Accessed 19 May 1999
held on Tuesday 11 May 1999,
in the case concerning
Legality of Use of Force
Request for the indication of provisional measures
[Note: A listing of the names of the legal respresentatives and the judges has been omitted]
CR/99/35 - Public sitting held on
Wednesday 12 May 1999, at the Peace Palace,
The VICE-PRESIDENT, acting President: Please be seated. The Court meets now to hear the submissions of the United States in the case concerning Legality of Use of Force (Yugoslavia v. United States), and I have much pleasure in giving the floor now to the distinguished Agent of the United States, Mr. David Andrews.
Mr. ANDREWS: Thank you, Mr. President.
1.1. Mr. President, distinguished Members of the Court, it is once again an honour to appear before you on behalf of the United States. With me today are: Michael Matheson, Principal Deputy Legal Adviser to the Department of State; John Crook, Assistant Legal Adviser for United Nations Affairs; Allen Weiner, Legal Counsellor of the United States Embassy in the Netherlands; and David Koplow, Deputy General Counsel of the Department of Defense. I would like to also note the presence of our Ambassador to the Netherlands, Mrs. Cynthia Schneider.
1.2. You have heard extensively from the representatives of the other respondent States about the facts surrounding the events in Kosovo. We will not attempt to repeat all of those facts, though they are obviously important to a proper understanding of the situation in our case as well, and as such will presumably be taken into account by the Court. Therefore, we use our limited time today to inform the Court of our views concerning the key aspects of the case against the United States.
1.3. To begin with, like other respondent States, we believe that it is important that we not allow the consideration of the charges brought by the Applicant to divert our attention from the atrocities committed by forces under the Applicant's control against the people of Kosovo. The international community has already taken due notice of those actions and has reacted with outrage and dismay.
1.4. For example, on 30 March United Nations Secretary-General Annan stated that he was "profoundly outraged by reports of a vicious and systematic campaign of ethnic cleansing conducted by Serbian military and paramilitary forces in the province of Kosovo" (Press Release SG/SM/6942, 30 March 1999). On 31 March, Chief Prosecutor Arbour of the International Criminal Tribunal for the former Yugoslavia sent letters to Serbian officials, reminding them of their obligations under international law and warning them of their personal accountability for crimes under the Tribunal's jurisdiction (ICTY Press Release No. CC/PIU/391-E, 31 March 1999). On 2 April, the United Nations High Commission for Refugees Ogata stated
1.5. The vast scale and severity of these actions has been well documented by international authorities. According to information published by the United Nations High Commissioner for Refugees, more than 700,000 refugees have fled Kosovo since March 1998 (UNHCR Kosovo Crisis Update, 8 May 1999). Many thousands more are displaced inside Kosovo (Briefing by United Nations High Commissioner for Refugees to the Security Council, 5 May 1999). Those who have fled Kosovo have provided human rights officials with consistent accounts of mass killings and attacks by Serbian forces including the use of artillery to empty villages (UNHCR Kosovo Crisis Update, 8 May 1999). Others report having been forced at gun point to leave their homes (UNHCR Press Release, 2 April 1999). As the United Nations High Commissioner for Refugees told the Security Council on 5 May, refugees report that "civilians are being subjected to violence, forced eviction from their homes, deportations and arbitrary detention". In her words, the root cause of the Kosovo refugee crisis "is the systematic and intolerable violence being waged against an entire population" (Briefing by United Nations High Commissioner for Refugees to the Security Council, 5 May 1999).
1.6. Having exhausted all peaceful possibilities for resolving the crisis through painstaking negotiation efforts, a decision was taken by the North Atlantic Council to authorize the use of force to cause the Federal Republic of Yugoslavia to halt and reverse its unlawful actions in Kosovo. NATO operations are targeted at military objectives vital to the continuation of the Serb campaign in Kosovo. Every precaution is being taken to minimize civilian casualties. Where errors have occurred, as in the case of the tragic incident involving the Embassy of China, for which the United States has expressed deep regret, NATO has acknowledged the error and taken steps to avoid a recurrence.
1.7. As you have already heard, the actions of the Members of the NATO Alliance find their justification in a number of factors. These include:
1.8. Under these circumstances, a failure by NATO to act immediately would have been to the irreparable prejudice of the people of Kosovo. The Members of NATO refused to stand idly by to watch yet another campaign of ethnic cleansing unfold in the heart of Europe.
1.9. Now, the Federal Republic of Yugoslavia has brought these actions against various NATO countries. The suit against the United States is based on the Genocide Convention. Mr. President, in light of the Applicant's actions in Kosovo, such a suit is a feat of hypocrisy and cynicism of Orwellian proportions. Needless to say, the United States totally rejects the characterizations by the Applicant of United States and NATO actions that are contained in its complaint and request for provisional measures.
1.10. Today, we will explain to the Court why provisional measures cannot and should not be issued by the Court against the United States. First, Mr. Crook will review the jurisprudence of the Court which shows that provisional measures cannot be indicated unless the Court first finds that there is at least a prima facie basis for its jurisdiction. He will explain that there is no such prima facie basis here, where the Applicant has relied for jurisdiction on the Genocide Convention. The United States ratified that Convention subject to a clear reservation denying the possibility of a suit in this Court against the United States without its explicit consent in each case. The United States has not consented to such suit, and without such consent the Court is manifestly without jurisdiction. Further, Mr. Cook will explain that, although the complaint brought by the Applicant formally invokes the Genocide Convention, in fact it makes no substantiated allegation against the United States that is within the terms of that Convention and thus provides no basis in any event for a finding of prima facie jurisdiction.
1.11. Mr. Matheson will then address why, in our view, it would be wholly inappropriate for the Court to grant provisional measures, even if the Court had prima facie jurisdiction. He will explain that, even if there were prima facie jurisdiction, the indication of provisional measures remains a matter of discretion for the Court, and should be granted only where appropriate and required by the circumstances. He will show that such measures may be indicated only to protect rights that are guaranteed by the instrument under which the Court is alleged to have jurisdiction, but that the measures requested by the Applicant are in fact unrelated to the Genocide Convention. He will show why there is no basis whatsoever for concern that the United States or other NATO forces have committed or would commit genocide in the Federal Republic of Yugoslavia. Finally, he will argue that such measures are inappropriate because the Applicant is not entitled to seek relief from the Court in view of the Applicant's unlawful conduct in Kosovo.
1.12. I will then return to summarize the United States argument and to present the submission of the United States. Mr. President, with that introduction, I now ask the Court to invite Mr. Crook to set forth the views of the United States concerning the jurisdiction of the Court.
The VICE-PRESIDENT, acting President: Thank you, Mr. Andrews. Mr. Crook, please.
I. Introduction and overview
2.1. Thank you. Mr. President, Members of the Court, it is again an honour for me to appear before the Court. Because of the shortage of time, I will try to limit my presentation to the essentials. I will not read out the citations supporting my arguments, but they are contained in the text that we have supplied to the Registry.
2.2. My central point, Mr. President, is that the Court does not have jurisdiction over the claims asserted by the Federal Republic of Yugoslavia against the United States. The Court therefore cannot indicate provisional measures against the United States as the Applicant seeks. The foundation of the Court's jurisdiction under the Statute is the consent of the parties. It is fundamental that the Court cannot exercise jurisdiction in a case involving a State without the consent of that State. "[I]n the absence of a clear agreement between the Parties in this respect, the Court has no jurisdiction to go into . . . the merits of the present case." (Ambatielos, Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 39; see also N. Singh, The Role and Record of the International Court of Justice 179 (1989) (recalling the "overriding principle of consent on which both the Court and the law it administers are based").)
2.3. But the United States has not consented to this case. When it became a party to the Genocide Convention, the United States made a clear reservation to Article IX, requiring the specific consent of the United States to the Court's jurisdiction in each case under the Convention involving the United States. The Socialist Federal Republic of Yugoslavia did not object to that reservation. It is binding between the parties here.
2.4. The United States has not given the consent required by its reservation. It will not do so. There is therefore no jurisdiction under the Convention, and the Court lacks the power to indicate the provisional measures indicated by the Applicant. I will discuss aspects of this reservation later in my presentation.
2.5. Apparently recognizing the weakness of the jurisdictional case under the Convention, the Applicant also invokes Article 38, paragraph 5, of the Court's Rules in an effort to improvise jurisdiction. As the Court well knows Article 38, paragraph 5, permits an applicant State to lodge an Application in anticipation of future consent to jurisdiction by the respondent State. Until such consent is given, no action can be taken in the case, it cannot be entered in the General List. The United States has not consented to jurisdiction under Article 38, paragraph 5, and will not do so. Accordingly, there is absolutely no jurisdiction, prima facie or otherwise, for the Court to do anything other than to find that it lacks jurisdiction regarding the matters raised in the Application.
II. The law applicable to provisional measures
2.6. I will now examine some of the requirements for an indication of provisional measures. As the Court's teaching makes clear, provisional measures are an exceptional remedy, and are not to be indicated in every case. The Court has emphasized this in many cases: Aegean Sea Continental Shelf, Interim Protection, Order of 11 September 1976, I.C.J. Reports 1996, p. 11, para. 32; and Passage through the Great Belt (Finland v. Denmark), Provisional Measures, Order of 29 July 1991, I.C.J. Reports 1991, p. 12. (Separate opinion of Judge Shahabuddeen.)
2.7. A necessary precondition for any indication of provisional measures is that the Court must have prima facie jurisdiction. As the Court explained in its Provisional Measures Orders Cameroon v. Nigeria case, the Court need not "finally satisfy itself" with regard to jurisdiction on the merits before issuing provisional measures. However, the Court "may not indicate them unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which jurisdiction of the Court might be founded". See, e.g., case concerning Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, p. 21, para. 30; Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 11, para. 14.
2.8. What is required to establish prima facie jurisdiction? The requirement for prima facie jurisdiction means that the Court must take full account of the plain meaning and effect of all legal instruments bearing upon that jurisdiction. Here, the Court must consider both the text of Article IX of the Genocide Convention and the clear terms of the United States reservation to that Article. It is not enough for the Applicant simply to cite Article IX and to ignore the United States reservation. The Court knows of the United States reservation and must give it full weight at this stage of the proceedings in considering whether it has prima facie jurisdiction. (See Hersch Lauterpacht, The Development of International Law by the International Court 112 (1958).)
Article IX and the United States reservation
2.9. I will not quote here Article IX, which is now familiar to the Court. The United States ratification of the Genocide Convention in December 1998 was subject to several reservations and understandings. (Multilateral Treaties Deposited with the Secretary-General. Status as at 31 December 1997, Doc. ST/LEG/SER.E/16, p. 88.) The first United States reservation establishes that the Court does not have jurisdiction over this case. It states:
2.10. Counsel for the Applicant did not mention this reservation in their presentations yesterday, but it is central to the question of jurisdiction in the case against the United States. The United States reservation is clear and unambiguous. The United States has not given the specific consent it requires. It will not do so. Thus, there is no jurisdiction, prima facie or otherwise.
2.11. The Socialist Federal Republic of Yugoslavia did not object to the reservation during the 12 months after notice of it was circulated by the Secretary-General or subsequently. Under the familiar principles of Article 20, paragraph 5, of the Vienna Convention on the Law of Treaties, the Applicant is bound by the reservation. As Article 20, paragraph 5, provides:
Now, as there is no relevant objection to the United States reservation by the Socialist Federal Republic of Yugoslavia, it must now be in the words of the Vienna Convention "considered to have been accepted" as between the Parties to this case.
2.12. But even had there been an objection, it would have had one or two consequences, depending on its terms. In either situation, Article IX would not be in force between the parties and this Court would not have jurisdiction. Under Article 21, paragraph 3, of the Vienna Convention on the Law of Treaties, an objection to the United States reservation to Article IX might prevent the entry into force of the Convention between the parties, or it might prevent the entry into force of Article IX between them. (See Vienna Convention on the Law of Treaties, Article 21 (3); I. Sinclair, The Vienna Convention on the Law of Treaties, p. 62 (2nd ed., 1984).) But in either case, Article IX of the Genocide Convention would not provide a basis for the Court's jurisdiction in this case.
Reservations and the Genocide Convention
2.13. I will now briefly mention three points involving the validity and effect of the United States reservation. The Applicant did not raise these yesterday, but they warrant mention in case they arise during the Court's deliberations.
2.14. The first point is that reservations to the Genocide Convention are permitted. The Court has made this clear. As the Court well knows, the modern law on reservations to treaties largely follows from the Court's important 1951 Advisory Opinion on this very Convention (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 15). It may be useful to briefly recall the background of the Court's Advisory Opinion, because it confirms that reservations to the Genocide Convention are allowed. Several of the early ratifications of the Genocide Convention were made subject to reservations. Indeed, there were at least eight reservations involving Article IX when the General Assembly requested the advisory opinion. Some States objected to some or all of the reservations made to the Convention and argued that their objections prevented the Genocide Convention from entering into force at all for the reserving State. Other States disagreed.
2.15. The General Assembly sought this Court's advice. The Court responded with an important Opinion that is the cornerstone of the modern law of reservations as reflected in the Vienna Convention on the Law of Treaties. The Court laid down, and the Vienna Convention adopted, a régime generally permitting reservations to multilateral treaties like the Genocide Convention, so as to encourage the widest possible adherence to them.
2.16. The Court emphasized that barring States with reservations from becoming parties to the Genocide Convention "would not only restrict the scope of its application, but would detract from the authority of the moral and humanitarian principles which are its basis" (idem, p. 24). Certainly in the case of the United States, the possibility of making reservations was crucial to the ability of the United States to become a party to this Convention.
2.17. My second point is that the United States reservation to Article IX is not contrary to the Convention's object and purpose. The possibility of recourse to this Court for settlement of disputes is not central to the overall system of the Convention, which has as its essential elements the definition of the crime of genocide and the creation of obligations to try and punish those responsible for genocide.
2.18. Fourteen other States have concluded that such reservations are proper and have made some form of reservation to Article IX. Several other States previously had such reservations but have now withdrawn them. The States now reserving to Article IX of the Convention come from all parts of the world - Albania, Algeria, Argentina, Bahrain, China, India, Malaysia, Morocco, the Philippines, Rwanda, Spain, the United States, Venezuela, Viet Nam and Yemen.
2.19. In addition, in preparation for this hearing, we made a quick study of the frequency of reservations to provisions conferring jurisdiction on this Court contained in other multilateral treaties. Our study is by no means complete, but we identified such reservations, past or current, on the part of 46 States, including Algeria, Brazil, China, Hungary, Madagascar, Russia, the United States and Venezuela. Thus, there is a wide body of State practice showing that such reservations are not contrary to the treaty's object and purpose.
2.20. My third point, Mr. President, involves the consequences should a party conclude that any reservation to a treaty is contrary to the treaty's object and purpose. As I noted previously, when States file reservations, other parties are free to make their own appraisal of them. They can object if they choose. Parties who object will either have no treaty relations with the reserving party (if the objecting State believes that the reservation is incompatible with the object and purpose of the treaty), or it will have treaty relations with the reserving party, except for the provisions covered by the reservation.
2.21. That was the course available to the Socialist Federal Republic of Yugoslavia. It could have objected to the United States reservation. It chose not to do so. Some other States did make timely objections to the United States reservation to Article IX. Thus, the Netherlands objected to it and stated that, in consequence, the Netherlands did not enjoy treaty relations with the United States under the Genocide Convention (Multilateral Treaties Deposited with the Secretary-General. Status as at 31 December 1997, Doc. ST/LEG/SER.E/16, p. 90). The United States disagrees with the Netherlands characterization of the United States reservation. However, the ensuing lack of a treaty relationship between the United States and the Netherlands under the Convention is the result prescribed by international law if States do not accept a reservation. It is the rule recognized by Yugoslavia, one of the first countries to ratify the Vienna Convention on the Law of Treaties. Since the Socialist Federal Republic of Yugoslavia did not object to the United States reservation, the Applicant here is bound by it.
2.22. Mr. President, I will conclude my discussion of the United States reservation by stressing one point. The United States has not consented to the jurisdiction of the Court in this case. Even if one were somehow to regard the United States reservation to the Convention as invalid, the legal outcome regarding the Court's jurisdiction would be the same. The United States has not consented to the Court's jurisdiction in this case, and absent such consent, the Court has no jurisdiction to proceed further.
2.23. There are other strong arguments against prima facie jurisdiction under the Genocide Convention, but in the interests of time I will simply record our agreements with the arguments of the other Respondents showing why there is not prima facie jurisdiction under the Convention. I particularly endorse the arguments made powerfully by many other Respondents here regarding the lack of a legally sufficient nexus or connection between the charges against the United States contained in the Application and its supposed jurisdictional basis under the Genocide Convention. The requirement for such a connection is clearly established in the Court's jurisprudence and is not met here.
2.24. I have shown here that there can be no prima facie jurisdiction in the case against the United States, because the clear requirements of the United States reservation to the Genocide Convention have not been met. There is absolutely no basis upon which this Court can set the United States reservation aside and find United States consent to jurisdiction here where the United States manifestly has not consented.
2.25. Mr. President, Members of the Court, I thank you for your courtesy and attention. I now invite you to call upon Mr. Matheson to show why, even if there were prima facie jurisdiction, the Court should not indicate provisional measures.
The VICE-PRESIDENT, acting President: Thank you, Mr. Crook. Mr. Matheson, you have the floor.
3.1. Mr. President, distinguished Members of the Court, it is again my honour and privilege to appear before you on behalf of the United States.
3.2. Mr. Crook has explained that provisional measures cannot be indicated in this case, because there is not even prima facie jurisdiction over the Applicant's complaint. I will now explain our contention that, even if there were prima facie jurisdiction, the indication of provisional measures, as requested by the Applicant, would be wholly inappropriate.
Standards for the exercise of the Court's discretion
3.3. To begin with, even if the Court were to conclude in a particular case that there were prima facie jurisdiction, the indication of provisional measures remains a matter of discretion for the Court, and should only occur where appropriate and required by the circumstances. As Judge Bedjaoui stated in the 1971 Montreal Convention case:
As the Court said in the Aegean Sea Continental Shelf case, the indication of provisional measures is an "exceptional power", and thus should only be used if "the circumstances of the case disclose the risk of an irreparable prejudice to rights in issue in the proceedings". (Aegean Sea Continental Shelf, Interim Protection, Order of 11 September 1976, I.C.J. Reports 1976, p. 11, para. 32). Accordingly, provisional measures should be indicated only where the Applicant has presented an adequate factual basis and compelling reasons for the Court to exercise its discretion to grant such measures.
Provisional measures may not extend beyond the Genocide Convention
3.4. It follows from what the Court has said that provisional measures may be indicated only to protect rights that are guaranteed by the instrument under which the Court is alleged to have jurisdiction. Thus, for example, in the Application of the Genocide Convention case, the Court held that "having established the existence of one basis on which its jurisdiction might be founded, namely Article IX of the Genocide Convention" the Court consequently "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" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 342, para. 36.)
3.5. This is precisely the situation with respect to the Applicant's case against the United States. If there were prima facie jurisdiction in this case - and we do not believe there is - it could only be under the Genocide Convention. Therefore, the Court should not consider provisional measures that protect rights not guaranteed by the Genocide Convention. In other words, it should not consider measures that do not deal directly with acts of genocide.
The measures proposed are unrelated to genocide
3.6. In fact, the measures requested by the Applicant are unrelated to rights protected by the Genocide Convention. The request characterized itself as a request for measures against the United States "for violation of the obligation not to use force" - not for violation of the Genocide Convention. The request refers at length to United States obligations not to resort to the threat or use of force, not to intervene in internal affairs, not to violate the sovereignty of another State, not to attack civilians and civilian objects, not to use prohibited weapons, and so on. The only specific measure requested is that: "The United States of America 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."
3.7. This is plainly not a request for measures to protect rights under the Genocide Convention, the alleged basis for jurisdiction. Rather, it is a request for measures to protect rights under a series of other international instruments and obligations that are not within the Court's jurisdiction in the case against the United States, including the United Nations Charter, the 1949 Geneva Conventions, and the customary law of armed conflict. As such, the request cannot be granted.
3.8. In fact, the Applicant's request for provisional measures is remarkably similar in character to a number of the requests which the Federal Republic of Yugoslavia vigorously protested in the Application of the Genocide Convention case, and which were denied by the Court as falling outside the rights protected by the Genocide Convention. Specifically, the Court held that measures directed against the threat and use of force, violation of sovereignty, violation of the rules of armed conflict, and interference in internal affairs had to be rejected because
Counsel for the Federal Republic of Yugoslavia in that case argued that "the measures proposed . . . go beyond any of the provisions of the Convention" and therefore were not appropriate for an indication of provisional measures (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Verbatim Record, 2 April 1993, 3 p.m., p. 33.) This is equally true in the present case.
3.9. The fact is that the Applicant has made no credible allegation that United States or other NATO forces have committed acts of genocide or are at all likely to do so. It has presented no coherent basis for attributing to any of the respondent States the intent required by the Genocide Convention - namely, "to destroy, in whole or in part, a national, ethnical, racial or religious group, as such". United States and NATO actions are conventional military operations that do not, by any stretch of imagination, have as their objective the destruction of any such group, in whole or in part.
3.10. The only material in the Applicant's request which appears to deal in any way with the substance of the Genocide Convention is found in a few brief sentences which referred to the supposed infliction on unidentified groups of conditions of life calculated to bring about their physical destruction. There is no substantiation whatsoever of the suggestion that NATO operations are somehow directed at destroying a national or ethnic group.
3.11. In yesterday's oral presentation, the representatives of the Federal Republic of Yugoslavia asserted that NATO operations were directed at imposing harmful conditions of life on the Yugoslav nation as a whole through attacks on its electric power system and the use of ammunition containing depleted uranium. The suggestion was made that such operations imply intent to destroy a national group. With respect, if this was really intended as an explanation of the charge of genocide, it is simply preposterous. Proportionate attacks on infrastructure targets, such as electric power systems, that contribute to the military effort are common aspects of modern warfare and can in no way be treated as genocide. Similarly, munitions containing depleted uranium are standard weapons in the United States inventory for use against armoured vehicles, and their use in no way implies genocidal intent.
3.12. In fact, NATO forces are taking every precaution in their current operations to minimize civilian casualties. The fact that civilians in a zone of conflict may be at risk of collateral injury, or may suffer difficult conditions as a result of the conflict, cannot possibly amount to a valid charge of genocide. The fact that military operations are directed against another country cannot possibly amount to a valid charge under the Genocide Convention of acting with intent to destroy that nation as a group. If there could be any doubt on this point, it was dispelled by a formal Understanding made upon ratification of the Convention by the United States - and not objected to by the Socialist Federal Republic of Yugoslavia or any other State - that "acts in the course of armed conflicts committed without the specific intent required by Article II are not sufficient to constitute genocide as defined by this Convention".
There is no factual basis for provisional measures
3.13. Further, the Court should not indicate provisional measures in the absence of an appropriate factual basis for doing so. In the current case, no credible evidence has been presented that would support any concern that the United States or other NATO countries have committed or would commit genocide in the Federal Republic of Yugoslavia.
3.14. In previous cases where the Court has granted provisional measures, the party requesting such measures has presented real evidence in support its allegation that its rights under the instrument in question were in fact genuinely threatened. For example, in the Military and Paramilitary Activities case, the Court noted that the Applicant in that case had presented a number of items of evidence of various types in support of its charges. (Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10 May 1984, I.C.J. Reports 1984, para. 29.) In the Application of the Genocide Convention case, the evidence presented by the Applicant in support of its requests for provisional measures was so voluminous that the respondent protested that it was an "unending flood" of documentation. (Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 336, para. 20.)
3.15. In the present case, by contrast, the Applicant has presented only a series of photographs of the alleged results of conventional military operations, along with a cryptic recitation of alleged incidents of civilian casualties. It has presented nothing to establish that these actions were taken with the intent required by the Genocide Convention. While it is not the function of the Court at this preliminary phase of the case to reach any final judgments about the factual merits of the allegations of the Applicant, surely the Court cannot and should not grant provisional measures based simply on such unsupported innuendo. The Applicant has formally invoked the Convention, but this alone cannot be sufficient for the Court to employ its exceptional power to indicate provisional measures.
3.16. In the Application of Genocide Convention case, the Court granted provisional measures only when "from the information available to the Court" it was "satisfied that there is a grave risk"of further genocidal action (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, para. 48). In the present case, such a judgment might be made about the actions of the Federal Republic of Yugoslavia in Kosovo, but certainly not about the actions of NATO forces in response.
Provisional measures are inappropriate because of Applicant's conduct
3.17. Finally, the indication of provisional measures against the United States and other Respondents would be inappropriate because the Applicant does not come to the Court with clean hands. Having committed a campaign of extensive ethnic cleansing and other atrocities in Kosovo, the Applicant has now come to the Court asking for protection against the consequences of those unlawful acts.
3.18. The principle that a party in litigation may not attempt to reap advantages from its own wrong is well established in international law (see B. Cheng, General Principles of Law as Applied by International Courts and Tribunals, pp. 149-158 (reprint ed. 1987)). This principle is often expressed in the Latin phrase nullus commodum capere de sua injuria propria ("no one can be allowed to take advantage of his own wrong"). Numerous arbitral decisions reflect the unwillingness of international tribunals to grant relief to parties whose own conduct with respect to the underlying dispute was wrongful (see, for example, Tippets, Abbett, McCarthy, Stratton v. TAMS-AFFA, 6 Iran-U.S.C.R.T., pp. 219, 228 (1994); Diversion of Water from the River Meuse, P.C.I.J., Series A/B, No. 70, p. 77). Since the Court must assess all relevant circumstances in considering whether to grant provisional measures, it should take due account of this principle as well.
3.19. For the Court to grant provisional measures against the respondent States for their actions to curb the campaign of atrocities committed by the Applicant would reward the wrongdoer for its misdeeds and shield it from their consequences. Any provisional measures that did not focus on the conduct of the Applicant would be a serious injustice which could have deplorable consequences for the people of Kosovo.
3.20. For these compelling reasons, we strongly believe that the indication of provisional measures, as requested by the Applicant, would be wholly inappropriate in this case, even if the Court were to conclude that it had prima facie jurisdiction - which we believe is clearly not the case.
3.21. Mr. President, I thank the Court for its attention. I now suggest that it invite the United States Agent, Mr. Andrews, to conclude the presentation of the United States. Thank you.
The VICE-PRESIDENT, acting President: Thank you, Mr. Matheson. I now invite Mr. Andrews to make the concluding presentation of the United States.
Mr. ANDREWS: Thank you, Mr. President.
4.1. Mr. President, Members of the Court, we have shown why the Court cannot and should not grant provisional measures against the United States, as requested by the Applicant. We have shown that the Court does not have even prima facie jurisdiction, that the United States has clearly never consented to the jurisdiction of the Court under the Genocide Convention, and that this precludes the indication of provisional measures against the United States. We have shown that, even if the Court had prima facie jurisdiction, the granting of provisional measures against the United States - particularly measures of the character requested by the Applicant - would be wholly inappropriate in the circumstances of this case.
4.2. The case against the United States is, of course, but one of ten suits brought against various NATO member States. In this broader context, we encourage the Court to bear in mind that, as we have shown, the indication of provisional measures is a matter of discretion to be considered in light of all relevant factors. In light of this, it is essential that the Court consider carefully the possible effects of its decision on the current international efforts to resolve the Kosovo crisis and to protect the people of Kosovo.
4.3. No doubt the Court is aware of the important meeting just concluded in Germany among the Foreign Ministers of the so-called G-8 Group, which is comprised of Russia, Japan and six NATO countries. On 6 May, that Group adopted a series of general principles on the solution to the Kosovo crisis, which includes: the immediate end of violence and repression in Kosovo; the withdrawal from Kosovo of Yugoslav military, police and paramilitary forces; the deployment in Kosovo of effective international civil and security presences, endorsed and adopted by the United Nations; the establishment of an interim administration for Kosovo to be decided by the Security Council; the safe and free return of all refugees; and a political process towards the establishment of an interim political framework in Kosovo.
4.4. In this complex and evolving situation, we suggest that the indication of provisional measures against any of the respondent States could be misperceived and have unintended consequences. Clearly, there is no equivalence between, on the one hand, the actions of the NATO forces and, on the other hand, the atrocities committed by the forces under the control of the Federal Republic of Yugoslavia - which made NATO's response necessary. These NATO operations are the only current constraint on the actions of forces under the control of the Federal Republic of Yugoslavia in Kosovo. Provisional measures directed against NATO States could be misinterpreted as restricting or casting doubt on the propriety of those operations. The result of this could be to increase, and not to constrain, the risk of acts of genocide, and to make more difficult a diplomatic solution to the crisis. Surely the Court would not wish to take action that could have this result.
4.5. We therefore urge the Court to exercise the discretion it clearly has at this phase of the proceedings, to refrain from the introduction of provisional measures against the respondent States in the various cases before you today.
4.6. Mr. President, this concludes the presentation of the United States. Our submission is as follows: That the Court reject the request of the Federal Republic of Yugoslavia for the indication of provisional measures.
4.7. We thank the Court for its attention to our arguments, and for the honour of appearing before it.
The VICE-PRESIDENT, acting President: Thank you very much, Mr. Andrews. That concludes the first round of hearings in the case between Yugoslavia and the United States. The Court will meet tomorrow morning at 10.00 a.m., when Yugoslavia will have one hour to make its submissions in reply. The Court will then adjourn until 3.00 p.m. to give time to the Respondents to consider their own responses to the Yugoslav submissions. Each of the Parties will have 15 minutes for its response, and we hope to finish the second round by tomorrow evening. If Members of the Court have any questions, they will be indicated tomorrow.
The Court now stands adjourned until 10 o'clock tomorrow morning.
The Court rose at 5.15 p.m.