1999

ICJ

Case concerning legality of use of force Provisional measures Yugoslavia v Belgium Yugoslavia also claimed in similar cases against the (Canada, France, Germany, Italy, Netherlands, Portugal, Spain, UK, US)

24 March 1999 NATO’s bombing began on Kosovo and ended on 10 June 1999 25 April 1999 Yugoslavia declared under 36(2) optional clause: to recognised as compulsory ipso facto… the jurisdiction of the court in all disputes arising or which may arise after the present declaration, with regard to the situations or facts subsequent to this signature..’ Yugoslavia based jurisdiction on its own declaration and on the Belgian one, 17 June 1958, and on IX Genocide convention; Yugoslavia and Belgium are parties to the Convention 29 April 1999 Yugoslavia filed application asking provisional measures (to stop bombing) 2 June 1999 Court decided: The ICJ had no prima facie basis of jurisdiction, so provisional measures were denied. However the case is still pending, in fact, 8/10 cases the ICJ said that having regard of dispute settlement provision of Genocide convention 1948 (US party but made a reservation to art IX requiring previous consent of the US before going to ICJ; Spain made a whole reservation to IX), there was not a manifest lack of jurisdiction (20) One fundamental principle of the ICJ Statute is that it cannot decide a dispute without the consent of those states to its jurisdiction, East Timor 1995

(21) On a request for provisional measures the ICJ need not finally satisfy itself that it has jurisdiction on the merits, yet it ought not indicate them unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which ICJ jurisdiction might be established (28) The court has no doubt in the light of the SC meetings 24, 26 March that a ‘legal dispute’ arouse between Yugoslavia and the respondent, as it did also with other NATO members, well before 25 April 1999 (29) The fact that the bombing continued after 25 April and that the dispute has persisted since that date, in no way alter the date on which the dispute arose, and each individual attack could not have given rise to a separate subsequent dispute. (30) 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, Phosphates 1938. 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 Anglo Iranian Oil 1952. From the declarations made by the parties it cannot be followed a basis on which jurisdiction to the court could prima facie be founded. (35) It is not disputed that both Yugoslavia and Belgium are parties to the convention without reservation, and art IX constitutes a basis on which jurisdiction can be found to the extent that the subject matter of the dispute relates to the ‘interpretation, application, or fulfilment’ of the convention including disputes relating to ‘responsibility of state for genocide’ (40) The essential characteristic of genocide is the intended destruction of a national, ethnical, racial, or religious group, ICJ 1993. Threat or use of force against a state cannot itself constitute an act of genocide. It does not appear that bombing entailed the element of intent, required by the provision. (46) The findings reached by the court in no way prejudice the question of the jurisdiction of the court to deal with the merits of the case or any question relation to the admissibility of the application