| Source: http://www.icj-cij.org/icjwww/idocket/iyall/iyall_cr/iyall_icr9914_19990510.html Accessed 18 May 1999
YEAR 1999 Public sitting held on Monday 10 May 1999, Vice-President Weeramantry in the case concerning Legality of Use of Force (Yugoslavia v. Belgium) (Yugoslavia v. Canada) (Yugoslavia v. France) (Yugoslavia v. Germany) (Yugoslavia v. Italy) (Yugoslavia v. Netherlands) (Yugoslavia v. Portugal) (Yugoslavia v. Spain) (Yugoslavia v. United Kingdom) (Yugoslavia v. United States of America [Note: The listing of the names of the representatives of the governments invovled in this action have been omitted] Part I The VICE-PRESIDENT, acting President: Please be seated. The sitting is open. The Court meets today, pursuant to Article 74, paragraph 3, of the Rules of Court, to hear the observations of the Parties on the requests for the indication of provisional measures submitted by the Federal Republic of Yugoslavia in the proceedings concerning Legality of Use of Force instituted by it on 29 April 1999 against, respectively, Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United Kingdom and the United States of America. Although each of these proceedings is a separate case, all of them were instituted by applications in similar terms, in which the Applicant takes the same position on the merits, and the provisional measures requested in each case are identical. The Court has accordingly taken the view that it should make certain practical arrangements to facilitate the conduct of these hearings on the requests for the indication of provisional measures. It has decided on the following procedure: Yugoslavia, being both the Applicant and the State seeking provisional measures, will speak first, addressing its requests for the indication of provisional measures in respect of all the cases. Yugoslavia will be followed by the individual Respondents, each of which will address the case to which it is Party; for the purposes of these cases, the Respondents will be heard in their English alphabetical order, which is also the order in which the various cases have been entered on the Court's General List. These practical arrangements are without prejudice to any subsequent decision by the Court, pursuant to Article 47 of its Rules, at any time to direct that proceedings be joined, or to direct common action in respect of one or more elements of the proceedings pending before it. * Article 32 of the Rules of Court provides that, if the President of the Court is a national of one of the parties in a case, he shall not exercise the functions of the presidency in respect of that case. The President of the Court, Judge Schwebel, will accordingly not exercise the functions of the presidency in the case between Yugoslavia and the United States of America. Notwithstanding that Article 32 does not apply, as such, to the other proceedings instituted by Yugoslavia on 29 April 1999, Judge Schwebel considers that it would not be appropriate for him to exercise the functions of the presidency in any of those cases either. It therefore falls on me as Vice-President of the Court, pursuant to Article 13 of the Rules of Court, to exercise the functions of the presidency in all of the cases concerning Legality of Use of Force. * By a letter dated 26 April 1999, which accompanied all the Applications, the Minister for Foreign Affairs of Yugoslavia informed the President of the Court that his Government, availing itself of the provisions of Article 31 of the Statute of the Court, wished to choose Mr. Milenko Kreca to sit as judge ad hoc in all of the cases submitted by it to the Court. None of the respondent Governments raised any objection within the time-limit fixed for this purpose pursuant to Article 35, paragraph 3, of the Rules of Court. Since the Court itself had no objection, the choice of Mr. Kreca was then confirmed. By a letter dated 5 May 1999, the Ambassador of Belgium to the Netherlands informed the Court that the Belgian Government wished to choose Mr. Patrick Duinslaeger to sit as judge ad hoc in the case of Yugoslavia v. Belgium. By a letter of the same date, the Minister of Foreign Affairs of Canada informed the Court that his Government wished to choose the Honourable Marc Lalonde, C.P., O.C., C.R., to sit as judge ad hoc in the case of Yugoslavia v. Canada. By a letter dated 7 May 1999, the Ambassador of Italy to the Netherlands informed the Court that the Italian Government wished to choose Mr. Giorgio Gaja to sit as judge ad hoc in the case of Yugoslavia v. Italy. By a letter of the same date the Chargé d'affaires of Spain to the Netherlands informed the Court that his Government wished to choose Mr. Santiago Torres Bernárdez to sit as judge ad hoc in the case of Yugoslavia v. Spain. Within the time-limits fixed for that purpose pursuant to Article 35, paragraph 3, of the Rules of Court, the Government of Yugoslavia, referring to Article 31, paragraph 5, of the Statute of the Court, objected, in identical terms, to each one of these nominations. Article 31, paragraph 5, of the Statute reads as follows:
The Court, after due deliberation, found that the nomination of judges ad hoc by Belgium, Canada, Italy and Spain was justified in the present phase of their respective cases, and that Messrs. Duinslaeger, Lalonde, Gaja and Torres Bernárdez would accordingly sit at the present hearings and take part in the Court's subsequent deliberations in the current phase of those cases. The Parties were immediately informed of the Court's decision. It therefore now devolves on me to perform the pleasant duty of installing these distinguished individuals as judges ad hoc. Mr. Kreca, Professor of International Law and formerly Associate Dean, Belgrade School of Law, is well known to the Court, since he is already sitting as judge ad hoc in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia). Mr. Duinslaeger is Advocate-General at the Belgian Court of Cassation; before that, he was inter alia Deputy Prosecutor-General at the Brussels Court of Appeal and Judicial Liaison Officer for Belgium at the International Criminal Tribunal for the former Yugoslavia and at the International Criminal Tribunal for Rwanda. Mr. Lalonde is an individual eminent both in the political and in the legal field; he, too, is well known to the Court, since he recently sat as judge ad hoc in the case concerning Fisheries Jurisdiction (Spain v. Canada). Mr. Gaja, member of the Institut de droit international, is Professor at the Faculty of Law of the University of Florence and a former Dean of that Faculty; he was counsel to the Italian Government before this Court in the Elettronica Sicula S.p.A. (ELSI) case. Lastly, I come to Mr. Torres Bernárdez, who hardly requires further introduction: he too is a member of the Institut de droit international and was formerly Registrar of this Court; he sat as judge ad hoc both in the case concerning Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) and in the Fisheries Jurisdiction(Spain v. Canada) case; he currently sits as judge ad hoc in the case concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain). As you know, Article 31, paragraph 6, of the Statute renders applicable to judges ad hoc the requirement imposed by Article 20 upon all Members of the Court that, before they take up their duties, they must make a solemn declaration in open court that they will exercise their powers impartially and conscientiously. Moreover, Article 8, paragraph 3, of the Rules states that judges ad hoc shall make the declaration "in relation to any case in which they are participating", even if they have already made such a declaration on a previous occasion, outside the framework of the case in hand. I therefore now call upon the distinguished ad hoc judges nominated in the various cases to make the declaration set out in Article 4, paragraph 1, of the Rules. We will proceed case by case, following the order in which they have been entered on the List. I shall ask Mr. Kreca to make his declaration first; exceptionally, this declaration will be deemed to have been made in each one of the ten cases. I will then call, in the following order, Messrs. Duinslaeger, Lalonde, Gaja and Torres Bernárdez. I ask all those present to rise. Mr. Kreca. Mr. KRECA:
The VICE-PRESIDENT, acting President: Thank you. Mr. Duinslaeger. Mr. DUINSLAEGER:
The VICE-PRESIDENT, acting President: Thank you. Mr. Lalonde. M. LALONDE:
The VICE-PRESIDENT, acting President: Thank you. Mr. Gaja. M. GAJA :
The VICE-PRESIDENT, acting President: Mr. Torres Bernárdez. Mr. TORRES BERNÁRDEZ :
The VICE-PRESIDENT, acting President: Thank you. Please be seated. I take note of the solemn declarations made by Messrs. Kreca, Duinslaeger, Lalonde, Gaja and Torres Bernárdez, and accordingly declare them duly installed as judges ad hoc in the individual cases concerning Legality of Use of Force in respect of which they have been appointed. * * All of these cases, as I have already explained, were brought before the Court by separate applications, filed simultaneously in the Registry by Yugoslavia on 29 April 1999. The Applications for proceedings against Belgium, Canada, the Netherlands, Portugal, Spain and the United Kingdom base the jurisdiction of the Court on Article 36, paragraph 2, of the Statute and on Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948; whereas the Applications for proceedings against France, Germany, Italy and the United States of America base the Court's jurisdiction on Article IX of the Genocide Convention and on Article 38, paragraph 5, of the Rules of Court. Each of the Applications defines in identical terms, mutatis mutandis, the subject-matter of the dispute submitted to the Court. Likewise, each Application presents the facts and grounds of law, and the claims on the merits, in identical terms, mutatis mutandis. I will now call upon the Registrar to read out the claims formulated by Yugoslavia in its Applications, replacing throughout the name of the respondent State in question by the words "the Respondent". The REGISTRAR:
The VICE-PRESIDENT, acting President: On 29 April 1999, after filing its Applications instituting proceedings, the Yugoslav Government submitted in respect of each case a request for the indication of provisional measures, invoking Article 73 of the Rules of Court. In each of these requests Yugoslavia amplifies in the same way the facts stated in the Applications, and in particular lists in identical terms the targets alleged to have come under attack in the air strikes and the damage claimed to have been inflicted upon them. At the close of each of the requests for the indication of provisional measures, Yugoslavia states that:
I now call upon the Registrar to read out the measure which Yugoslavia asks the Court, in identical terms mutatis mutandis, to indicate in each of its requests; for the sake of convenience, I shall ask him to replace the name of the respondent State in each case by the words "the Respondent". The REGISTRAR:
* The VICE-PRESIDENT, acting President: Immediately after the filing of the Applications and the requests for the indication of provisional measures, signed copies thereof were transmitted to the Governments concerned, in accordance with Article 38, paragraph 4, and Article 73, paragraph 2, of the Rules of Court. Article 74 of the Rules of Court provides that a request for the indication of provisional measures shall have priority over all other cases. The date fixed for the hearing must afford the Parties an opportunity of being represented at that hearing. Accordingly, by communications dated 29 April 1999, the Parties to each case were informed that the date for the opening of the hearing provided for in Article 74, paragraph 3, of the Rules, at which they would be able to present their observations on the request for the indication of provisional measures, had been set at 10 May 1999, at 10 a.m. By letters dated 4 and 8 May 1999 the Parties were further informed of the practical arrangements which the Court had made in order to facilitate the conduct of those hearings. * * In accordance with my announcement at the beginning of this sitting, the Court will first hear Yugoslavia make its presentation against all ten Respondents. For this purpose the entire Court and all the ad hoc judges will sit. Thereafter each case will be taken up in English alphabetical order and the Court appropriately constituted will reconvene for each of these hearings. It is expected that Yugoslavia will make its presentation for two hours and thereafter each party Respondent will address the Court for one hour. I now accordingly call upon Mr. Etinski, Agent of the Federal Republic of Yugoslavia, to make his submissions.
Mr. ETINSKI: Mr. President, distinguished Members of the Court, I have the honour to appear before you as the Agent of the Federal Republic of Yugoslavia in a case against the United States of America, the United Kingdom of Great Britain and Northern Ireland, the Republic of France, the Federal Republic of Germany, the Republic of Italy, the Kingdom of the Netherlands, the Kingdom of Belgium, Canada, Portugal and the Kingdom of Spain (hereinafter referred to as the Respondents), due to bombing of the Yugoslav territory in violation of the obligation not to use force against another State and other obligations. I am pleased and honoured to introduce to you Mr. Ian Brownlie, Mr. Olivier Corten, Mr. Steven Djordjevic, Mr. Miodrag Mitic, Mr. Eric Suy, Mr. Paul de Waart appearing before you as counsel and advocates and Mrs. Sanja Milinkovic as the assistant. Following the Applications, the Yugoslav Government filed requests for interim measures of protection, asking the Court to order the Respondents to cease immediately their acts of use of force and to refrain from any act of threat or use of force against the Federal Republic of Yugoslavia. I will try to draw your attention to the basic elements of the case in these incidental proceedings. Mr. Brownlie will elaborate illegal use of force. Mr. de Waart will cast some light on an attempt to impose by force the so-called Rambouillet Accord. Mr. Suy will address the issue of jurisdiction of the Court. Mr. Mitic will set out facts urging the Order of the Court. At the end of our first round presentation I will submit the request. The claim presented by the Applications reads as follows and, as I am referring now to all Respondents, the name of each Respondent appearing originally in each Application will now be replaced by the term "Respondents", but due to the economy of time, I will not read now the claim but, with your permission, it will appear in the records of the session:
The basic elements of the case are as follows:
Mr. President, distinguished Members of the Court, 1. The Court has jurisdiction to decide on the claim The grounds for jurisdiction of the Court to adjudge the claim are created by Article 36, paragraph 2, of the Statute of the Court and Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide in relation to the United Kingdom of Great Britain and Northern Ireland, the Kingdom of the Netherlands, the Kingdom of Belgium, Canada, Portugal and the Kingdom of Spain. In regard to the United States of America, the Republic of France, the Federal Republic of Germany and the Republic of Italy, the Court is authorized to act by Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide. The Applicant has referred also to Article 38, paragraph 5, of the Rules of Court inviting the Respondents to submit to the control of the Court with respect to legality of their attitude. Your Excellencies, 2. The use of force against the Federal Republic of Yugoslavia is illegal The acts of bombing of the Yugoslav territory are in breach of the obligation not to resort to the threat or use of force against another State, which exists as a general rule of customary law and as a basic principle of the Charter of the United Nations and has a nature of jus cogens. Bruno Simma is right when he says:
2.2. The acts of bombing of the territory of Yugoslavia are not just illegal acts. They constitute a crime against peace and also the crime of genocide. 2.3. The Security Council of the United Nations is exclusively empowered by the United Nations Charter to decide on the use of force, according to provisions of Chapter VII of the Charter. The United Nations Security Council may utilize regional arrangements or agencies for enforcement action. But according to Article 53 of the Charter "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council . . .". NATO and its member States are without authorization of the Security Council for the use of force against the Federal Republic of Yugoslavia. I find it opportune here to quote a few provisions. First, Article 103 of the Charter of the United Nations:
And second, Article 7 of the 1949 North Atlantic Treaty, which is quite in harmony with Article 103 of the Charter and reads as follows:
2.4. By bombing civilian targets the Respondents are in breach of the obligations established by the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War and by the 1977 Protocol I to the Convention. 2.5. By destroying oil refineries and chemical plants, the Respondents caused large pollution of soil, air and water endangering the basic conditions of survival of the nation. They have bombed several times the oil refineries in Pancevo, near Belgrade, in Novi Sad, the chemical plants for production of fertilizers in Pancevo, the nitrogen factory in Pancevo, the chemical company "Prva iskra" in Baric, close to Belgrade and others. A large part of the population of Pancevo have left their flats to protect themselves. 2.6. By using cluster bombs and weapons containing depleted uranium, the Respondents are in breach of the obligation not to use prohibited weapons, i.e., weapons calculated to cause unnecessary suffering, established as a principle of law of armed conflicts. It is estimated that the Respondents used about 15,000 cluster bombs. As many as 3,600 cluster bombs were used in the attacks against towns in Kosovo and Metohija - Pristina, Uroseva, Djakovica, Prizren and other cities. Mr. President, 3. Nothing can justify use of force against the Federal Republic of Yugoslavia The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by consensus in the General Assembly as resolution 2625 (XXV) of 24 October 1970, says:
The International Court of Justice has strictly applied this fundamental principle. It made clear its legal understanding of the principle in the Nicaragua case as follows:
Professor Schachter is quite clear in his "International Law in Theory and Practice", published in 1991. On page 128, he says:
I could stop here. But, without prejudice to the jurisdiction of the Court defined by the Yugoslav declaration of the acceptance of the compulsory jurisdiction of the Court, I believe that, for a full comprehension of the case, it could be useful to shed light on facts surrounding the case. The Federal Republic of Yugoslavia is a party to almost all international instruments on human rights. It is a party to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide; the 1966 International Convention on the Elimination of All Forms of Racial Discrimination; the 1966 International Covenant on Economic, Social and Cultural Rights; the 1966 International Covenant on Civil and Political Rights; the 1968 Convention on Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity; the 1973International Convention on the Suppression and Punishment of the Crime of Apartheid; the 1979 Convention on Elimination of All Forms of Discrimination against Women; the 1948 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the 1985 International Convention against Apartheid in Sports 1985; the 1989 Convention on the Rights of the Child. The Federal Assembly ratified in 1998 the Framework Convention for the Protection of Minorities adopted by the Council of Europe in 1994. The Framework Convention became a part of internal law and I submit, as Annex 1, the text of law 35 of this Convention. The basic rights of individuals - members of minorities - are provided for by the Yugoslav Constitution and relevant laws. There is a large number of minority communities in Yugoslavia. In the northern part of Serbia, Vojvodina, the Hungarians, Slovaks, Romanians, Ruthenians are the largest minority communities. There are no special difficulties in relations between them and the State. These communities are represented at all levels of State organization. They are practising local self-government and exercising their rights in the fields of education, culture and media. The Albanian community in Kosovo and Metohija has the same legal status and same rights. The problem in relations between this community and the State arises from the militant secessionist movement culminating in claim to secession. Demanding only and exclusively secession aimed at joining Albania and creating Great Albania, the major part of the Albanian minority, in the law few years, refused to exercise its rights provided for by internal law, to participate in elections, to co-operate with State organs. In spite of this, the atmosphere was tolerable. Even during the civil war in Croatia and Bosnia and Herzegovina there were no special difficulties. The situation with reference to human rights in the Federal Republic of Yugoslavia, including Kosovo and Metohija, was assessed as positive by the Respondents. Between 1996 and 1998, the Federal Republic of Yugoslavia concluded several bilateral agreements on the return and readmission of Yugoslav citizens obliged to leave the territory of the other State. Such agreements were applied in relation to the Federal Republic of Germany from 1 December 1996 (Ann. 2). The Agreement with the Republic of Italy was signed on 19 June 1997 (Ann. 3). The text of the agreement was initialled with the Kingdom of Belgium on 16 January 1998 (Ann. 4). The negotiations with Canada began in September 1997. The above-mentioned agreements are related almost entirely to Albanians from Kosovo and Metohija. They had been leaving Kosovo and Metohija due to economic reasons. To legalize their stay abroad they alleged national discrimination. As their requests for asylum were refused, while their number was increasing, the host countries negotiated their readmission to Yugoslavia. The refused requests for asylum and the negotiation and conclusion of agreements on the readmission of citizens obliged to leave the territory of the other State proved that these States did not find national discrimination against Albanians in Yugoslavia or the violation of their human rights to be the case. Otherwise, they would be in breach of their obligations vis-ŕ-vis refugees. In the course of 1996 and 1997 there were occasional terrorist attacks by small criminal groups. During 1998 the situation changed. In that year there were 1,854 terrorist attacks in which 284 persons were killed and 556 were wounded. Among them there were 115 killed and 399 wounded policemen. More that 100 civilians were kidnapped by terrorist groups. Their fate remains unknown. The Governments of the Federal Republic of Yugoslavia and the Republic of Serbia tried to find a peaceful solution offering a broad autonomy for Kosovo and Metohija and nominating a government delegation to discuss the autonomy issue with representatives of the political parties of Kosovo Albanians. About twenty times during 1998 the Government delegation travelled to Pristina, the capital of Kosovo and Metohija, waiting for the representatives of the Albanian political parties. But they did not appear. In late summer 1998, police forces managed to suppress terrorist activities and to disperse terrorist groups in Kosovo and Metohija. Forcibly recruited Albanians handed over weapons to the police and returned to their villages where they received medical care and relief supplies, in particular food, by the State authorities. Not escaping external monitoring of the situation in Kosova and Metohija, the Government of the Federal Republic of Yugoslavia concluded with the OSCE on 16 October 1998, the Agreement on the OSCE Kosovo Verification Mission, accepting a large monitoring mission of 2,000 members and reducing the presence of police and armed forces in Kosovo and Metohija. The willingness of the Yugoslav Government to bring about the calming down of the situation was abused by terrorist groups. They reorganized themselves and continued with terrorist attacks. When attacking civilians, they were occasionally and pro forma warned by the Respondents. As if they were entitled to kill Yugoslav policeman and soldiers. In fact, the terrorist groups were supported by the Respondents. Bank accounts for the contribution to terrorism in Kosovo and Metohija exist in the United States of America, the Republic of France, the Republic of Italy, the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of the Netherlands and Canada and have been advertised in the media and on the Internet. Desirous to overcome the difficult situation, the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia accepted the invitation of the Contact Group countries to meet the representatives of the political parties of the Kosovo Albanians at Rambouillet in an attempt to reach a political accord on broad autonomy for Kosovo and Metohija. To fulfil the precondition of the Kosovo Albanian parties for talks to begin, the Governments accepted the Contact Groups' representatives as mediators. Unfortunately, this opportunity was misused by some member countries of the Contact Group. They attempted to impose on the Federal Republic of Yugoslavia by ultimatum and the so-called Interim Agreement of Peace and Self-Government in Kosovo. These countries attempted to impose a project of self-government, non-existent anywhere in the world, which encompasses elements of sovereignty and jurisdiction over and above those of federal units. Furthermore, it provided for some sort of protectorate over Kosovo and Metohija, as well as military occupation by international military forces under the direction of NATO. There is no State with a minimum self-respect that could possibly accept such a proposal. This does not mean that the delegation of the Government of Serbia and Yugoslavia, at the meeting in France, gave up the idea of broad autonomy. The members of the delegation signed their proposal entitled "Agreement on Self-Government in Kosmet". After the failure of the Rambouillet-Kleber meeting, NATO began to send troops to countries bordering with Yugoslavia, i.e. with Serbia's province of Kosovo and Metohija. In response Yugoslavia increased the presence of its forces in the region but nothing dramatic happened in Kosovo and Metohija. Without any grounds whatsoever, the OSCE Chairman-in-Office withdrew the Kosovo Verification Mission. In this letter he said:
The Chairman-in-Office made no mention of the humanitarian catastrophe because it did not exist at the time. But, it was precisely the humanitarian catastrophe that was subsequently presented as the reason for the beginning of the use of force. He referred only to "the increased violence in Kosovo" blaming both the Yugoslav troops and the so-called KLA. He did not explain the accusation further. At that time the terrorist groups intensified their activities, intending to prepare justification for NATO military intervention. The Chairman-in-Office mentioned also "the build up of Yugoslav troops in Kosovo in breach of the October Agreement". As I said earlier, the number of Yugoslav armed forces was slightly increased in response to a growing number of NATO troops on the Yugoslav borders. By bombing the territory of Yugoslavia, the Respondents have caused the humanitarian catastrophe in the whole of Yugoslavia, including Kosovo and Metohija. Streams of refugees moved from all parts of Yugoslavia. The Government of the Federal Republic of Yugoslavia declared unilaterally the cessation of its actions against terrorist groups in Kosovo and Metohija before the Orthodox Easter and called on the refugees to return to their homes. The Respondents answered that it is not enough, that it is necessary that NATO forces come to Kosovo and Metohija to secure the safe return of the refugees. After that, NATO bombed a refugee column, killing 75 Albanian refugees returning to their homes. I wish to underline that the Albanian minority in Yugoslavia is not threatened by the State of Serbia or Yugoslavia. It is victimized by the secessionist policy of its political leadership pushing it to confrontation with the State. Your Excellencies, if the Respondents contend that their motive is pure and boils down to the protection of human rights, please be cautious about this assertion. My Government has applied for membership of the Council of Europe (Ann. 6). It has been learned that the way to the membership of the Council of Europe leads through the European Convention for Human Rights and through the membership of the European Court of Human Rights. Instead of supporting this application and opening a possibility for external judicial control of human rights in my country, the Respondents chose bombing as a method of improving the state of human rights in the Federal Republic of Yugoslavia. By killing people, by murdering children, by destroying the economy, by polluting the soil, air and water, the Respondents intend to protect the rights of one minority. By destroying a whole nation, they want to protect a part of that nation, i.e., one of its numerous ethnic communities. Mr. President, distinguished Members of the Court, such an attitude cannot be acceptable from any point of view. Your Excellencies, the Respondents are deliberately inflicting on the Yugoslav nation as a national group conditions of life calculated to bring about its physical destruction in whole or in part. 4.1. Continued bombing of the whole territory of the State, 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. 4.2. The Respondents have used weapons containing depleted uranium. The Institute for Nuclear Science, based in Belgrade, confirmed this fact (Ann. 7). The Army Environmental Policy Institute tasked by the Office of the Assistant Secretary of the Army Installations, Logistic and Environment of the USA has produced the technical report on health and environmental consequences of depleted uranium use in the US Army. Commenting on the health risk from radiation, the Report informed:
It is well known that the radiation hazard materialized in the case of a large number of US soldiers participating in actions against Iraq. Serious health and environmental consequences have been detected in areas of Bosnia and Herzegovina exposed to effects of weapons containing depleted uranium. Far-reaching health and environmental damage is a matter of certain pre-knowledge of the Respondents, and that implies the intent to destroy a national group as such in whole or in part. 4.3. On the night of 2 May 1999 and later, the Respondents bombed power plants, transformer stations and transmission lines, destroying the largest part of the country's power supply system and leaving almost all users without electricity. By this act the Respondents have targeted the Yugoslav nation as a whole and as such. In the present-day world electricity is an element of survival of society. The Respondents had to be aware that the destruction of the power supply system of a country can produce enormous consequences, including loss of human life. This is also a matter of certain pre-knowledge on the part of the Respondents and implies the intent to destroy the Yugoslav national group. 4.4. The above facts substantiate the qualification of the crime of genocide. Mr. President and Members of the Court, the acts of force are imputable to the Respondents. 5.1. The Respondents have used their military forces for bombing. The military forces are organs of a State and their acts are imputable to a State. 5.2. I refer to Article 5 of the 1949 North Atlantic Treaty, which reads as follows:
According to quoted basic rule, the Respondents are acting individually and in concert. 5.3. I believe that information offered by the NATO Handbook published in 1998, dealing with the functioning of that Organization, could be relevant for the matter. Describing "the principal policy and decision-making forum of NATO, the North Atlantic Council", the Handbook says:
5.4. And about the role of integrated military forces, the Handbook informs:
5.5. So, even as a part of the integrated military force of NATO, military forces of the Respondents are under their control and guidance. Your Excellencies, there are facts proving the greatest urgency concerning provisional measures of protection and existence of irreparable prejudice. Until now the Respondents killed more than 1,200 people in Yugoslavia and wounded more than 4,500 people. After filing the requests for preliminary measures of protection, Respondents killed more than 200 people in Yugoslavia. On the night of 30 April 1999, the Trauma Centre in Belgrade admitted 38 citizens wounded in the attack of the Respondents on downtown Belgrade. One of them died. On 1 May 1999 around 1.00 p.m., the Respondents bombed a bus on the Pristina-Podujevo road in Kosovo and Metohija, killing 60 passengers aboard the bus. Out of 13 wounded and taken to the Clinical Centre in Pristina, nine are Albanians and four are Serbs. There are four children. The bus running a regular service between Nis and Pristina took a direct hit by a missile, cutting it in half. One hour later, they targeted an ambulance which rushed to the scene to attend to the victims. One physician received a wound to the head. (Photo evidence is enclosed.) On 3 May 1999 around noon, the Respondents struck a bus running between Pec-Kula and Rozaje in Kosovo and Metohija. Twenty civilians were killed and 43 injured. Mostly women, children and elderly people were on board. The bus running a service between Djakovica and Podgorica was burned in the strike. The bus took a direct hit from two missiles while cluster bombs were dropped at the time when police and medical teams from Pec tried to get to the bus and rescue the victims. A great many fragments of cluster bombs were found about the scene of the incident. The words "sensor proximity - 39/b" were written on the cluster bombs. Besides the bus, several cars were hit. On 7 May 1999, the Respondents bombed by cluster bombs the centre of Nis, the second largest city in Yugoslavia, killing ten civilians. On the night of 7 May 1999, bombing the centre of Belgrade they destroyed the Embassy of the People's Republic of China, murdering four members of the diplomatic staff. The Respondents confirmed all the above casualties. In the period after submission of the requests for preliminary measures, the Respondents bombed Belgrade, Podgorica, Novi Sad, Pristina, Nis, Pancevo, Vrsac, Uzice, Cacak, Kraljevo, Trstenik, Nova Varos, Pec, Leposavic, Berane, Sombor, Novi Pazar, Krusevac, Pozega, Bajina Basta, Prijepolje, Valjevo, Sremska Mitrovica, Gnjilane, Kosovska Mitrovica, Backa Palanka and a large number of villages (photo evidence is enclosed). It means that the Respondents bombed the entire territory of Yugoslavia, causing enormous civilian and military casualties and destruction. They intend to proceed to the full destruction of the Yugoslav nation. They should be halted before that. Thank you, Mr. President and distinguished Members of the Court, for your attention, and I kindly ask you, Mr. President, to call on Mr. Brownlie to take the floor.
The VICE-PRESIDENT, acting President: Thank you, Mr. Etinski. I give the floor now to Mr. Brownlie.
Mr. BROWNLIE: Mr. President, distinguished Members of the Court,
I have the privilege to represent the Federal Republic of Yugoslavia. My task in the first round is to review the legal issues concerning the use of force by the respondent States. I. Propositions In the first place I would like to present a set of propositions.
That completes my series of propositions.
II. Article 2, paragraph 4, of the United Nations Charter And so the attack on the territory of Yugoslavia involves a continuing breach of Article 2, paragraph 4, of the Charter. In my submission, the principle of Article 2, paragraph 4, stated in 1945 remains unqualified. As Professor Virally, amongst others, has pointed out, the preparatory work of the Charter indicates unequivocally that intervention for special motives was ruled out by the inclusion of the phrase "against the territorial integrity or political independence of any State". (See Cot and Pellet, La Charte des Nations Unies, 1985, p. 114.) That is the contribution by Professor Virally. The subsequent practice of the member States of the United Nations has not produced a departure in general international law. Such a departure would, in principle, be a major aberration and would require consistent and substantial evidence. Such a change in customary law has not been asserted to exist, much less proved, by a single member State of NATO.
III. Confirmation of this position The position of the Charter was confirmed, 25 years later, in 1970, in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation. As the Court will readily appreciate, the Declaration provides evidence of the consensus among States on the meaning of the principles of the Charter. In particular, the Declaration confirmed:
The document then has an official commentary:
The general legal régime of the Charter was affirmed by Professor Schwebel, as he then was, in his Hague lectures delivered in 1972 under the heading "Aggression, Intervention and Self-defence in Modern International Law" (Recueil des Cours, Vol. II (1972), pp. 413-497). The basic principles of the legal régime relating to the use of force were also reaffirmed in the Definition of Aggression adopted by the General Assembly on 14 December 1974(resolution 3314 (XXIX)). Article 5 of the definition provides that: "No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression." |
Document compiled by Dr S D Stein