Accessed 20 May 1999
Translation from the French of the presentation of Mr Suy before the International Court of Justice, Legality Use of Force, Yugoslavia v. NATO countries.
Mr SUY: Mr. President, Members of the Court.
The honour which falls to me once again to appear before the Court is overshadowed by the dramatic circumstances which have led the Federal Republic of Yugoslavia to submit the present Application. The premeditated attack from the air against the residence of the Head of State with a view to his physical destruction and the bombing of the Embassy of the People's Republic of China are now added to so many other instances of acts of violence committed in violation of fundamental rules of international law. They show that the Republic of Yugoslavia is entitled to request, on an emergency basis, action to protect ITS rights in this case. An order of the International Court of Justice indicating provisional measures could thus constitute a specific contribution to the current diplomatic initiatives.
1. Perhaps you will allow me to point out briefly similarities between the dramatic circumstances we see today, i.e., the use of force, and events of 60 years ago. At the time, Nazi Germany threatened to invade Czechoslovakia if that country refused to grant a large degree of autonomy to the Sudetenland, a part of Czechoslovakia a great majority of whose inhabitants were German-speaking and of German origin. To avoid armed intervention, the Prague Government, and the United Kingdom and French Governments too, gave way and signed the Munich Agreements. President Milosevic, wishing to avoid a second Munich, has therefore refused to sign the Rambouillet Agreements. He was told in very clear terms by Richard Holbrook, negotiating on the other side, that in these circumstances Yugoslavia would be bombed. Only a few months after the signing of the Munich Agreements, Hitler demanded of the Czech Government that the Sudetenland be incorporated into Germany. He told the Czech authorities that if they refused, Prague would be bombed. Sixty years later, the situation is thus worse. What we have is not a threat of force, but actual bombing designed to compel Yugoslavia to yield to a diktat. This regression of international law, a reversion to gunboat diplomacy, in violation of the constitutional order established by the international community after the defeat of Nazi Germany, does not augur well for the future of the rule of law in international relations as we move towards the 21st century.
2. Mr. President, I should like now to look at various aspects of provisional measures. The Court has dealt, I believe, with 21 cases of requests for such measures. Consequently, in view of the ample case-law established on the subject, I will consider briefly the following aspects: the prima facie jurisdiction of the Court, the safeguarding of parties' rights, and the urgency of the situation.
1. Prima facie jurisdiction
Each time that the Court is called upon to exercise its power to indicate provisional measures it must assure itself - and this is one of the "circumstances" referred to in its Statute - that it is prima facie competent to do so. A clear distinction has always been drawn between the jurisdiction of the Court as regards a decision on the merits (which is not at issue at this stage of the proceedings) and its jurisdiction for purposes of the indication of provisional measures.
Perhaps I might cite the Court's classic statement in its Order of 29 July 1991 in the case concerning Passage through the Great Belt:
Yugoslavia, Mr. President, relies first on its own declaration of acceptance of the jurisdiction of the Court, made on 25 April 1999 pursuant to Article 36, paragraph 2, of the Statute of the Court, and on the declarations made by the United Kingdom of Great Britain and Northern Ireland (1969), the Netherlands (1956), Belgium (1958), Canada (1994), Portugal (1955) and Spain (1990).
In the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), request for the indication of provisional measures, this Court considered that declarations made under Article 36, paragraph 2, of its Statute "constitute a prima facie basis upon which its jurisdiction might be founded" (Order of 15 March 1996).
The Federal Republic of Yugoslavia further relies on Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, which provides as follows:
In its Orders of 3 April and 13 September 1993, the Court considered that Article IX of the Genocide Convention, to which both the Applicant and the Respondent are parties, appeared to "afford a basis on which the jurisdiction of the Court might be founded" (I.C.J. Reports 1993, p. 16, para. 26 and p. 342, para. 36).
It accordingly follows, in Yugoslavia's view, that there appears to be no doubt as to the prima facie jurisdiction of the Court to indicate provisional measures to be taken or implemented by the Parties against whom the requests have been filed.
2. Preservation of each party's rights
In relation to provisional measures, Article 41 of the Statute of the Court speaks of "le droit de chacun". The English text is more precise, referring to "provisional measures which ought to be taken to preserve the respective rights of either party".
The need to safeguard the rights currently at issue constitutes the legal basis enabling the Court to indicate measures. The jurisprudence of the Court in this regard has, however, undergone a certain evolution. In recent years, your Court has tended to be prepared to indicate provisional measures in case of armed conflicts or violent incidents. It has introduced into its jurisprudence the notion of preventing aggravation of the dispute and the need to avoid incidents.
In support of this tendency I would cite the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), in which the Court unanimously indicated a provisional measure which provided that:
In the Frontier Dispute case between Burkina Faso and the Republic of Mali the Chamber of the Court stated:
Finally, it is also worth citing the passage in the case concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, where the Court considered that "there is a risk that events likely to aggravate or extend the dispute may occur again, thus rendering any settlement of that dispute more difficult" (I.C.J. Reports 1996, p. 23, para. 42).
Mr. President, in all cases involving an armed conflict resulting in the loss of human life and material damage, the preservation of the respective rights of the parties requires that they avoid any aggravation or extension of the dispute or any armed confrontation.
The Court may exercise its power to indicate provisional measures only to the extent that it considers that the circumstances so require in order to preserve the respective rights of the parties. It is therefore necessary to identify the rights capable of being protected. Looking at Yugoslavia's Application, and in particular the statement of international obligations which Yugoslavia claims to have been violated, we are bound to conclude that these are rights which are neither inexistent, illusory or non-specific. It is quite clear that acts prejudicial to the rights of Yugoslavia have been, and continue to be, committed over a period now extending to almost two months. Does this then entitle us to conclude, Mr. President, that there is no longer any urgency, given that these acts are continuing and intensifying day by day? Can it be said that the rights which Yugoslavia invokes in virtue of international law do not deserve, or no longer deserve, to be safeguarded, by reason of the fact that they have in any case already been ignored and violated?
The Federal Republic of Yugoslavia considers that the circumstances of this case, namely the massive and continuing military intervention by countries of the Atlantic Alliance, by means of aerial bombardment causing substantial damage to civilian targets, to protected targets and to the civilian population, as evidenced by the documentation produced to the Court, requires that the International Court of Justice indicate provisional measures in accordance with Article 41 of the Statute of the Court.
Finally, I shall deal briefly with the question of urgency.
Article 74 of the Rules of Court provides inter alia that a request for the indication of provisional measures shall have priority over all other cases and that the Court . . . shall be convened forthwith for the purpose of proceeding to a decision on the request as a matter of urgency. In the case concerning the Land and Maritime Boundary between Cameroon and Nigeria, this Court stated that provisional measures "are only justified if there is urgency" (I.C.J. Reports 1996, p. 22, para. 35).
In the case concerning the Passage through the Great Belt (Finland v. Denmark), the Court gave the following definition of urgency:
In the Land and Maritime Boundary case, Nigeria argued that the circumstances of the case, and in particular the fact that efforts to reach a diplomatic solution were being undertaken, demonstrated that there was no urgency. The Court did not accept this view. Having first stated that these efforts at mediation "[did] not, however, deprive the Court of the rights and duties pertaining to it in the case brought before it" (I.C.J. Reports 1996, p. 22, para. 37), the Court then immediately went on to add an important criterion for determining whether there was urgency:
In these circumstances, how can it be denied, Mr. President, Members of the Court, when we consider the totality of the acts carried out since 25 March inside the Federal Republic of Yugoslavia, in the form of an increasingly intensive aerial bombardment by countries of the Atlantic Alliance, causing ever more serious civilian damage and injury to the civilian population, that the request for the indication of provisional measures is in truth a matter of urgency?
Thank you, Mr. President. I now ask you to call upon Dr. Mitic.