a letter from the Agent of Yugoslavia, addressed to the President and Members of the Court, which read as follows: "1 have the honour to bring to the attention of the Court the latest bombing of the central area of the town of Surdulica on 27 April 1999 at noon resulting in losses of lives of civilians, most of whom were children and women, and to remind of killings of peoples in Kursumlija, Aleksinac and Cuprija, as well as bombing of a refugee convoy and the Radio and Television of Serbia, just to mention

some of the well-known atrocities. Therefore, 1 would like to caution

the Court that there is a highest probability of further civilian and military casualties. Considering the power conferred upon the Court by Article 75, paragraph 1, of the Rules of Court and having in mind the greatest urgency caused by the circumstances described in the Requests for provisional measure of protection 1 kindly ask the Court to decide on the submitted Requests proprio motu or to fix a date for a hearing at earliest possible time";

9 Whereas on 29 April 1999, the day on which the Application and the request for the indication of provisional measures were filed in the Registry, the Registrar sent to the Netherlands Government signed copies of the Application and of the request, in accordance with Article 38, paragraph 4, and Article 73, paragraph 2, of the Rules of Court; and whereas he also sent to that Government copies of the documents accompanying the Application and the request for the indication of provisional measures ;

10 Whereas on 29 April 1999 the Registrar informed the Parties that the Court had decided, pursuant to Article 74, paragraph 3, of the Rules of Court, to hold hearings on 10 and 1 1 May 1999, where they would be able to present their observations on the request for the indication of provisional measures;

11 Whereas, pending the notification under Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court, by transmittal of the printed bilingual text of the Application to the Members of the United Nations and other States entitled to appear before the Court, the Registrar on 29 April 1999 informed those States of the filing of the Application and of its subject-matter, and of the filing of the request for the indication of provisional measures;

12 Whereas, since the Court includes upon the bench no judge of

Yugoslav nationality, the Yugoslav Government has availed itself of the provisions of Article 31 of the Statute of the Court to choose Mr. Milenko Kreéa to sit as judge ad hoc in the case; and whereas no objection to that choice was raised within the time-limit fixed for the purpose pursuant to Article 35, paragraph 3, of the Rules of Court;

13 Whereas, at the public hearings held between 10 and 12 May 1999, oral observations on the request for the indication of provisional measures were presented by the Parties: On behalf' of Yugoslavia. Mr. Rodoljub Etinski, Agent, Mr. Ian Brownlie, Mr. Paul J. 1. M. de Waart, Mr. Eric Suy, Mr. Miodrag Mitié, Mr. Olivier Corten; On behalf'of the Netherlands: Mr. Johan Lammers, Agent,

14 Whereas, by letter of 12 May 1999, the Agent of Yugoslavia submitted to the Court a "Supplement to the Application" of his Government, which read as follows: "Using the right reserved by the Application of the Federal Republic of Yugoslavia against the Kingdom of the Netherlands for violation of the obligation not to use force, filed to the International Court of Justice on 29 April 1999, 1 supplement its part related to the grounds of jurisdiction of the Court, which should now read as follows : 'The Government of the Federal Republic of Yugoslavia invokes Article 36, paragraph 2, of the Statute of the International Court of Justice as well as Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide and Article 4 of the Treaty of Judicial Settlement, Arbitration and Conciliation between the Kingdom of Yugoslavia and the Netherlands, signed at The Hague on 1 1 March 193 1 and in force since 2 April 1932' " ; whereas, at the start of the afternoon session of the hearing of 12 May 1999, the Vice-President of the Court, acting President, made the following statement : "In the light of the new bases of jurisdiction invoked today by Yugoslavia . . . the Court wishes to inform the Parties that it will give its consideration to any observations of the Netherlands . . . in regard to the admissibility of the additional grounds invoked";

and whereas at the said afternoon session of 12 May 1999 the Netherlands made various observations on the admissibility of the Yugoslav

"Supplement to the Application", and on the new basis of jurisdiction invoked therein ;

15 Whereas, in this phase of the proceedings, the Parties presented the following submissions: On behaif of Yugoslavia; "[Tlhe Court [is asked] to indicate the following provisional measure : [Tlhe Kingdom of the Netherlands . . . shall cease immediately the acts of use of force and shall refrain from any act of threat or use of force against the Federal Republic of Yugoslavia";

On behaif of the Netherlands: "The Netherlands [requests] the Court [to] deny the request for the indication of a provisional measure made by the Federal Republic of Y ugoslavia" ;

16 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 al1 parts of Yugoslavia;

17 Whereas the Court is profoundly concerned with the use of force in Yugoslavia; whereas under the present circumstances such use raises very serious issues of international law;

18 Whereas the Court is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and the Statute of the Court;

19 Whereas the Court deems it necessary to emphasize that al1 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;

20 Whereas the Court, under its Statute, does not automatically have jurisdiction over legal disputes between States parties to that Statute or between other States to whom access to the Court has been granted; whereas the Court has repeatedly stated "that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction" (East Timor (Portugal v. Australia), Judgment, I. C. J. Reports 1995, p. 101, para. 26); and whereas the Court can therefore exercise jurisdiction only between States parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned;

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

22 Whereas in its Application Yugoslavia claims, in the first place, to found the jurisdiction of the Court upon Article 36, paragraph 2, of the Statute; whereas each of the two Parties has made a declaration recognizing the compulsory jurisdiction of the Court pursuant to that provision; and whereas Yugoslavia's declaration was deposited with the Secretary-General of the United Nations on 26 April 1999, and that of the Netherlands on 1 August 1956;

23 Whereas Yugoslavia's declaration is formulated as follows:

"1 hereby declare that the Government of the Federal Republic of Yugoslavia recognizes, in accordance with Article 36, paragraph 2, of the Statute of the International Court of Justice, as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity, the jurisdiction of the said Court in al1 disputes arising or which may arise after the signature of the present Declaration, with regard to the situations or facts subsequent to this signature, except in cases where the parties have agreed or shall agree to have recourse to another procedure or to another method of pacific settlement. The present Declaration does not apply to disputes relating to questions which, under international law, fall exclusively within the jurisdiction of the Federal Republic of Yugoslavia, as well as to territorial disputes. The aforesaid obligation is accepted until such time as notice may be given to terminate the acceptance"; and whereas the declaration of the Netherlands reads as follows:

"1 hereby declare that the Government of the Kingdom of the

Netherlands recognizes, in accordance with Article 36, paragraph 2, of the Statute of the International Court of Justice, with effect from 6 August 1956, as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, that is on condition of reciprocity, the jurisdiction of the said Court in al1 disputes arising or which may arise after 5 August 1921, with the exception of disputes in respect of which the parties, excluding the jurisdiction of the International Court of Justice, may have agreed to have recourse to some other method of pacific settlement. The aforesaid obligation is accepted for a period of five years and will be renewed by tacit agreement for additional periods of five years, unless notice is given, not less than six months before the expiry of any such period, that the Government of the Kingdom of the Netherlands does not wish to renew it. The acceptance of the jurisdiction of the Court founded on the declaration of 5 August 1946 is terminated with effect from 6 August 1956".

24 Whereas the Netherlands contends that the Court lacks jurisdiction in the case on the basis of Article 36, paragraph 2, of the Statute of the Court; whereas it points out that Yugoslavia's declaration limits ratione trmporis its acceptance of the compulsory jurisdiction of the Court to "disputes arising or which may arise after the signature of the present Declaration, with regard to the situations or facts subsequent to this signature"; and whereas the Netherlands maintains that the dispute between Yugoslavia and the Netherlands clearly arose before the date of signature of the Yugoslav declaration and therefore falls outside the scope of the jurisdiction of the Court;

25 Whereas, according to Yugoslavia, "[tlhe issue before the Court is that of interpreting a unilateral declaration of acceptance of its jurisdiction, and thus of ascertaining the meaning of the declaration on the basis of the intention of its author"; whereas Yugoslavia contends that the text of its declaration "allows al1 disputes effectively arising after 25 April 1999 to be taken into account"; whereas, referring to bombing attacks carried out by NATO member States on 28 April, 1 May, 7 May and 8 May 1999, Yugoslavia States that, "[iln each of these cases, which are only examples, [it] denounced the flagrant violations of international law of which it considered itself to have been the victim", and the "NATO member States denied having violated any obligation under international law"; whereas Yugoslavia asserts that "each of these events therefore gave rise to 'a disagreement on a point of law or fact', a disagreement . . . the terms of which depend in each case on the specific features of the attack" in question; whereas Yugoslavia accordingly concludes that, since these events constitute "instantaneous wrongful acts", there exist "a number of separate disputes which have arisen" between the Parties "since 25 April relating to events subsequent to that date"; and whereas Yugoslavia argues from this that "[tlhere is no reason to exclude prima facie the Court's jurisdiction over disputes having effectively arisen after 25 April, as provided in the text of the declaration"; and whereas Yugoslavia adds that to exclude such disputes from the jurisdiction of the Court "would run entirely counter to the manifest and clear intention of Yugoslavia" to entrust the Court with the resolution of those disputes;

26 Whereas Yugoslavia has accepted the Court's jurisdiction ratione temporis in respect only, on the one hand, of disputes arising or which may arise after the signature of its declaration and, on the other hand, of those concerning situations or facts subsequent to that signature (cf. Right of Passage over Indian Territory, Merits, Judgment, I. C. J. Reports 1960, p. 34); whereas, in order to determine whether the Court has jurisdiction in the case, it is sufficient to decide whether, in terms of the text of the declaration, the dispute brought before the Court "arose" before or after 25 April 1999, the date on which the declaration was signed;

27 Whereas Yugoslavia's Application is entitled "Application of the Federal Republic of Yugoslavia against the Kingdom of the Netherlands for Violation of the Obligation Not to Use Force"; whereas in the Application the "subject of the dispute" (emphasis added) is described in general terms (see paragraph 1 above); but whereas it can be seen both from the statement of "facts upon which the claim is based" and from the manner in which the "claims" themselves are formulated (see paragraphs 3 and 4 above) that the Application is directed, in essence, against the "bombing of the territory of the Federal Republic of Yugoslavia", to which the Court is asked to put an end;

28 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 uliu, of the discussions at the Security Council meetings of 24 and 26 March 1999 (SlPV.3988 and 3989), that a "legal

dispute" (East Timor (Portugal v. Australiu), I. 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;

29 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 proceedings, 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;

30 Whereas, as the Court recalled in its Judgment of 4 December 1998 in the case concerning Fisherie Jurisdiction (Spain v. Cunuda),

"It is for each State, in formulating its declaration, to decide upon the limits it places upon its acceptance of the jurisdiction of the Court: '[tlhis jurisdiction only exists within the limits within which it has been accepted' (Phosphates irz Morocco, Judgment, 1938, P.C. I. J., Series AIB, No. 74, p. 23)" (1. C. J. Reports 1998, p. 453, para. 44);

and whereas, as the Permanent Court held in its Judgment of 14 June

1938 in the Phosphates in Morocco case (Preliminary Objections), "it is recognized that, as a consequence of the condition of reciprocity stipulated in paragraph 2 of Article 36 of the Statute of the Court", any limitation ratione temporis attached by one of the Parties to its declaration of acceptance of the Court's jurisdiction "holds good as between the Parties" (Phosphates in Morocco, Judgment, 1938, P. C. 1. J., Srries AIB, No. 74, p. 10); whereas, moreover, as the present Court noted in its Judgment of 11 June 1988 in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), "[als early as 1952, it held in the case concerning Anglo-Iranian Oil Co. that, when declarations are made on condition of reciprocity, 'jurisdiction is conferred on the Court only to the extent to which the two Declarations coincide in conferring it' (I. C. J. Reports 1952, p. 103)" (1. C. J. Reports 1998, p. 298, para. 43); and whereas it follows from the foregoing that the declarations made by the Parties under Article 36, paragraph 2, of the Statute do not constitute a basis on which the jurisdiction of the Court could prima facie be founded in this case;

3 1. Whereas, referring to United Nations Security Council resolutions 757 (1992) of 30 May 1992 and 777 (1992) of 19 September 1992, and to United Nations General Assembly resolutions 4711 of 22 September 1992 and 48/88 of 20 December 1993, the Netherlands also contends that the Court has no jurisdiction in the case, even prima facie, on the basis of Article 36, paragraph 2, of the Statute, because Yugoslavia is neither a Member of the United Nations nor a party to the Statute of the Court, and could not, therefore, validly make the declaration provided for in Article 36, paragraph 2; and whereas the Netherlands further contends that Yugoslavia has not satisfied the conditions laid out in Security Council resolution 9 of 15 October 1946 for acceptance of the Court's jurisdiction by a State that is not a party to the Statute;

32 Whereas Yugoslavia, referring to the position of the Secretariat, as expressed in a letter dated 29 September 1992 from the Legal Counsel of the Organization (doc. A/471485), and to the latter's subsequent practice, contends for its part that General Assembly resolution 4711 "[neither] terminate[d] nor suspend[ed] Yugoslavia's membership in the Organization", and that the said resolution did not take away from Yugoslavia "[its] right to participate in the work of organs other than Assembly bodies" ;

33 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;

34 Whereas in its Application Yugoslavia claims, in the second place, to found the jurisdiction of the Court on Article IX of the Genocide Convention, which provides :

"Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute" ; and whereas in its Application Yugoslavia states that the subject of the dispute concerns inter aliu "acts of the Kingdom of the Netherlands by which it has violated its international obligation . . . not to deliberately inflict conditions of life calculated to cause the physical destruction of a national group"; whereas, in describing the facts on which the Application is based, Yugoslavia states: "The above-mentioned acts are deliberately creating conditions calculated at the physical destruction of an ethnie group, in whole or in part"; whereas, in its statement of the legal grounds on which the Application is based, Yugoslavia contends that "the obligation . . . not to impose deliberately on a national group conditions of life calculated to bring about the physical destruction of the group has been breached"; and whereas one of the claims on the merits set out in the Application is formulated as follows:

"by taking part in activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Kingdom of the Netherlands has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part";

35 Whereas Yugoslavia contends moreover that the sustained and intensive bombing of the whole of its territory, including the most heavily populated areas, constitutes "a serious violation of Article II of the Genocide Convention"; whereas it argues that "the pollution of soil, air and water, destroying the economy of the country, contaminating the environment with depleted uranium, inflicts conditions of life on the Yugoslav nation calculated to bring about its physical destruction"; whereas it asserts that it is the Yugoslav nation as a whole and as such that is targeted; and whereas it stresses that the use of certain weapons whose long-term hazards to health and the environment are already known, and the destruction of the largest part of the country's power supply system, with catastrophic consequences of which the Respondent must be aware, "impl[y] the intent to destroy, in whole or in part, the Yugoslav national group as such;

36 Whereas for its part the Netherlands contends that the Court could have prima facie jurisdiction on the basis of Article IX of the Convention, if the party invoking such jurisdiction were in a position to produce "at least some evidence that a question relating to the interpretation, application or fulfilment of the 1948 Genocide Convention has arisen"; whereas according to the Netherlands, Yugoslavia's Application fails to refer to the conditions that form the core of the crime of genocide under the Convention, namely the "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such", and whereas, in the view of the Netherlands, the Court accordingly lacks jurisdiction ratione materiae on the basis of Article IX;

37 Whereas it is not disputed that both Yugoslavia and the Netherlands are parties to the Genocide Convention without reservation; and whereas Article IX of the Convention accordingly appears to constitute a basis on which the jurisdiction of the Court might be founded to the extent that the subject-matter of the dispute relates to "the interpretation, application or fulfilment" of the Convention, including disputes "relating to the responsibility of a state for genocide or for any of the other acts enumerated in article III" of the said Convention;

38 Whereas, in order to determine, even prima facie, whether a dispute within the meaning of Article IX of the Genocide Convention exists, the Court cannot limit itself to noting that one of the Parties maintains that the Convention applies, while the other denies it; and whereas in the present case the Court must ascertain whether the breaches of the Convention alleged by Yugoslavia are capable of falling within the provisions of that instrument and whether, as a consequence, the dispute is one which the Court has jurisdiction ratione materiae to entertain pursuant to Article IX (cf. Oil Platforms (Islamic Republic of Iran v. United States of America), Preliminary Objection, Judgment, 1. C. J. Reports 1996 ( I I ) , p. 810, para. 16);

39 Whereas the definition of genocide set out in Article II of the Genocide Convention reads as follows: "In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

( a ) Killing members of the group; ( b ) Causing serious bodily or mental harm to members of the group ; ( c ) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; ( e ) Forcibly transferring children of the group to another group";

40 Whereas it appears to the Court, from this definition, "that [the] essential characteristic [of genocide] is the intended destruction of 'a national, ethnical, racial or religious group'" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provi-

sional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 345, para. 42); whereas the threat or use of force against a State cannot in itself constitute an act of genocide within the meaning of Article II of the Genocide Convention; and whereas, in the opinion of the Court, it does not appear at the present stage of the proceedings that the bombings which form the subject of the Yugoslav Application "indeed entail the element of intent, towards a group as such, required by the provision quoted above" (Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I. C. J. Reports 1996 ( I ) , p. 240, para. 26) ;

41 Whereas the Court is therefore not in a position to find, at this stage of the proceedings, that the acts imputed by Yugoslavia to the Respondent are capable of coming within the provisions of the Genocide Convention; and whereas Article IX of the Convention, invoked by Yugoslavia, cannot accordingly constitute a basis on which the jurisdiction of the Court could prima facie be founded in this case;

42 Whereas after it had filed its Application Yugoslavia further invoked, as basis for the Court's jurisdiction in this case, Article 4 of the Treaty of Judicial Settlement, Arbitration and Conciliation between the Netherlands and the Kingdom of Yugoslavia, signed in The Hague on 1 1 March 1931 ; whereas Yugoslavia's "Supplement to the Application", in which it invoked this new basis of jurisdiction, was presented to the Court in the second round of oral argument (see paragraph 14 above); whereas Yugoslavia gave no explanation of its reasons for filing this document at this stage of the proceedings; and whereas Yugoslavia argues that, although the procedure provided for in Article 4 of the 1931 Treaty has not been strictly followed, "the Court, like its predecessor, the Permanent Court of International Justice, has always had recourse to the principle according to which it should not penalize a defect in a procedural act which the Applicant could easily remedy";

43 Whereas the Netherlands objects to the late presentation by Yugoslavia of this basis of jurisdiction; whereas the Netherlands argues that the Treaty of Judicial Settlement, Arbitration and Conciliation of 11 March 1931 is no longer in force between the Netherlands and Yugoslavia; whereas the Netherlands observes that it is not a party to the 1978 Vienna Convention on the Succession of States in respect of Treaties and that, in contrast with a number of other bilateral treaties concluded with the former Socialist Federal Republic of Yugoslavia, no provisional mutual agreement has been reached on the continued validity of the 1931 Treaty; whereas the Netherlands further argues that Yugoslavia has not complied with the procedural requirements of Article 4 of the Treaty, in particular the period of notice of one month;

44 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 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 deciding 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;

45 Whereas the Court has found above that it had no prima facie jurisdiction to entertain Yugoslavia's Application, either on the basis of Article 36, paragraph 2, of the Statute or of Article IX of the Genocide Convention; and whereas it has taken the view that it cannot, a t this stage of the proceedings, take account of the additional basis of jurisdiction invoked by Yugoslavia; and whereas it follows that the Court cannot indicate any provisional measure whatsoever in order to protect the rights claimed by Yugoslavia in its Application;

46 Whereas, however, the findings reached by the Court in the present proceedings in no way prejudge 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 whereas they leave unaffected the right of the Governments of Yugoslavia and the Netherlands to submit arguments in respect of those questions;

47 Whereas there is a fundamental distinction between the question of the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties;

48 Whereas, whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law, including humanitarian law; whereas any disputes relating to the legality of such acts are required to be resolved

by peaceful means, the choice of which, pursuant to Article 33 of the

Charter, is left to the parties;

49 Whereas in this context the parties should take care not to aggravate or extend the dispute;

50 Whereas, when such a dispute gives rise to a threat to the peace, breach of the peace or act of aggression, the Security Council has special

responsibilities under Chapter VI1 of the Charter;

5 1. For these reasons,

(1) By eleven votes to four, Rejects the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia on 29 April 1999; I N FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Fleischhauer, Koroma, Higgins, Parra-Aranguren, Kooijmans:

AGAINST: Vice-President Weeramantry, Acting President ; Judges Shi, Vereshchetin; Judge ad hoc Kreka; (2) By fourteen votes t o one, Reserves the subsequent procedure for further decision. I N FAVOUR : Vice-President Weeramantry, Acting President ; President Schwebel; Judges Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans; Judge ad hoc Kreka;

AGAINST: Judge Oda.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this second day of June, one thousand nine hundred and ninety-nine, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Federal Republic of Yugoslavia and the Government of the Kingdom of the Netherlands, respectively.

( S i g n e d ) Christopher G . WEERAMANTRY, Vice-President. ( S i g n e d ) Eduardo VALENCIA-OSPINA, Registrar.

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

Judges ODA, HIGGINS, PARRA-ARANGUREN and KOOIJMANS append separate opinions to the Order of the Court.

Vice-President WEERAMANTRY, Acting President, Judges SHI and VERESHCHETIN, and Judge ad hoc KRECA append dissenting opinions to the Order of the Court.

(Initialled) C . G . W . (Initialled) E.V.O.