Uncorrected

International Court
of Justice

THE HAGUE

in the case concerning

Legality of Use of Force
(Yougoslavia v. United Kingdom)

Request for the indication of provisional measures
_______________

[Note: A listing of the names of the legal respresentatives and the judges has been omitted]

CR/99/34 - Public sitting held on Wednesday 12 May 1999, at the Peace Palace,
Vice-President Weeramantry, Acting President,
presiding in the case concerning Legality of Use of Force
(Yugoslavia v. United Kingdom)

The VICE-PRESIDENT, acting President: Please be seated. The Court meets now to hear the submissions of the United Kingdom in the case concerning the Legality of Use of Force (Yugoslavia v. United Kingdom) and I have much pleasure in calling upon the distinguished Agent of the United Kingdom, Sir Franklin Berman, to address the Court.

Sir Franklin BERMAN: Mr. President, Members of the Court, may it please the Court:

It is my honour to appear for the United Kingdom in these proceedings; the Deputy Agent is Mr. Michael Wood. The United Kingdom will be represented in the oral argument by the Attorney-General, the Rt. Hon. Mr. John Morris, Q.C., and by Professor Christopher Greenwood, Q.C.

It will be no surprise to the Court if I begin by recalling the United Kingdom's long-standing attachment to the judicial settlement of international disputes, as epitomized by its continued acceptance of the Court's compulsory jurisdiction for the better part of the present century. I recall that fact with particular emphasis now because that attachment to the Court as a judicial institution at the highest level goes together with a determination, a determination not to allow its process to be misused for disreputable political purposes. It is precisely for that reason that the Attorney-General appears in person today to put before you the powerful reasons both of law and of fact why the Court should not, in all the circumstances, entertain the request for provisional measures put forward by the Applicant. After he has done so, Professor Greenwood will discuss in greater detail the Court's lack of jurisdiction over the case, and the Attorney-General will then wind up.

Finally, Mr. President, to avoid any misunderstanding, may I state formally before the Court that the United Kingdom does not, by its appearance today, consent to any jurisdiction other than such as may already have existed at the time the Application was filed.

With your leave, Mr. President, I would now like to call upon the Attorney General to present the legal argument.

The VICE-PRESIDENT: Attorney-General you have the floor.

Mr. MORRIS: Mr. President, distinguished Members of the Court: May it please you.

1. It is a privilege as well as a personal pleasure to appear before you for the first time. It brings back a vague and distant echo of attending the Hague Academy course next door, during my student days - more years ago than I care to remember!

2. Today however, Mr. President, I represent the Government of which I am a member. I have decided to appear in person because of the importance that we attach to any proceeding before the International Court of Justice. And I do so above all because of the desperate seriousness and significance of the situation that has been unfolding in the province of Kosovo and because of our determination to rebut the wholly misleading presentation offered by our opponents.

3. I shall speak briefly. Our case rests on two pillars. First that the Applicant has made no serious attempt to meet the legal conditions - either of jurisdiction or of substance - required for the granting of provisional measures of protection, so much so that its requests are an abuse of the process of the Court.

4. Secondly, the Court should not, in any event, entertain an application for a remedy from a government which stands accused of one of the most systematic and horrific campaigns of repression seen in Europe since this Court was created and should certainly not contemplate granting a request designed to allow those atrocities to continue unhindered.

5. Mr. President, what the Court has before it in the Applicant's written submissions is ostensibly an Application instituting proceedings against my Government. Coupled with that is a request to the Court to make an order indicating what the Statute calls "provisional measures of protection". "Ostensibly" is of course a strong word. But my submission to you is that all the circumstances show that the Application by the Federal Republic of Yugoslavia ("the Application") is no more than a vehicle for getting on its feet a request for provisional measures; and that the request for provisional measures ("the request") is itself so insubstantial and contrived as to amount to an abuse of the process of this Court. I shall therefore with respect be asking you to dismiss the request accordingly.

6. In a case such as the present, where the Court's jurisdiction has yet to be established and is certain to be contested, the Court has indicated a number of conditions that must be met before it can indicate provisional measures of protection. First, there must be a prima facie basis for the jurisdiction of the Court in respect of the Application. Second, the provisional measures must be sought for the purpose of protecting rights which are capable of being the subject of a judgment of the Court in the exercise of that jurisdiction. Thirdly, the circumstances must be such that there is an urgent need for the indication of provisional measures to prevent irreparable damage being caused to those same rights.

7. These are the prerequisites for the indication of provisional measures. It is for the Applicant to establish that they are met. In this case, none of them is. Mr. President, counsel for the Federal Republic of Yugoslavia scarcely even bothered to refer to these questions in their submissions yesterday. Yet they are the issues that must be decided in this phase of the proceedings. So I make no apology for confining myself to them, and not following Professor Brownlie into some interesting territory which is appropriate only for a hearing on the merits. He put forward some questionable propositions, which we will deal with if the case is ever pursued to that stage. For the moment I simply say with all emphasis that the United Kingdom has acted - and will continue to act - in accordance with international law both in our resort to force and in the methods and the means that we have adopted.

8. Mr. President, the Court has repeatedly - and rightly - made clear that a request for provisional measures is not a matter to be taken lightly. It entails asking the Court to suspend its other work and call upon a State to act - or refrain from acting - in a particular way, before the Court has established whether it has jurisdiction, often (as now) without exchange of written arguments, and without anything but the briefest of hearings. Both the Statute and the extensive jurisdiction of the Court make clear that this is admissible only when there is an urgent threat of irreparable damage to rights which are properly the subject of proceedings. These requirements are important. They are important for the due administration of justice between the parties and they are important for safeguarding the work of the Court as a high judicial institution.

9. Without the first requirement - prima facie jurisdiction - an Applicant might entice the Court into a measure which the Court subsequently finds it had no power to adopt and that would be a grave breach of the consensual nature and basis of the Court's jurisdiction. As Sir Hersch Lauterpacht explained in the Interhandel case:

"Governments ought not to be discouraged from undertaking, or continuing to undertake, the obligations of judicial settlement as the result of any justifiable apprehension that by accepting them they may become exposed to the embarrassment, vexation and loss, possibly following upon interim measures, in cases in which there is no reasonable possibility, prima facie ascertained by the Court, of jurisdiction on the merits." (I.C.J. Reports 1957, p. 118.)

10. The second requirement is just as important. Without it an Applicant could use an allegation about a threat to its rights under one treaty as a device to get interim relief on some other matter. Without the third requirement - of an urgent need for measures to prevent irreparable damage - an unscrupulous Applicant could tempt the Court into some pre-pronouncement on the substance of the dispute before the facts and the law have been properly argued, let alone established by the Court.

11. Our argument that the Federal Republic of Yugoslavia has failed to satisfy these requirements will be further developed by Professor Greenwood. However, we also submit that even in a case in which these essential pre-conditions are met, the Court is not obliged to indicate provisional measures. It has a discretion to do so. The United Kingdom submits that the present case is not one in which it would be appropriate for the Court to exercise its discretion and grant provisional measures.

12. Mr. President, we must not let our careful and lawyerly analysis of these jurisdictional factors obscure our view of the real situation in Kosovo, of the human misery and suffering caused by the planned and deliberate actions and policies of the Government whom our opponents come here to represent, of the massive and shocking oppression of an entire ethnic population and the dire effects of this on neighbouring States. Let me simply give you a description containing some facts and figures - some of which you have had already - which I will do as dispassionately as I can despite the great indignation and outrage they have caused amongst ordinary people in my country. I do so, Mr. President, not in my words or the words of the British Government, but in those of the United Nations High Commissioner for Refugees, briefing in person the members of the Security Council on 5 May of this year - a week after these proceedings were started.

13.

"The situation of women, men and children fleeing the Province of Kosovo and Metohija, in the Federal Republic of Yugoslavia, is increasingly desperate. Kosovo is being emptied - brutally and methodically  - of its ethnic Albanian population. In the last three days alone [she said], about 37,000 new refugees and internally displaced people have arrived in Albania, the former Yugoslav Republic of Macedonia, and the Republic of Montenegro. More trains with thousands of refugees have arrived last night at the Yugoslav/Macedonian border. Ethnic cleansing and mass forced expulsions are yielding their tragic results faster than we can respond . . . Fragile and unprepared countries are bearing the brunt of one of the largest refugee flows Europe has seen in the twentieth century. Seven hundred thousand people have already been forced to leave their homes."

14. Mrs. Ogata went on to say, in a passage which is very important to put the allegations you heard from counsel for the Federal Republic of Yugoslavia in their right perspective:

"This refugee crisis is not new. Last year, more than a quarter of all asylum requests in Europe were by people from Kosovo. Up to 23 March, when UNHCR had to reluctantly leave the province following a decision of the United Nations Security Coordinator, it was providing assistance to 400,000 people displaced or otherwise affected by fighting inside the province, and to 90,000 refugees and displaced people outside Kosovo."

15. So, Mr. President, the Applicant has brought before you claims that 1,200 of its civilians have been killed in a seven-week military campaign - all civilian deaths are a source of sadness - but expects you to ignore that over 700,000 Kosovars have been driven from their homes: 700,000, nearly three-quarters of a million, over one-third of the entire population of Kosovo. How could anyone remain unmoved by that description, by those figures? They are of course confirmed by reports we get from our own diplomatic missions in neighbouring countries. Isn't it strange that there is not one word about them in the Application and request filed with the Court? Mrs. Ogata is in no doubt that the root cause is (and I quote again) "the systematic and intolerable violence being waged against an entire population, and the failure to prevent it". Nor could anyone who simply watches the television screen and reads the newspapers. Doesn't that make one pause and think about the true motive and purpose behind the attempt of the Federal Republic of Yugoslavia to move this Court to action in its favour?

16. This Court is of course familiar, Mr. President, with cases in which one litigating party says that a dispute is about such-and-such and the other party complains that so-and-so has also to be brought within it or taken into account. Those cases have to be judged each on its own merits. This case is however one that can only be understood against the background of why my country (together with others) is waging the military action complained of, and that is precisely (in Mrs. Ogata's words again) to prevent the systematic and intolerable violence being waged against an entire population. Everyone knows that, as does the applicant State itself. I will allow myself one final quotation - this time from a British source - to show that what we are doing is not against any people or population, but for the rescue of the Kosovar Albanians from their desperate plight.

17. Speaking, Mr. President, in the Security Council on 24 March, the day the military action began, the United Kingdom's Permanent Representative described it as "an exceptional measure to prevent an overwhelming humanitarian catastrophe".

"Under present circumstances in Kosovo [he went on] there is convincing evidence that such a catastrophe is imminent. Renewed acts of repression by the authorities of the Federal Republic of Yugoslavia would cause further loss of civilian life and would lead to displacement of the civilian population on a large scale and in hostile conditions. Every means short of force has been tried to avert this situation. . . . The force now proposed is directed exclusively to averting a humanitarian catastrophe, and is the minimum judged necessary for that purpose."

18. Contrary to what was suggested by counsel for the Applicant yesterday, those have always been the terms in which the British Government have presented their position in Parliament. My learned friend, Professor Brownlie, referred to a statement by the Prime Minister in the House of Commons on 23 March of this year. He suggested that this statement revealed an ambivalence on the part of my Government about the motives and legal basis for our action. Mr. President, it does nothing of the kind. What the Prime Minister said was that we would act "primarily to avert what would otherwise be a humanitarian disaster in Kosovo". Later in his statement he said:

"We must act to save thousands of innocent men, women and children from humanitarian catastrophe - from death, barbarism and ethnic cleansing by a brutal dictatorship . . ."

The motives for our action could not have been more clearly stated. They give the lie to counsel's suggestion yesterday that, in acting to halt humanitarian catastrophe in one Province of the Federal Republic of Yugoslavia, the British Government should have been seeking to bring humanitarian catastrophe to the civilian population in any other part of their country, still less intending to destroy any population group as such.

19. Mr. President, I will not deal in detail with the jurisdiction element. Professor Greenwood will cover that. I only want respectfully to remind you that, even if the Applicant's optional clause declaration was a valid acceptance of the Court's jurisdiction, its application against the United Kingdom is plainly excluded by the 12-month clause in our acceptance. But to the Applicant that crucial fact seems to be of no account. In fact, judging from what we have been hearing in Court over the last two days, the Applicant seems to have launched claims in pretty well identical terms against a whole series of different respondents without any regard to the terms on which each respondent may be within the jurisdiction of the Court - in fact without regard to whether some respondents are within the jurisdiction at all. That is hardly a sign of respect towards the judicial process of the Court.

20. Apart from the optional clause, which is clearly not applicable, the only other basis invoked is Article IX of the Genocide Convention. But, Mr. President, the same cavalier attitude permeates the Applicant's submissions on this point too. They give us virtually no indication of what conduct is actually alleged against the United Kingdom or of how that conduct might fall within the scope of the Genocide Convention. Nothing in the Applicant's written or oral submissions comes even near to a plausible allegation that the United Kingdom has breached its obligations under the Convention or threatens to do so. The factual allegations recited, even if all were proved true and even if we were responsible for them, are not genocide. Nor is there the slightest shred of evidence of genocidal intent. So where is there in any meaningful sense a dispute between us over the interpretation, application or fulfilment of the Genocide Convention?

21. I have explained, Mr. President, that what we are doing is designed to save one ethnic group, not - not - to destroy another. But what we do know with absolute certainty is that the authorities of the Federal Republic of Yugoslavia have been systematically engaged in what has acquired the eerie name of "ethnic cleansing". I gave you the shocking figures earlier. There is ample evidence that the ultimate aim is the forced removal of the entire ethnic Albanian population from the geographical area.

22. Mr. President, distinguished Members of the Court, the Applicant would have you believe that the situation in Kosovo is simple, a case of unwarranted external intervention. Counsel told you yesterday that if once the external intervention was stopped, the situation inside Kosovo would resolve itself into a model of ethnic harmony. You will know that such a depiction is wholly incredible. It is a travesty of the facts. It tries to banish from view the desperate humanitarian circumstances which led to our actions and the relief of which is our sole purpose. Not only that, but it tries to blind you to what happened since, as a result of the calculated policies of the Federal Republic of Yugoslavia. What the world requires - what in our submission international law requires - is that the inhabitants of Kosovo are able to return to their homes, are able to live there in peace and to rebuild their shattered lives. It is obvious that that requires far more than just the application of some simplistic nostrum: "stop the bombing". It means that the people of Kosovo must be protected against new atrocities. That is the reason why the G-8 Foreign Ministers adopted on 6 May seven principles designed to ensure the safe and free return of all refugees and displaced persons and conditions for a peaceful and normal life for all inhabitants in Kosovo.

23. So the Court, with respect, must ask itself what the effect would be of granting the provisional measures which the Federal Republic of Yugoslavia is urging upon it. The Court, with respect, is bound to consider that. But the Court may readily reach the conclusion that what the Federal Republic of Yugoslavia wants to achieve is to use the Court's processes to secure for itself a free hand to complete its planned campaign of "ethnic cleansing". At present the military action, directed specifically at the means of pursuing the oppression of the Kosovar Albanians, is the only thing holding the oppressors back. Imagine, imagine what the situation would be in the refugees' tented camps next winter if that restraint were lifted. Imagine the public reaction if a judicial proceeding in this Court were to lead to that result.

24. I come therefore, Mr. President, to my final point. This is whether the Court ought to be entertaining this request from the Federal Republic of Yugoslavia at all. I have already described it, in its careless disregard of the legal requirements, as an abuse of the process of the Court. It deserves to be dismissed on that ground alone. There is, however, Mr. President, a deeper point. In my own legal system a remedy like "provisional measures" would lie at the discretion of the Court. In considering whether or not to exercise that discretion, the Court would weigh up all the equities. In weighing up all the equities, the Court would pay particular attention as to whether the party seeking its assistance came with clean hands. The Court would not, however, allow its process to be used as an engine to assist turpitude. I can see no reason why exactly the same principles should not be applied by this honourable Court. They are deeply rooted in the essential nature of the judicial function. They should be regarded as "general principles of law" within the meaning of Article 38 of the Statute.

25. For this reason, as much as for any other, the Court should summarily dismiss the request.

Mr. President, I now ask you to call upon Professor Greenwood to develop our jurisdictional arguments.

The VICE-PRESIDENT, acting President: Thank you, Attorney-General. Professor Greenwood please.

Mr. GREENWOOD: Mr. President, Members of the Court, may it please the Court.

1. It is an honour to appear before you once again on behalf of my country.

2. The Attorney-General has already set out the conditions which must exist before the Court can indicate provisional measures of protection. With your permission, Mr. President, I shall now develop our arguments in respect of each of those conditions. I shall show:

First, that there is no prima facie basis for jurisdiction in the present case;

Secondly, that the provisional measures sought by the Applicant are not for the protection of rights which might form the basis of a judgment in the present case; and

Thirdly, that, in any event, the circumstances of the present case are such that there is no threat, let alone an urgent threat, of irreparable damage being caused to any rights of the Applicant which might form the basis of a judgment.

I can be brief, Mr. President, because the Federal Republic of Yugoslavia has skated over all of this in its Application and request and its counsel yesterday made scarcely any attempt to show that these conditions have been met.

1. There must be a prima facie basis for the jurisdiction of the Court

3. Turning first, Mr. President, to the absence of a prima facie basis for the jurisdiction of the Court, it is common ground between the Parties, and as the Court itself has held:

"on a request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such measures unless the provisions invoked by the Applicant  . . . appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established . . . this consideration embraces jurisdiction both ratione personae and ratione materiae . . ." (case concerning the Application of the Convention on the Prevention and Punishment of Genocide, Provisional Measures, I.C.J. Reports 1993, p. 11, para. 14; see also Nuclear Tests para. 13; United States Diplomatic and Consular Staff in Tehran, para. 15; Military and Paramilitary Activities, para. 24).

4. The threshold test is, therefore, whether the Applicant for provisional measures has demonstrated that it has a good arguable case that the Court has jurisdiction under one or more of the instruments invoked by it in its Application.

5. The Federal Republic of Yugoslavia has not done so. It has advanced only two possible grounds for jurisdiction - namely Article 36, paragraph 2, of the Statute and Article IX of the Genocide Convention - and has barely commented on either.

(a) Article 36, paragraph 2, of the Statute does not provide a prima facie basis for jurisdiction in the present case

6. So far as the optional clause is concerned, the Federal Republic of Yugoslavia relies upon the declaration made by the United Kingdom on 1 January 1969 and what purports to be a declaration by the Federal Republic of Yugoslavia dated 25 April 1999.

7. However, Mr. President, it is manifest that the optional clause does not provide even a prima facie basis for jurisdiction in the present case. There are several considerations which lead inexorably to that conclusion.

8. First, the declaration which the Federal Republic of Yugoslavia purported to make on 25 April 1999 is not a valid declaration under Article 36, paragraph 2. As the opening sentence of Article 36, paragraph 2, makes clear, only a party to the Statute may make a declaration under that provision. But the Federal Republic of Yugoslavia is not a party to the Statute of the Court.

9. It is clear from Security Council resolution 777 (1992) and from General Assembly resolution 47/1 adopted shortly afterwards, that the political organs of the United Nations have determined that the Federal Republic of Yugoslavia cannot automatically continue the membership of the former Yugoslavia and that it should apply for membership of the United Nations. It has chosen not to do so. The Federal Republic of Yugoslavia cannot, therefore, be regarded as a Member of the United Nations or as a party to the Statute of the Court. Consequently, it cannot establish a jurisdictional link with parties to the Statute by purporting to make a declaration under Article 36, paragraph 2.

10. Mr. President, as this matter was the subject of detailed submissions by Canada yesterday afternoon, I shall not say any more but respectfully adopt the submissions of counsel for Canada on this point as part of the argument of the United Kingdom.

11. Secondly, Mr. President, even if the declaration of 25 April is to be treated as valid, it still does not provide a basis, even a prima facie basis, for jurisdiction as between the Federal Republic of Yugoslavia and the United Kingdom. The United Kingdom declaration, under Article 36 (2), expressly excludes:

"disputes in respect of which any other Party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute; or where the acceptance of the Court's compulsory jurisdiction on behalf of any other Party to the dispute was deposited or ratified less than twelve months prior to the filing of the application bringing the dispute before the Court."

12. Although not expressly stated to be such, the Federal Republic of Yugoslavia's declaration is in substance an attempt to accept the jurisdiction of the Court solely for the purpose of a single dispute.

13. But, above all, Mr. President, the acceptance of the Court's compulsory jurisdiction by the Federal Republic of Yugoslavia was deposited only one day before the Federal Republic wrote to the Court regarding these proceedings and three days before the date on the Application and the request in the present proceedings. It is self-evident, therefore, that it fails to meet the twelve month requirement in the second clause of the United Kingdom reservation with the inevitable result that it cannot provide even a prima facie basis for the exercise of jurisdiction.

14. Now, Mr. President, my learned friend, Professor Suy, argued that the Land and Maritime Boundary case (Cameroon v. Nigeria) (I.C.J. Reports 1996, p. 13), provided a response, apparently on the basis that that case established beyond doubt that Article 36 (2) of the Statute was a prima facie basis for jurisdiction whenever the applicant and respondent States had made declarations under that provision. But, Mr. President, a glance at that case makes clear that the Court decided nothing of the kind. The Court in Cameroon and Nigeria expressly referred to the fact that neither Parties' declaration contained any reservation (Order of 15 March 1996, p. 20, para. 28). That is plainly not the case here.

15. Thirdly, even on its own terms the Federal Republic of Yugoslavia's declaration does not provide a prima facie basis for any jurisdiction of the Court in the present case. The Federal Republic of Yugoslavia has chosen to limit its acceptance of the jurisdiction of the Court to "disputes arising or which may arise after the signature of the present Declaration, with regard to situations or facts subsequent to this signature".

16. That is no accident, Mr. President. Those words were carefully chosen by the Federal Republic of Yugoslavia in an attempt to prevent the Court from inquiring into its own conduct in Kosovo prior to 25 April 1999, conduct which lies at the heart of the case currently before the Court. But when it comes to challenging the behaviour of others, the Federal Republic of Yugoslavia does not even bother to attach dates to the allegations it has made.

17. The supposition must, however, be that those allegations relate almost entirely to events which are said to have occurred before 25 April 1999. The Federal Republic of Yugoslavia must, therefore, face the consequences for its present claim of its careful attempts to shield itself from inquiry. The situation in Kosovo is one and indivisible and all of it falls outside the Federal Republic of Yugoslavia's declaration, even on its own terms.

(b) Article IX of the Genocide Convention

18. Since the optional clause cannot provide a prima facie basis for jurisdiction, the request for provisional measures is entirely dependent upon the Genocide Convention. The United Kingdom accepts, Mr. President, that that Convention is in force between itself and the Federal Republic of Yugoslavia and that Article IX of the Convention provides for the jurisdiction of the Court.

19. Article IX is not, however, a general disputes clause. It applies only to disputes regarding "the interpretation, application or fulfilment" of the Genocide Convention. As the Court stated in the Reservations Opinion, the object of that Convention "is to safeguard the very existence of certain human groups and . . . to confirm and endorse the most elementary principles of humanity" (I.C.J. Reports 1951, p. 23). To that end, the Convention defines an offence of a very specific character. That offence has two elements - conduct which threatens the survival of a national, ethnical, racial or religious group and an intent to destroy that group as such.

20. Mr. President, that is not what this case is about - or, at least, it is not what the Federal Republic of Yugoslavia's case is about. The allegations made by the Federal Republic of Yugoslavia in its Application and request - even if they are to be treated as true - do not begin to suggest that the United Kingdom is committing or participating in the commission of genocide. As the Attorney-General has shown, the military action against targets in the Federal Republic of Yugoslavia is conduct far removed from what is prohibited by the Genocide Convention. There is no plausible evidence - nor could there be - that the United Kingdom has the intent required by the Convention and in their submissions yesterday, counsel for the Federal Republic of Yugoslavia did not attempt to adduce any.

21. The real substance of the Federal Republic of Yugoslavia's complaint is clear from its Application and it was made clear again in the submissions by its counsel yesterday. They accuse the United Kingdom of violating the Charter of the United Nations, the Geneva Conventions of 1949, the First Additional Protocol to those Conventions, and a wide variety of human rights treaties, not to mention the Convention on the Navigation of the Danube - to which neither the United Kingdom nor any of the other Respondents in these cases is a party. The Genocide Convention is mentioned only twice and then almost in passing.

22. None of the instruments on which the Federal Republic of Yugoslavia concentrates in its Application provides any basis for the jurisdiction of the Court and, as the Court held in 1993, (Application of the Convention on the Prevention and Punishment of the Crime of Genocide,I.C.J. Reports 1993, p. 3, paras 34-35; p. 325, paras. 34-36) allegations of their breach cannot be brought before the Court under the guise of an application based upon the Genocide Convention. That Genocide Convention is about mass murder, committed with the intent to destroy a racial, ethnic, religious or national group in whole or in part.

23. It is not about the legality of resort to force; it is not about the ordinary conduct of military operations; it is not about the disruption of electricity supplies and it is certainly not about navigation on the River Danube. By attempting to force a case about these issues into the mould of the Genocide Convention, the Federal Republic is not only abusing the process of the Court, it is distorting and undermining a Convention adopted to deal with the most horrifying crime known to mankind.

24. Mr. President, since Article IX cannot provide a basis for the jurisdiction of the Court in respect of allegations of anything other than genocide and no plausible allegation of genocide has been made, the Convention cannot furnish a prima facie basis for jurisdiction in this case.

2. The provisional measures must be sought for the purpose of protecting rights which are capable of being the subject of a judgment of the Court in the exercise of that jurisdiction

25. But, Mr. President, the Court has also recognized that when provisional measures are sought in a case in which a prima facie basis for jurisdiction exists only under an agreement like the Genocide Convention, the limitation upon the Court's jurisdiction has important implications for the scope of its power to indicate provisional measures. The purpose of provisional measures is, of course, to preserve rights which may form the subject of the Court's exercise of its jurisdiction. It was for that reason that, in the Genocide Convention case in 1993, the Court held that:

"having established the existence of a basis on which its jurisdiction might be founded, [the Court] 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 that jurisdiction" (emphasis added) (I.C.J. Reports 1993, p. 19, para. 35; see also second Order, I.C.J. Reports 1993, p. 342, paras. 35-36).

26. In that case, the Court found that the only basis on which the Applicant State had demonstrated a good arguable case was Article IX of the Genocide Convention. It therefore held that "the Court is . . . confined to the consideration of such rights  . . . as might form the subject-matter of a judgment of the Court in the exercise of its jurisdiction under Article IX" (p. 20, para. 38). In its second Order in the case, the Court observed that most of the rights which Bosnia-Herzegovina was seeking to protect arose not under the Genocide Convention but under other treaties and accordingly declined to indicate most of the measures requested.

27. The present case raises some strikingly similar issues. The nature of the rights which the Federal Republic of Yugoslavia seeks to protect is perhaps most clearly glimpsed in its letter to the Registrar, in which it speaks of instituting proceedings "for the violation of the obligation not to use force". It was also clear in the speeches yesterday by counsel for the Federal Republic of Yugoslavia, who referred to rights not to be subjected to the unlawful use of force, rights under the Geneva Conventions, rights under human rights treaties, rights under customary international law. Professor Suy said that these rights could not be regarded as ridiculous, non-existent, illusory or indeterminate. Mr. President, that is a matter for argument. But what is not in doubt is that these rights cannot be regarded as arising under the Genocide Convention.

28. The measures requested in this case have nothing to do with the preservation of rights under the Genocide Convention. It cannot be the case, Mr. President, that whenever a State becomes party to an armed conflict it has only to invoke the Genocide Convention and make an unsubstantiated accusation against its adversary for the Court to be able to call upon that adversary to cease military operations. The jurisdictional prerequisites for the indication of interim measures identified by the Court mean that the Court should indicate such measures in a case where the Genocide Convention is the only possible basis for jurisdiction only if it is satisfied that the Applicant has made out a plausible case that conduct amounting to genocide is taking place or is threatened. Unlike Bosnia's case against the Federal Republic of Yugoslavia, that is self-evidently not the case here.

3. There is no urgent threat to rights which might form the basis of a judgment of the Court

29. Finally, Mr. President, even if there was any dispute between the Parties regarding rights under the Genocide Convention, the Applicant has wholly failed to demonstrate that there is a threat to its rights under that Convention. Rather than seek to fill this gap, Professor Suy attempted to get round it by inviting the Court to indicate measures to prevent the Parties aggravating or extending the dispute. The Court has, of course, indicated measures of that kind in past cases where force has been used. It is not, however, a general formula to be used to deal with all and any use of force by one or more of the parties to a case. One must first identify a dispute in respect of which there is a prima facie basis for jurisdiction and then show that recourse to force - actual or threatened - may aggravate or extend that dispute. That is not the case here.

30. Moreover, Mr. President, the Applicant has not asked you to prevent the Parties from aggravating or extending a dispute. It has asked you - and the Agent of the Federal Republic of Yugoslavia expressly repeated this request yesterday - to call on one Party to cease all operations. The dangers of such a measure and the effect which it would have on the real victims of events in Kosovo were graphically demonstrated by the Attorney-General earlier this afternoon.

31. Mr. President, that concludes my submissions and I would now ask you to call upon the Attorney-General to sum up for the United Kingdom.

The VICE-PRESIDENT, acting President: Thank you, Professor Greenwood. The Attorney-General, please.

Mr. MORRIS: Mr. President, distinguished Members of the Court, that concludes the argument for the United Kingdom. Would you however allow me to summarize it in the following five points?

First, this Application by the Federal Republic of Yugoslavia is not made with the intention of procuring a judgment on disputed points of fact or law, but is no more than a launching pad for an attempt to secure, under colour of urgency, an order of provisional measures.

Secondly, the proof of that is that on the one hand the indiscriminate lack of coherence between the allegations of breach and the jurisdictional base, and on the other hand the unconscionable attempt to keep the Court from looking into the Applicant's own conduct and consequences.

Thirdly, but on top of that the request for provisional measures is itself wholly defective. It fails all three of the conditions laid down by the Court for the exercise of this special power. The Applicant's attitude towards them is cavalier and disrespectful of the Court.

Fourthly, even if there were an arguable jurisdictional base, and even if the Applicant had made a credible showing of the risk of irreparable prejudice (neither of which we concede), the Court would still not consider granting a one-sided and tendentious request for provisional measures without enquiring into their likely effect. In this case, the likely effect - and no doubt the intended effect - of the Applicant's request is to procure for itself a free hand to complete its odious campaign of "ethnic cleansing".

Fifth, finally, the Court should in any event decline on general principles to exercise its discretionary powers on the request of an Applicant who so obviously comes to it with unclean hands.

The United Kingdom therefore formally requests the Court summarily to dismiss the request for the indication of provisional measures submitted by the Federal Republic of Yugoslavia, and this conclusion will be submitted in written form by the Agent.

Thank you.

The VICE-PRESIDENT, acting President: Thank you, Attorney-General. That concludes the first round in the case between Yugoslavia and the United Kingdom. The Court will take a short break for 15 minutes and resume to hear the submissions of the United States.