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.

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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:

"5. Should there be several parties in the same interest, they shall, for the purpose of the preceding provisions, be reckoned as one party only. Any doubt upon this point shall be settled by the decision of the Court."

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:

"I solemnly declare that I will perform my duties and exercise my powers as judge honourably, faithfully, impartially and conscientiously."

 

The VICE-PRESIDENT, acting President: Thank you. Mr. Duinslaeger.

Mr. DUINSLAEGER:

"I solemnly declare that I will perform my duties and exercise my powers as judge honourably, faithfully, impartially and conscientiously."

The VICE-PRESIDENT, acting President: Thank you. Mr. Lalonde.

M. LALONDE:

«Je déclare solennellement que je remplirai mes devoirs et exercerai mes attributions de juge en tout honneur et dévouement, en pleine et parfaite impartialité et en toute conscience.»

The VICE-PRESIDENT, acting President: Thank you. Mr. Gaja.

M. GAJA :

«Je déclare solennellement que je remplirai mes devoirs et exercerai mes attributions de juge en tout honneur et dévouement, en pleine et parfaite impartialité et en toute conscience.»

The VICE-PRESIDENT, acting President: Mr. Torres Bernárdez.

Mr. TORRES BERNÁRDEZ :

"I solemnly declare that I will perform my duties and exercise my powers as judge honourably, faithfully, impartially and conscientiously."

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.

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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 Government of the Federal Republic of Yugoslavia requests the International Court of Justice to adjudge and declare:

- by taking part in the bombing of the territory of the Federal Republic of Yugoslavia, [the Respondent] has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use force against another State;

- by taking part in the training, arming, financing, equipping and supplying terrorist groups, i.e. the so-called 'Kosovo Liberation Army', [the Respondent] has acted against the Federal Republic of Yugoslavia in breach of its obligation not to intervene in the affairs of another State;

- by taking part in attacks on civilian targets, [the Respondent] has acted against the Federal Republic of Yugoslavia in breach of its obligation to spare the civilian population, civilians and civilian objects;

- by taking part in destroying or damaging monasteries, monuments of culture, [the Respondent] has acted against the Federal Republic of Yugoslavia in breach of its obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people;

- by taking part in the use of cluster bombs, [the Respondent] has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering;

- by taking part in the bombing of oil refineries and chemical plants, [the Respondent] has acted against the Federal Republic of Yugoslavia in breach of its obligation not to cause considerable environmental damage;

- by taking part in the use of weapons containing depleted uranium, [the Respondent] has acted against the Federal Republic of Yugoslavia in breach of its obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage;

- by taking part in killing civilians, destroying enterprises, communications, health and cultural institutions, [the Respondent] has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights;

- by taking part in destroying bridges on international rives, [the Respondent] has acted against the Federal Republic of Yugoslavia in breach of its obligation to respect freedom of navigation on international rivers;

- by taking part in activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, [the Respondent] has acted against the Federal Republic of Yugoslavia in breach of its obligation not to deliberately inflict on a national group conditions of life calculated to bring about its physical destruction, in whole or in part;

- [the Respondent] is responsible for the violation of the above international obligations;

- [the Respondent] is obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia;

- [the Respondent] is obliged to provide compensation for the damage done to the Federal Republic of Yugoslavia and to its citizens and juridical persons."

 

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:

"If the proposed measure were not to be adopted, there will be new losses of human life, further physical and mental harm inflicted on the population of the Federal Republic of Yugoslavia, further destruction of civilian targets, heavy environmental pollution and further physical destruction of the people of Yugoslavia."

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 Respondent] 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."

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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.

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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:

- by taking part in the bombing of the territory of the Federal Republic of Yugoslavia, the Respondents has acted against the Federal Republic of Yugoslavia in breach of their obligation not to use force against another State;

- by taking part in the training, arming, financing, equipping and supplying the so-called terrorist groups, i.e. the 'Kosovo Liberation Army', the Respondents have acted against the Federal Republic of Yugoslavia in breach of their obligation not to intervene in the affairs of another State;

- by taking part in attacks on civilian targets, the Respondents have acted against the Federal Republic of Yugoslavia in breach of their obligation to spare the civilian population, civilians and civilian objects;

- by taking part in destroying or damaging monasteries, monuments of culture, the Respondents have acted against the Federal Republic of Yugoslavia in breach of their obligation not to commit any act of hostility directed against historical monuments, works of art or places of worship which constitute cultural or spiritual heritage of people;

- by taking part in the use of cluster bombs, the Respondents have acted against the Federal Republic of Yugoslavia in breach of their obligation not to use prohibited weapons, i.e. weapons calculated to cause unnecessary suffering;

- by taking part in the bombing of oil refineries and chemical plants, the Respondents have acted against the Federal Republic of Yugoslavia in breach of their obligation not to cause considerable environmental damage;

- by taking part in the use of weapons containing depleted uranium, the Respondents have acted against the Federal Republic of Yugoslavia in breach of their obligation not to use prohibited weapons and not to cause far-reaching health and environmental damage;

- by taking part in killing civilians, destroying enterprises, communications, health and cultural institutions, the Respondents have acted against the Federal Republic of Yugoslavia in breach of their obligation to respect the right to life, the right to work, the right to information, the right to health care as well as other basic human rights;

- by taking part in destroying bridges on international rives, the Respondents have acted against the Federal Republic of Yugoslavia in breach of their obligation to respect freedom of navigation on international rivers;

- by taking part in activities listed above, and in particular by causing enormous environmental damage and by using depleted uranium, the Respondents have acted against the Federal Republic of Yugoslavia in breach of their obligation not to deliberately inflict on a national group conditions of life calculated to bring about their physical destruction, in whole or in part;

- the Respondents are responsible for the violation of the above international obligations;

- the Respondents are obliged to stop immediately the violation of the above obligations vis-à-vis the Federal Republic of Yugoslavia;

- the Respondents are obliged to provide compensation for the damage done to the Federal Republic of Yugoslavia and to its citizens and juridical persons.

The basic elements of the case are as follows:

1. The Court has jurisdiction to decide on the claim.

2. The use of force against the Federal Republic of Yugoslavia is illegal.

3. Nothing can justify the use of force against the Federal Republic of Yugoslavia.

4. 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.

5. The acts of force are imputable to the Respondents.

6. There are facts proving the greatest urgency concerning provisional measures of protection and existence of irreparable prejudice.

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:

"In contemporary international law, as codified in the 1969 Vienna Convention on the Law of Treaties (Articles 53 and 64), the prohibition enunciated in Article 2(4) of the Charter is part of jus cogens, i.e., it is accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same peremptory character. Hence, universal jus cogens, like the prohibition embodied in Article 2(4), cannot be contracted out of at the regional level. Further, the Charter prohibition of the threat or use of armed force is binding on States both individually and as members of international organizations, such as NATO, as well as on those organizations themselves." (Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, EJIL, 1999, Vol. 10, No. 1.)

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:

"In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail."

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:

"The Treaty does not affect, and shall not be interpreted as affecting, in any way the rights and obligations under the Charter of the Parties which are Members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security."

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:

"No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law."

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:

"The Court also notes that Nicaragua is accused by the 1985 finding of the United States Congress of violating human rights . . .

"while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect. With regard to the steps actually taken, the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or again with the training, arming and equipping of the contras. The Court concludes that the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States, and cannot in any event be reconciled with the legal strategy of the respondent State, which is based on the right of collective self-defence." (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 134-135, paras. 267 and 268.)

Professor Schachter is quite clear in his "International Law in Theory and Practice", published in 1991. On page 128, he says:

"International law does not, and should not, legitimize the use of force across national lines except for self-defence (including collective self-defence) and enforcement measures ordered by the Security Council. Neither human rights, democracy or self-determination are acceptable legal grounds for waging war, nor for that matter, are traditional just causes or righting wrongs. This conclusion is not only in accord with the UN Charter as it was originally understood; it is also in keeping with the interpretation adopted by the great majority of States at the present time."

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-à-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 OSCE Mission has made an important contribution to stability in Kosovo, and it is with sadness that I have to withdraw the Mission. As OSCE Chairman-in-Office, responsible for safety of approximately 1,400 verifiers from many different countries, I do, however, have no other choice in the present situation.

My decision has been made in the light of the increased violence of Kosovo, of which both Yugoslav troops and the KLA are to blame. The build up of Yugoslav troops in Kosovo in breach of the October Agreement has, however, unnecessarily aggravated the situation further, and has been a decisive element in my considerations." (Letter of OSCE Chairman-in-Office of 19 March 1999 addressed to the President of the Federal Republic of Yugoslavia, Ann. 5.)

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:

"Internalized DU delivers radiation wherever it migrates in the body. Within the body, alfa radiation is the most important contributor to the radiation hazard posed by DU. The radiation dose to critical body organs depends on the amount of time that DU resides in the organs. When this value is known or estimated, cancer and hereditary risk estimates can be determined." (Health and Environmental; Consequences of Depleted Uranium Use in the US Army: Technical Report, p. 108, Ann. 8.)

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:

"The parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all, and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attached by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of force, to restore and maintain the security of the North Atlantic area."

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:

"When decisions have to be made, action is agreed upon on the basis of unanimity and common accord. There is no voting or decision by majority. Each nation represented at the Council table or any of its subordinate committees retains complete sovereignty and responsibility for its own decision" (NATO Handbook, Brussels, 1998. p. 37).

5.4. And about the role of integrated military forces, the Handbook informs:

"In accordance with the fundamental principles which govern the relationship between political and military institutions within democratic states, the integrated military structure remains under political control and guidance at the highest level at all times." (Ibid., p. 245.)

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.

First: The attack on the territory of Yugoslavia involves a continuing breach of Article 2, paragraph 4, of the United Nations Charter.

Secondly: The attack cannot be justified as individual or collective self-defence and is not authorized by any Security Council resolution.

Thirdly:  Humanitarian intervention, the justification belatedly offered by the respondent States, has no legal authenticity whatsoever.

Fourthly:  The reliance upon humanitarian intervention is in any case - in any case -  invalidated by the unlawful modalities of the aerial bombardment, and the means adopted by the respondent States are extremely disproportionate to the declared aims of the action.

Fifthly: The few exponents of humanitarian intervention invest the doctrine with a profile which is totally unlike this bombing campaign.

Sixthly: The command structure of NATO constitutes an instrumentality of the respondent States, acting as their agent.

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 principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter."

The document then has an official commentary:

"No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. Also, no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the regime of another State, or interfere in civil strife in another State.

The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention.

Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.

Nothing in the foregoing paragraphs shall be construed as affecting the relevant provisions of the Charter relating to the maintenance of international peace and security."

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."

IV. Reliable sources give no recognition to the doctrine of humanitarian intervention

In my submission, the respondent States cannot rely upon the alleged doctrine of humanitarian intervention. There is no evidence of such a development in customary international law. Moreover, officials of the respondent States have, in fact, sought to rely upon resolutions of the Security Council, and not a doctrine of humanitarian intervention. I refer to the expression viewed by the Foreign Secretary of the United Kingdom, Mr. Robin Cook, on 19 October 1998, and the speech in Parliament by Mr. Blair, Prime Minister, on 23 March this year.

Reliable authority covering a period of 30 years has failed to recognize a principle of humanitarian intervention.

I shall review the relevant authorities in chronological order.

The first is that of Dr. Marjorie Whiteman, editing the famous Digest of International Law in accordance with United States practice (Vol. 12, pp. 204-215 (1971) (Tab 3)). It is of course an official publication of the United States Department of State. Dr. Whiteman sets out various opinions - some in favour, some against - but she offers no endorsements of the principle by the United States Government. That is in 1971.

Secondly, there are the views of Professor Schwebel, as he then was, in the Hague Academy Lectures of 1972. In his substantial review of the subjects of aggression and intervention, Mr. Schwebel did not make a single reference to humanitarian intervention. That is in 1972.

Thirdly, there is the view of Professor Oscar Schachter, which appears in the Michigan Law Review (Vol. 82 (1984), p. 1629). Professor Schachter wrote that "governments by and large (and most jurists) would not assert a right to forcible intervention to protect the nationals of another country from atrocities carried out in that country".

Fourthly, there is the British Foreign Office view expressed in Foreign Policy Document No. 148. This is set out in full in the British Year Book of International Law, Volume 57 (1986), beginning at page 614.

The key passage reads thus:

"II.22. In fact, the best case that can be made in support of humanitarian intervention is that it cannot be said to be unambiguously illegal. To make that case, it is necessary to demonstrate, in particular by reference to Article 1(3) of the UN Charter, which includes the promotion and encouragement of respect for human rights as one of the Purposes of the United Nations, that paragraphs 7 and 4 of Article 2 do not apply in cases of flagrant violations of human rights. But the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention, for three main reasons: first, the UN Charter and the corpus of modern international law do not seem specifically to incorporate such a right; secondly, state practice in the past two centuries, and especially since 1945, at best provides only a handful of genuine cases of humanitarian intervention, and, on most assessments, none at all; and finally, on prudential grounds, that the scope for abusing such a right argues strongly against its creation. As Akehurst argues, 'claims by some states that they are entitled to use force to prevent violations of human rights may make other states reluctant to accept legal obligations concerning human rights'. In essence, therefore, the case against making humanitarian intervention an exception to the principle of non-intervention is that its doubtful benefits would be heavily outweighed by its costs in terms of respect for international law." (Footnote omitted.) (P. 619.)

I next come to the opinion of Professor Yoram Dinstein, in his monograph on War, Aggression and Self-Defence (CUP, 1988, at p. 89 (Tab 4)). Professor Dinstein concluded that: "Nothing in the Charter substantiates the right of one State to use force against another under the guise of ensuring the implementation of human rights." (Ibid., p. 89.)

There is then the view of Professor Randelzhofer of Germany, in the volume edited by Bruno Simma, the Charter of the United Nations, A Commentary (OUP, 1994, (Tab 6) at pp. 123-124).

Professor Randelzhofer considers that there is no room for the concept of humanitarian intervention either in the Charter or in customary law.

And lastly, we have the views of Professor Bruno Simma, writing in the European Journal of International Law (Vol. 10 (1999) available on the Internet). He regards the use of force for humanitarian purposes as incompatible with the United Nations Charter in the absence of the authorization of the Security Council (Tab 8).

Mr. President, these sources cover a period of 30 years and constitute the careful opinions of well-known authorities of various nationalities.

V. On the facts, this attack on Yugoslavia cannot qualify as humanitarian intervention

Mr. President, aside from the legal issues, there are very strong grounds for the disqualification of the so-called air strikes as a humanitarian intervention.

First: There is no genuine humanitarian purpose. The action against Yugoslavia, as many diplomats know, forms part of an ongoing geopolitical agenda unrelated to human rights. When in 1995, 600,000 Serbs were forced out of the Krajina, the respondent States stayed silent.

Secondly: The modalities selected disqualify the mission as a humanitarian one. Bombing the populated areas of Yugoslavia and using high performance ordnance and anti-personnel weapons involve policies completely inimical to humanitarian intervention. Moreover, bombing from a height of 15,000 feet inevitably endangers civilians, and this operational mode is intended exclusively to prevent risks to combat personnel.

The population of Yugoslavia as a whole is being subjected to inhumane treatment and punishment for political reasons. One thousand two hundred civilians - 1,200 civilians -  have been killed so far, and 4,500 seriously injured.

Some groups of civilians, including television personnel - including television personnel - have been deliberately targeted. Several attempts have been made to assassinate the Head of State of Yugoslavia. And so, in our view, these modalities clearly disqualify the claim to act on humanitarian grounds.

Thirdly: The selection of a bombing campaign is disproportionate to the declared aims of the action. Thus, in order to protect one minority in one region, all the other communities in the whole of Yugoslavia are placed at risk of intensive bombing.

Fourthly: The pattern of targets and the geographical extent of the bombing indicates broad political purposes unrelated to humanitarian issues.

 

VI. Major considerations of international public order disqualifying the bombing as a humanitarian action

Mr. President, in addition to these factual elements, there are major considerations of international public order which, both individually and cumulatively, disqualify the bombing of Yugoslavia as a humanitarian action.

First: As the respondent States know very well, the so-called crisis originated in the deliberate fomenting of civil strife in Kosovo and the subsequent intervention by NATO States in the civil war. This interference is continuing. In such conditions those States responsible for the civil strife and the intervention are estopped from pleading humanitarian purposes.

In this context it is relevant to recall that the International Law Commission draft of 1980 on State Responsibility provides in Article 33 (in material part) that:

"2. In any case, a state of necessity may not be invoked by a State as a ground for precluding wrongfulness: . . .

. .  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) if the State in question has contributed to the occurrence of the state of necessity." (YILC, 1980, Vol. II (Part Two), pp. 34-52).

Secondly: The threats of massive use of force go back seven months and have throughout been intended to produce not a genuine peaceful settlement but a dictated result. The massive air campaign was planned some time ago for the purposes of general coercion in order to force Yugoslavia to accept NATO demands. NATO first threatened air strikes in October of last year, and this is a matter of public knowledge.

Thirdly: There has been no attempt to obtain Security Council authorization. Members of the Court if this was an obviously humanitarian intervention acceptable to the international community as a whole, why was it not possible to ask for the authorization of the Security Council.

Fourthly: There is no evidence that the jus cogens principle concerning the use of force has been replaced by any other principle of jus cogens.

 

VII. The exponents of humanitarian intervention in the literature envisaged a radically different model

Mr. President, my next point is this. If the views of the few exponents of humanitarian intervention are studied, it becomes clear that they did not envisage anything like the NATO bombing of the populated areas of Yugoslavia, the damage to the system of health care, the destruction of the civilian infrastructure, the use of prohibited weapons, and the destruction of cultural property on a large scale.

Finally, the respondent States are jointly and severally responsible for the actions of the NATO military command structure, which in my submission constitutes an instrumentality of the respondent States.

Mr. President, I would ask you to give the floor to my colleague Professor Paul de Waart.

The VICE-PRESIDENT, acting President: Thank you, Mr. Brownlie. Perhaps the Court may take a short adjournment now. The Court will adjourn for 15 minutes.

The Court adjourned from 11.25 to 11.45 a.m.

The VICE-PRESIDENT, acting President: Please be seated. I give the floor now to Mr. de Waart.

Mr. de WAART: Mr. President, distinguished Members of the Court,

1. Introductory remarks

It is my task to review the legal issues concerning the threat of the use of force by the respondent States for exacting from the Federal Republic of Yugoslavia (FRY) its signing of the draft Interim Agreement for Peace and Self-Government in Kosovo, hereafter the Interim Agreement. These legal issues are the law of treaties, the scope and content of the Interim Agreement, fundamental principles of international law at stake in the so-called coercive diplomacy, and the absence of a "state of necessity" respectively.

I will argue that the threat of the use of force and the subsequent use of force by the respondent States after Yugoslavia's refusal to sign, violates the Charter of the United Nations and the Vienna Convention on the Law of Treaties. Even if Yugoslavia would have signed, the Interim Agreement would have been null and void under current international law.

2. Law of Treaties

According to the 1969 Vienna Convention on the Law of Treaties, Mr. President, "[A] treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations" (Art. 52).

In his Foreword to Malawer's book Imposed Treaties and International Law, published in 1977, Professor R. R. Baxter stated:

"the remarkable reception of the Vienna Convention on the Law of Treaties into customary international law had undoubtedly given a firm place to Article 52 in general international law. But neither Article 2, paragraph 4, of the Charter, nor Article 52 of the Vienna Convention has solved the problem of imposed treaties."

Malawer defined an imposed treaty "not only as a treaty ending hostilities as described above, but also as any international agreement concluded as the result of the aggressive use of military force" (p. 9). According to him, to Malawer, "force" in Article 52 should be interpreted anyhow as "military force" (p. 162). According to Meinhard Schröder, the wording of Article 52 "would include not only unjustified physical or armed force, but also economic and political pressure" (emphasis added) ("Treaties, Validity", in R. Bernhardt, Encyclopedia of Public International Law, instalment 7 (1984), p. 513).

The threat or use of force against the Federal Republic of Yugoslavia in order to compel it to sign the Rambouillet draft Agreement in Kosovo was unjustified, for it implied a serious violation of the principles of international law embodied in the United Nations Charter, particularly the principle of sovereign equality of all its members, the duty of States to settle their international disputes peacefully and their duty not to intervene in matters which are essentially in the domestic jurisdiction of States.

The present humanitarian catastrophe, which is world-wide deeply regretted, emerged in the wake of the unbalanced interpretation and application of the above fundamental principles of international law by the Contact Group, particularly its NATO Members. This Group, as you know, consists of the Foreign Ministers of France, Germany, Italy, the Russian Federation, the United Kingdom and the United States. Admittedly, the implementation articles of the Interim Agreement recognize the territorial integrity and political independence of the Federal Republic of Yugoslavia. However, the NATO Members added fuel to the UCK separatism by their one-sided threatening of the Federal Republic of Yugoslavia with aerial bombardments if it did not accept the Interim Agreement. This appears from the content of the Interim Agreement. The Contact Group for Yugoslavia drafted the Interim Agreement. The draft was submitted to the three parties involved - the Federal Republic of Yugoslavia, the Republic of Serbia and to Kosovo at Rambouillet and Kleber successively, in February and March 1999. The Federal Republic of Yugoslavia and Serbia refused to sign. Only two of the three witnesses - the United States and the European Union - signed the Interim Agreement. The third witness - the Russian Federation - refused to do so.

As appears from its outline, the chapters dealing with the implementation by a NATO-led military force in Kosovo form the hard kernel of the Interim Agreement, and I dwell upon it in a footnote, which I will not read out now1. The text of part of the Interim Agreement was downloaded from the Internet and submitted as an annex to my speech. Appendix B of Chapter 7 deals with the status of the Multi-national Military Implementation Force (KFOR) - Kosovo FOR, probably. According to its final paragraph, the provisions of Annex B shall remain in force until completion of the operation or as the parties and NATO may otherwise agree (p. 43 of the Interim Agreement).

"Operation" means, according to the draft,

"the support, implementation, presentation, and participation by NATO and NATO personnel in furtherance of this Chapter the purposes of which are to establish a durable cessation of hostilities, to provide for the support and authorization of the Kosovo Forces (KFOR)" (Ann. B, para. 1 (d); Interim Agreement, p. 41).

Moreover, the Interim Agreement states that the purposes of the obligation of the parties are as follows:

"(b) to provide for the support and authorization of the KFOR and in particular to authorize the KFOR to take such actions as are required, including the use of necessary force, to ensure compliance with this Chapter and the protection of KFOR, Implementation Mission (IM), and other international organizations, agencies, non-governmental organizations involved in the implementation of this Agreement, and to contribute to secure environment;

(c) to provide, at no cost, the use of all facilities and services required for the deployment operations and support of the KFOR."

The outline shows that, quantitatively speaking, the gist of the Interim Agreement was not so much the political part - democratic self-government in Kosovo - but the implementation part - the encampment of NATO forces in Kosovo.

At the first conference in Rambouillet progress was made. At the second conference in Kleber the Yugoslavian delegation was asking to continue to agree on the political part and then to discuss the implementation part without the pressure of a foreign military presence. The position of some States in the Contact Group, however, was that the implementation part should be agreed first, including the foreign military presence.

Mr. President, the NATO Members overlooked that no self-respecting sovereign State, not defeated as an aggressor State in an inter-State conflict, may be expected to accept a foreign military force on its territory which have a mandate as if it is an occupation force.

It is crystal clear that the sovereignty of the Federal Republic of Yugoslavia and the admittance of NATO forces in Kosovo are matters within the domestic jurisdiction of the Federal Republic of Yugoslavia. The Interim Agreement rightly recognized it itself, because it stated that:

- the international community has a commitment to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia (Interim Agreement, pp. 1 and 4);

- and the Implementation Mission in Kosovo required an invitation by the parties (i.e., the Federal Republic of Yugoslavia, Serbia and Kosovo) (Interim Agreement, p. 25).

Nevertheless, the draft looks like a dictated peace treaty with a defeated aggressor State, to whom the provisions of the Vienna Convention on the Law of Treaties do not apply (Article 75). Illustrative is paragraph 8 of Appendix B of the Rambouillet draft: Status of Multi-National Military Implementation Force, which reads:

"NATO personnel shall enjoy, together with their vehicles, vessels, aircraft and equipment, free and unrestricted passage and unimpeded access throughout the Federal Republic of Yugoslavia [not only Kosovo] including associated airspace and territorial waters. This shall include, but not be limited to, the right of bivouac, maneuver, billet, and utilization of any areas or facilities as required for support, training, and operations." (Interim Agreement, p. 42.)

What is more, the final authority to interpret Chapter 2 of the Interim Agreement - devoted to Police and Civil Public Security - is the Chief of the Implementation Mission (CIM) of the OSCE; the Final Authority to interpret Chapter 7 - devoted to Implementation II - is the KFOR Commander, whose determinations are binding on all parties and persons (draft Agreement, Chap. 7, Art. XV; see p. 38 of the Interim Agreement).

In sum, the Interim Agreement created an illegal stranglehold on the Federal Republic of Yugoslavia.

4. Fundamental principles of international law at stake

The Interim Agreement raised key questions in respect of relationship between a number of fundamental principles of international law, such as

 - sovereignty, territorial integrity and political independence of States;

 - the use of force in the context of humanitarian intervention by States under the umbrella of a treaty organization discussed before the break by Professor Brownlie.

The Security Council, acting under Chapter VII of the United Nations Charter, called upon the Federal Republic of Yugoslavia and the Kosovar Albanian leadership to achieve a political solution (resolution 1160 (1998) of 31 March 1998 and 1199 (1998) of 23 September 1998). It welcomed the agreement of 16 October 1998 between the Federal Republic of Yugoslavia and the OSCE in respect of establishing an OSCE verification mission in Kosovo (resolution 1203 (1998) of 24 October 1998). In so doing, it demanded immediate action of the Federal Republic of Yugoslavia and the Kosovo Albanian leadership to co-operate with international efforts to improve the humanitarian situation and to avert the impending humanitarian catastrophe.

5. No "state of necessity"

The principles, agreed upon on 6 May 1999 of the so-called G-8 - and the so-called G-8 consists of the G-7, i.e., Canada, France, Germany, Italy, Japan, United Kingdom and United States and, as No. 8, Russia - recognized the need of an agreement with the Federal Republic of Yugoslavia, i.e., its approval as a sovereign State.

The "Statement on Kosovo" issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Washington, DC on 23 and 24 April 1999 states that NATO's military action against the Federal Republic of Yugoslavia supports the political aims of the international community, which were reaffirmed in recent statements by the United Nations Secretary-General and the European Union: "a peaceful, multi-ethnic and democratic Kosovo where all its people can live in security and enjoy universal human rights and freedoms on an equal basis".

Neither the European Union nor the United Nations Secretary-General, however, has the power to authorize the NATO Members to enforce the support of the Federal Republic of Yugoslavia in respect of the above purposes through military action, and that on behalf of the international community. Even less, the NATO Members may dictate conditions on which there can be no compromise at all.

According to Article 53 of the United Nations Charter "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council". The comment on this Article in The Charter of the United Nations; A commentary (already mentioned) (Bruno Simma (ed.), OUP, 1994, p. 735), observes that there is a presumption that the Security Council has examined the limits of the competence of a regional organization at the preliminary stage of its authorization and that therefore the activity of the regional agency under Security Council authorization is not ultra vires. However, in the present case, such an examination and authorization by the Security Council is lacking. By starting the aerial bombardment the NATO acted ultra vires indeed.

NATO belongs to the category of traditional international organizations, which are "in essence based on inter-governmental co-operation of states which retain control of the decision-making and finance of the organization" (Peter Malanczuk, Akehurst's Modern Introduction to International Law, 7th revised ed. p. 95).

It is telling that the status of NATO forces is based upon an agreement between the Parties to the North Atlantic Treaty and not upon an agreement between the NATO and its Members. In other words, the NATO apparently has no implied powers.

NATO Member States have no right under the Washington Treaty to humanitarian intervention in Kosovo under the pretext of acting in a state of necessity. The ILC Draft on the State Responsibility already mentioned states unambiguously that a state of necessity may not be invoked by a State to defend the wrongfulness of an act unless

(a) the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril; and

(b) the act did not seriously impair an essential interest of the State towards which the obligation existed.

Moreover a state of necessity may not be invoked by a State as a ground for precluding wrongfulness, if, amongst other things, the international obligation with which the act of the State is not in conformity arises out of a peremptory norm of international law or if the State in question has contributed to the occurrence of the state of necessity. (International Legal Materials (1998), pp. 451-452; Th. Meron, Internal Strife: Applicable Norms and a Proposed Instrument, in Astrid Delissen and Gerard J. Tanja, Humanitarian Law of Armed Conflict: Challenges Ahead - Essays in Honour of Frits Kalshoven, Martinus Nijhoff Publishers, 1991).

The NATO Members contributed to the state of necessity themselves by their illegal and premature threat of the aerial bombardments. An analogous application of the draft Articles on State Responsibility to the relation between the Federal Republic of Yugoslavia, Serbia and Kosovo implies that Kosovo did not meet the conditions of Article 33, since the KCU contributed to the occurrence of the state of necessity.

The NATO aerial bombardments do not meet the criteria of Article 33 either. The bombardments were certainly not the only means. Some NATO States have had at their disposal a number of peaceful means for the settlement of disputes. The bombardments impair an essential interest of the Federal Republic of Yugoslavia. Finally but not lastly, the international prohibition of the use of force arises out of a peremptory norm of international law. Moreover, the threat or use of force is a prohibited countermeasure. (Art. 50, International Legal Materials (1998), pp. 457-458).

Reference may also be made to the famous 19th century Caroline case, which gave birth to the rule of customary international law that the doctrine of self-defence is limited to dangers which are "instant, overwhelming, leaving no choice of means, and no moment for deliberation" (Werner Meng, "The Caroline", in R. Bernhardt, Encyclopedia of Public International Law, volume one (1992), p. 538).

NATO States may not argue that a dispute on the use of force is a political dispute and that the Court should not consider political disputes. The Court rejected this argument, in my humble opinion quite rightly, in the United States-Iran case (I.C.J. Reports 1980, p. 19).

In the present case NATO Members cannot and may not take refuge behind the Security Council. It is telling that the recent G-8 Principles require the approval of the Security Council.

In sum, Mr. President, the respondent States violated the peremptory norm (jus cogens) of the prohibition of the use of force by participating in the aerial bombardment of the Federal Republic of Yugoslavia in order to compel this State to sign the Interim Agreement.

Thank you, Mr. President, distinguished Judges. I now ask you, Mr. President, to give the floor to my co-counsel, Mr. Suy.

The VICE-PRESIDENT, acting President: Thank you, Mr. de Waart. Mr. Suy, you have the floor now.

M. SUY : Monsieur le président, Madame et Messieurs de la Cour,

Introduction

L'honneur qui m'échoit de paraître une nouvelle fois devant la Cour est affecté par les circonstances dramatiques qui ont incité la République fédérale de Yougoslavie d'introduire la présente requête. L'attaque aérienne préméditée contre la résidence du chef de l'Etat dans le but de son élimination physique, le bombardement de l'ambassade de la République populaire de Chine s'ajoutent à tant d'autres exemples d'actes de violence commis en violation des normes fondamentales du droit international. Ils montrent que la Yougoslavie est en droit de demander d'urgence des mesures de protection de ses droits en litige. Une ordonnance de la Cour internationale de Justice indiquant des mesures conservatoires, des mesures provisoires pourrait ainsi constituer une contribution spécifique aux efforts diplomatiques en cours.

1. Qu'il me soit permis de souligner brièvement des analogies entre les circonstances dramatiques d'aujourd'hui, c'est-à-dire le recours à la force et ce qui s'est passé il y a soixante ans. A cette époque, l'Allemagne nazie menaçait d'envahir la Tchécoslovaquie si celle-ci ne consentait pas à accorder une grande autonomie au pays des Sudètes, faisant partie de la Tchécoslovaquie mais avec une large majorité de souche et d'expression allemande. Afin d'éviter une intervention armée, le Gouvernement de Prague, mais également celui le Royaume-Uni et la France cédèrent dans les accords de Munich. Le président Milosevic a voulu éviter un autre Munich et refusa dès lors de signer les accords de Rambouillet. Le négociateur Richard Holbrook lui disait en des termes très directs que, dans ce cas la Yougoslavie serait bombardée. Peu de mois après la signature des accords de Munich, Hitler réclama du Gouvernement de la Tchécoslovaquie l'incorporation du pays des Sudètes en Allemagne. Il disait aux autorités tchèques, que s'ils ne consentaient pas à cette incorporation, Prague serait bombardée. Aujourd'hui, soixante ans plus tard, la situation est donc pire. Nous assistons au bombardement - et non plus à la menace d'utiliser la force - afin de contraindre la Yougoslavie d'accepter un diktat. Cette régression du droit international, ce retour à la diplomatie de la canonnière par le moyen de missiles, en violation de la constitution que la communauté internationale s'est donnée après la défaite de l'Allemagne nazie, tout cela est de mauvaise augure pour l'état du droit et des relations internationales au seuil du XXI^e siècle.

2. Monsieur le président, j'aborderai maintenant les différents aspects des mesures provisoires. La Cour a eu à connaître, je crois de vingt et un cas, de demandes en mesures provisoires. Par conséquent, et comme il s'est formé une importante jurisprudence en la matière, je traiterai brièvement des aspects suivants : la compétence prima facie de la Cour, la sauvegarde des droits de chacun et l'urgence.

1. La compétence prima facie de la Cour

Chaque fois que la Cour est amenée à exercer son pouvoir d'indiquer des mesures conservatoires, elle doit s'assurer, et cela fait partie des «circonstances» mentionnées dans son Statut, qu'elle est prima facie compétente. On a toujours clairement distingué la compétence de la Cour pour ce qui est de statuer sur le fond (laquelle n'entre pas en ligne de compte à ce stade-ci de la procédure) et sa compétence pour ce qui est d'indiquer des mesures conservatoires.

Permettez-moi quand même de citer ce que la Cour a dit, et c'est une phrase classique dans l'affaire du Passage par le Grand-Belt (ordonnance du 29 juillet 1991, p. 15) :

«[en] présence d'une demande en indication de mesures conservatoires, point n'est besoin pour la Cour, avant de décider d'indiquer ou non de telles mesures, de s'assurer d'une manière définitive qu'elle a compétence quant au fond de l'affaire, mais elle ne peut indiquer ces mesures que si les dispositions invoquées par le demandeur semblent prima facie constituer une base sur laquelle la compétence de la Cour pourrait être fondée» (voir également l'affaire relative à la Convention de Vienne sur les relations consulaires (Paraguay c. Etats-Unis d'Amérique), ordonnance du 9 avril 1999, par. 23).

La Yougoslavie, Monsieur le président, invoque tout d'abord sa propre déclaration d'acceptation de la compétence de la Cour, faite le 25 avril 1999, récemment, conformément au paragraphe 2 de l'article 36 de son Statut, ainsi que les déclarations faites par le Royaume-Uni de Grande-Bretagne et d'Irlande du Nord (en 1969), les Pays-Bas (en 1956), la Belgique (en 1958), le Canada (en 1994), le Portugal (en 1955) et l'Espagne (en 1990).

Dans l'affaire de la Frontière terrestre et maritime entre le Cameroun et le Nigéria( mesures conservatoires), la Cour internationale de Justice a estimé que les déclarations faites conformément au paragraphe 2 de l'article 36 de son Statut «constituent prima facie une base sur laquelle sa compétence pourrait être fondée» (ordonnance du 15 mars 1996).

La Yougoslavie invoque, en outre, l'article IX de la convention pour la prévention et la répression du crime de génocide dont l'article IX dispose :

«Les différends entre les Parties contractantes relatifs à l'interprétation, l'application ou l'exécution de la présente Convention, y compris ceux relatifs à la responsabilité d'un Etat en matière de génocide ou de l'un quelconque des autres actes énumérés à l'article III, seront soumis à la Cour internationale de Justice, à la requête d'une partie au différend.»

Dans ses ordonnances du 3 avril et du 13 septembre 1993, la Cour a estimé que l'article IX de la convention sur le génocide à laquelle le demandeur et le défendeur sont parties semblait «constituer une base sur laquelle la compétence de la Cour pourrait être fondée» (C.I.J. Recueil 1993, p. 16, par. 26, et p. 342, par. 36).

Dès lors et de l'avis de la République fédérale yougoslave, il ne semble pas exister de doute quant à la compétence prima facie de la Cour à indiquer des mesures conservatoires que les parties contre lesquelles la demande est formée devraient prendre ou exécuter.

2. La sauvegarde des droits de chacun

Dans l'article 41 du Statut de la Cour les mesures conservatoires concernent le «droit de chacun». Le texte anglais est cependant beaucoup plus précis puisqu'il parle de «provisional measures which ought to be taken to preserve the respective rights of either party».

La nécessité de sauvegarder les droits en litige constitue la base juridique qui permet à la Cour d'indiquer les mesures. La jurisprudence de la Cour a cependant à ce sujet évolué. Dernièrement, votre Cour était assez portée à indiquer des mesures conservatoires en cas de conflit armé ou d'incident violent. Elle a introduit dans sa jurisprudence la notion de la non-aggravation du différend et la nécessité d'éviter des incidents.

Et je cite à l'appui de cette façon de voir l'affaire des Activités militaires et paramilitaires au Nicaragua et contre celui-ci (Nicaragua c. Etats-Unis d'Amérique), dans laquelle la Cour, à l'unanimité, a indiqué une mesure conservatoire prévoyant que :

«les Gouvernements des Etats-Unis d'Amérique et de la République du Nicaragua veillent l'un et l'autre à ce qu'aucune mesure d'aucune sorte ne soit prise qui puisse aggraver ou étendre le différend soumis à la Cour» (C.I.J. Recueil 1984, p. 187, par. 41, B 3).

Dans l'affaire du Différend frontalier entre le Burkina Faso et la République du Mali, la Chambre constituée par la Cour disait :

«Considérant que, indépendamment des demandes présentées par les Parties en indication de mesures conservatoires, la Cour ou, par conséquent la Chambre dispose en vertu de l'article 41 du Statut du pouvoir d'indiquer des mesures conservatoires en vue d'empêcher l'aggravation ou l'extension du différend quand elle estime que les circonstances l'exigent.» (C.I.J. Recueil 1986, p. 9, par. 18.)

Enfin, l'affaire de la Frontière terrestre et maritime entre le Cameroun et le Nigéria (mesures conservatoires, ordonnance du 15 mars 1996) mérite également d'être citée. Ici, votre Cour

«est d'avis qu'il existe un risque que des événements de nature à aggraver ou à étendre le différend puissent se reproduire, rendant ainsi toute solution de ce différend plus difficile» (C.I.J. Recueil 1996, p. 23, par. 42; les citations apparaissent dans mon texte écrit).

Monsieur le président, dans toutes les affaires où il était question d'un conflit armé ayant entraîné des pertes en vies humaines et des dommages matériels, la protection des droits respectifs des parties comprend la nécessité pour celles-ci d'éviter toute aggravation ou extension du différend, comme de prévenir tout affrontement.

La Cour ne peut exercer sa compétence et indiquer des mesures conservatoires que si elle estime pour autant que les circonstances l'exigent, pour sauvegarder les droits de chacune des parties. Il importe donc d'identifier les droits susceptibles d'être protégés. A regarder la requête de la République fédérale de Yougoslavie, et plus particulièrement le relevé d'obligations internationales dont la Yougoslavie prétend qu'elles ont été violées, force est de constater qu'il s'agit de droits qui ne sont ni ridicules comme l'a dit une certaine presse récemment, ni existants, ni illusoires, ni indéterminés. Il est vrai que les actions préjudiciables aux droits de la Yougoslavie ont été et continuent d'être commises depuis bientôt deux mois. Mais peut-on en conclure, Monsieur le président, qu'il n'y a plus d'urgence, alors que ces actes se poursuivent en s'intensifiant de jour en jour ? Peut-on dire que les droits que la Yougoslavie invoque en vertu du droit international ne méritent pas ou plus d'être préservés puisqu'ils sont de toute façon déjà bafoués et violés ?

La République fédérale de Yougoslavie estime que les circonstances de l'espèce, à savoir l'intervention militaire massive et continue par des pays appartenant à l'Alliance atlantique, au moyen de bombardements aériens causant des dégâts considérables à des objectifs civils, à des objectifs protégés ainsi qu'à la population civile, comme le démontre la documentation soumise à la Cour, exigent que la Cour internationale de Justice indique des mesures conservatoires conformément à l'article 41 du Statut de la Cour.

Le dernier point que je veux aborder brièvement c'est la question de l'urgence.

5. L'urgence

L'article 74 du Règlement de la Cour dispose notamment que la demande en indication de mesures conservatoires a priorité sur toutes autres affaires et que la Cour est immédiatement convoquée pour statuer d'urgence sur cette demande. Dans l'affaire de la Frontière terrestre et maritime, votre Cour a affirmé que des mesures conservatoires «ne sont justifiées que s'il y a urgence» (C.I.J. Recueil 1996, p. 22, par. 35).

Dans l'affaire du Passage par le Grand-Belt, la Cour a donné une définition de l'urgence que je voudrais citer:

«Considérant que les mesures conservatoires visées à l'article 41 du Statut sont indiquées «en attendant l'arrêt définitif» de la Cour au fond et ne sont par conséquent justifiées que s'il y a urgence, c'est-à-dire s'il est probable qu'une action préjudiciable aux droits de l'une ou l'autre Partie sera commise avant qu'un tel arrêt définitif ne soit rendu.» (C.I.J. Recueil 1991, p. 17, par. 23.)

Dans l'affaire de la Frontière terrestre et maritime, le Nigéria a soutenu que les circonstances de l'affaire, et notamment le fait que des efforts afin d'arriver à une solution diplomatique étaient menés, prouvaient qu'il n'y avait pas d'urgence. La Cour n'a pas accepté cette façon de voir les choses. Vous avez tout d'abord considéré que cet effort de médiation «ne prive ... pas la Cour des droits et devoirs qui sont les siens dans l'affaire portée devant elle» (C.I.J. Recueil 1996, p. 22, par. 37). Mais la Cour ajoute tout de suite un critère important pour estimer qu'il y a urgence :

«il y a eu des incidents militaires et  ... ceux-ci ont causé des souffrances, des pertes en vies humaines - tant militaires que civiles -, des blessés et des disparus, ainsi que des dommages matériels importants» (ibid., par. 38).

Ceci me permet Monsieur le président, Messieurs les Membres de la Cour de conclure brièvement; quand on considère l'ensemble des faits qui se sont produits depuis le 25 mars en République fédérale de Yougoslavie sous la forme de bombardements aériens de plus en plus intensifs par des pays appartenant à l'Alliance atlantique, causant de plus en plus de dommages civils et parmi la population civile, peut-on vraiment nier que la demande en indication de mesures conservatoires soit placée sous le signe de l'urgence ?

Je vous remercie, Monsieur le président, et je vous prie de donner maintenant la parole à Dr. Mitic.

The VICE-PRESIDENT, acting President: Thank you, Mr. Suy. Mr. Mitic, please.

Mr. MITIC: Mr. President, distinguished Members of the Court, the consequences which NATO aggression against Yugoslavia caused so far and continues to cause are tragic. Yugoslavia is suffering enormous loss of human life. There is a huge number of casualties, in particular among the civilian population, due to intentional, savage bombing of civilian facilities and residential areas by the NATO aggressor in order to deter and deprive the population of the basic conditions for life. Carbonized and mutilated bodies of innocent people lying in the debris of their destroyed homes; bodies of helpless sick people and children in hospitals; of workers in annihilated factories; of journalists and technical staff in radio and TV stations; of passengers using regular bus and railway services; of children on playgrounds and in schools; of ordinary passers-by in streets which are day and night showered with bombs; of killed and wounded Serbian and Albanian refugees in targeted reception centres and camps - that is the result of the so-called NATO "air campaign" which, to accentuate the irony, has been named "noble angel".

The attacks on residential areas, mainly the parts inhabited by working-class people of the mining town of Aleksinac, Cuprija, Nis, Surdulica; workers' housing blocks in Belgrade and on a large number of towns in Kosovo and Metohija took a toll of several hundreds of innocent lives, mostly children, women and the elderly. In Surdulica alone, hundreds of houses have been demolished or damaged, 200 of which have been erased or are beyond repair. Indeed, one fourth of this small town has been destroyed. Among the destroyed buildings there is not a single military facility or a facility of importance to the military. As the bodies of killed children, women and the old were being taken out of the demolished houses in this town, almost at the same time, at a briefing for journalists, the NATO spokesman indifferently said: "NATO has never targeted civilians intentionally and never will do so". However, moments later, under the pressure of journalists' questions, he admitted that "stray missiles were in question", i.e., so-called collateral damage, officially admitted to by NATO after a previous denial. Collateral damage was also admitted to in the case of the attack on a column of Albanian refugees on the Djakovica-Prizren road. In the attack 75 civilians were killed by projectiles dropped from NATO planes, while many others were seriously wounded. At first an attempt was made to present the incident as the doing of Yugoslav airplanes. The same is true of the attacks on civilian facilities in Aleksinac, Kraljevo, Uzice, Nis, Cuprija, parts of Belgrade, the shelling of a passenger train on a bridge near Grdelica with more than 50 killed passengers. Some of the carbonized bodies of the passengers could not be identified. The shelling of a "Nis-ekspres" bus in Luzane near the town of Podujevo, with more than 60 civilian passengers killed and the attacks on a number of other buses resulting in several dozens of civilian casualties, including the most recent bombing of the Embassy of China and of the market place in the centre of Nis, were also termed "collateral damage". Even more brutal are the strikes immediately after the hitting in order to prevent the fire brigade and medical teams from attending to the victims who have suffered grave bodily injuries. As a point of illustration, ten minutes after the strike on the bus near Luzane, the emergency service ambulance which rushed to the scene to extend medical help, was also hit. In that incident a member of the medical team was seriously wounded. On the occasion of the bombing of Belgrade, ten minutes after the missiles fell killing and injuring a great many people, the rescue team which came to take care of the wounded civilians was exposed to attack. On that occasion the City of Belgrade Director of Inspectorate lost both legs while several members of the rescue team suffered serious injuries.

More than 300 towns and villages in various regions of Yugoslavia were targeted so far with "Tomahawk" and other cruise missiles and airplane bombs. They are usually shelled at night, with the exception of populated areas and facilities in Kosovo and Metohija which are battered almost without letup. Areas in which Serbs live as well as those in which Albanians and members of the other national communities reside are equally bombarded. Numerous areas and villages with an entirely Albanian population have also been shelled. This fact completely disillusioned the majority of the members of the Albanian national community. Namely, it was claimed that this aggressive action has allegedly been undertaken for their benefit. In order to turn the Albanian population against the legitimate Yugoslav authorities, NATO officially spread various untruths and fabrications about mass executions of Albanians, about rape and looting. Also about the Yugoslav authorities killing the prominent leaders of Albanian political parties, such as Dr. Ibrahim Rugova and others, including their families. But, much to the regret of NATO propagandists, they appeared in public, safe and sound, both in Yugoslavia and elsewhere in the world.

The intention of the NATO Alliance is obvious. Its aim is not only to weaken the Yugoslav defence capacity by destroying military facilities and by killing and wounding, without any legal grounds whatsoever, Yugoslav soldiers and military officers and members of the police force, but also to destroy a large part of the Serbian people and citizens of Yugoslavia. Under the pretext of preventing the alleged persecution of members of the Albanian national community in Kosovo and Metohija army barracks are bombarded not only in that area but also in the whole territory of Yugoslavia. More than 200 army barracks have been bombed in various parts of the country with an obvious intent to inflict the largest possible number of casualties. One may ask who is entitled to kill the soldiers of a sovereign State, innocent young people who, as in any other European country, are doing their national service on the territory of their own country and are not fighting against the troops of a foreign State. To make things even more hypocritical, NATO also shelled a number of military checkpoints on the border of the Federal Republic of Yugoslavia. These bombings and the other forms of aggression signify the most direct support to the Albanian separatist and terrorist forces in the pursuance of their aims of separating a part of the Yugoslav territory and joining Albania. With the open support of Albania and NATO member States the terrorist groups are not only being prepared and trained on its territory but outright acts of aggression against Yugoslavia are being committed.

That NATO action is intended not only against the Yugoslav army and police force, but also against the people as a whole, is shown not only by the savage attacks on the civilian population using the most sophisticated weapons and explosives, but also by other systematic forms of endangerment of the lives and health of the Yugoslav people. This is attested to in particular by countless attacks on chemical plants and oil refineries and installations (some facilities have been pounded dozens of times). These attacks have already caused the environmental catastrophe, air pollution and poisoning of rivers. Large quantities of released poisonous substances and oil slicks are bound to have disastrous consequences also for the broader neighbourhood of Yugoslavia. Oil installations and refineries in Pancevo and Novi Sad, chemical plants in Belgrade, Pancevo and other places are targeted almost on a daily basis. With the intention of depriving ordinary people of the means of living, the largest economic enterprises providing jobs for hundreds of thousands of workers and bread and butter for more than a million members of their families, have been completely destroyed. Among them in particular: "Zastava" car factories in Kragujevac, the bombing of which caused injuries to more than 120 workers and other staff; nitrogen plant and fertilizer plant in Pancevo; industry of machinery in Nis, "14 October" Factory in Krusevac, "Feronikl" in Pristina, industrial complex "Lola-Utva" in Pancevo; household appliances factory "Sloboda" in Cacak; "Krusik" Holding Company in Valjevo, "21 May" Motor Factory in Rakovica and more than 50 other important economic enterprises, built and developed for decades with great sacrifice on the part of their workers, including business and financial co-operation with their partners mostly in Western Europe.

The merciless destruction of transport infrastructure, in particular of bridges, roads, civilian airports, railway installations and lines, paralysed normal life and the economic activity across the country, bringing into jeopardy still more the basic existential conditions and subsistence of the population. Sixty-five major bridges and overpasses have been destroyed, including all three bridges across the Danube in Novi Sad; bridges across the Danube near Kovin, Beska and Ilok; the nearly completed newly-built bridge across the River Sava near Ostruznica (Belgrade); the bridge on major railway lines Belgrade-Bar, Nis-Vranje, Prukuplje-Pristina, Priboj-Nova Varos and other traffic facilities thus dismembering the country's territory into several parts.

By destroying the bridges on the Danube NATO caused navigation on the most important European waterway to be brought to a standstill, doing enormous damage to transport and the economies also of other European countries, and grossly violating the Danube Convention and all other relevant international agreements. By destroying almost all civilian airports in Yugoslavia, the freedom of air traffic was unscrupulously suppressed, in addition to halting navigation on rivers and road traffic.

There are no records in history so far of anyone attempting to destroy the means of public information, the way NATO has done in Yugoslavia, violating all norms of human rights and freedom of information. The Television of Serbia building in Belgrade was bombarded. In the debris 14 journalists, directors, cameramen and other staff, including two young girls working in the make-up section, were found dead. Several staff suffered serious bodily injuries. The building and equipment of TV Novi Sad, broadcasting information in five different languages for five national communities in Vojvodina, has been destroyed. TV studios of five privately-owned TV stations and a number of radio stations have been pounded. In a brutal attack on TV infrastructure, more than 40 TV transmitters, relays and TV masts have been completely destroyed, including the well-known large TV tower on Mount Avala. Also destroyed was the central satellite station in Ivanjica handling PTT communication with the whole world. To increase isolation from the world in the domain of postal traffic even more, buildings and equipment of a large number of civilian posts have been destroyed, in small villages and big cities, such as Uzice, Vranje, etc., alike.

Utilizing the aggression on Yugoslavia as an opportunity for and a means of testing new weapons, NATO, in addition to using cluster bombs and ammunition with depleted uranium on a massive scale, also made use for the first time of the bombs with graphite coils causing short circuit and the disruption of the entire power supply system of Yugoslavia. This resulted in power failure, leaving not only citizens and economic facilities without electricity and water for days, but also hospitals and other medical and humanitarian institutions. Also shelled were a convoy of trucks near Urosevac carrying Greek humanitarian relief supplies, as well as heating plants in a number of towns depriving the population of heating. It should be added that more than 60 hospitals, maternity wards and health institutions have been damaged or completely destroyed in air raids. This has caused enormous difficulties in providing health care to citizens, contributing to the aggressor's intent to exterminate the people using all available means.

Even the most important cultural monuments, places of historical interest, churches and monasteries have not been spared, the purpose being to obliterate the cultural, religious and historical identity of the people. The famous monastery of Gracanica suffered damage in a dozen strikes in a row hitting the church and the surrounding area.

Important architectural monuments, such as the Provincial Government of Vojvodina building in Novi Sad, buildings housing a number of federal and republic ministries in Belgrade, TV tower on Mount Avala, Air Force Club in Zemun, buildings in Nemanjina Street in Belgrade, etc., were hit.

The power supply system of Serbia, in addition to being bombed with special devices causing short circuit and disruption of the system, was also bombarded. Many facilities have been destroyed, including the central thermal electric plant in Obrenovac; TE plant "Drmno" in Kostolac; power plants on the River Lim; hydro-electric plant "Perucac" near Bajina Basta; hydro-electric plant "Bistrica"; artificial lake in Medjuvrsje near Cacak, but also raw material suppliers of power plants, such as mines in Volujak and Goles; transformer stations in Zemun Polje, Baric, Nis, Novi Sad and water systems and pipelines serving electric power generation.

Unprecedented aggression on a sovereign State, a Member and one of the founders of the United Nations, culminated in the direct bombing of the official residence of the Head of State - the President of the Federal Republic of Yugoslavia. On that occasion, a guided missile hit the master bedroom, the residence was demolished, which is tantamount to the attempted murder of the Head of State, an act inappropriate in the relations between the members of the world community at the end of the second millennium. The official explanation of NATO, unprecedented in history, was that there was no intention to kill the Head of State, but to destroy the military command centre, precisely in the President's bedroom. And all that at dawn, when most people are sleeping.

From the beginning of the aggression on 24 March 1999, there is an air-raid alarm in the whole of Yugoslavia and hundreds of thousands of people are forced to spend nights in basements and underground shelters for nearly two months now. This causes serious health problems to children, the old and the sick. In Kosovo and Metohija, in other parts of southern Serbia, and of late in the whole country, air-raid alarms, accompanied by frequent daily bombardment, paralyse life also during the day. Because of that economic activities are considerably reduced. Due to serious risks for schoolchildren's lives schools have been closed for the past five weeks.

Buildings and equipment of a large number of State and local organs and services have been heavily bombed inflicting huge material damage and civilian casualties. Thus, the Federal Ministry of Internal Affairs building and that of the Federal Ministry of Defence have been repeatedly bombed. The buildings housing the Federal Ministry of Foreign Affairs and the Republic of Serbia Government have been considerably damaged. The Ministry of Internal Affairs of Serbia building has been destroyed; many other government and local authorities buildings across the country have also been destroyed. Several museums and theatres have been damaged extensively. A number of cemeteries have not been spared either. The remains of those buried were blown up, along with gravestones. As if NATO is bent on erasing any trace of the existence of one people, by simply obliterating any trace even of its members who have been resting in peace.

Detailed and accurate data on all the consequences of the aggression, including photo documentation, have been made available to the Court.

The losses of human life and immense material damage are multiplying in this wicked aggression against Yugoslavia which continues unabated. NATO member States, in the absence of any legal, moral or political grounds, explain this unprecedented gross violation of the basic principles and provisions of the Charter of the United Nations and international law by the attempt to prevent the alleged humanitarian catastrophe of the Albanian population in Kosovo and Metohija. It is beyond comprehension that any normal human being could entertain the idea that it is possible to protect anyone's rights and interests in this territory through a general humanitarian catastrophe of all the citizens of Yugoslavia, including Albanians, brought about by an aggression without precedent. Except the interests of the terrorist so-called Kosovo Liberation Army, which, after the beginning of NATO aggression on Yugoslavia, lost all support not only of a considerable part of the Albanian community, but also of the prominent leaders of Albanian political parties.

The aggression on Yugoslavia, and its indirect and direct consequences, have caused concern not only of the public opinion in neighbouring countries, which suffer both economic and military defence consequences of the aggression, but also of the world public opinion. This is evidenced by strong protests not only of ordinary people, but also of prominent political, public and cultural personalities in many countries. They demand that the aggression, bombing and bloodshed be stopped. Among those calling for the immediate stoppage of the bombing are His Beatitude Pope John Paul II, Secretary General of the International Committee of the Red Cross, Cornelio Somaruga, United Nations High Commissioner for Human Rights, Mary Robinson, Special Rapporteur of the United Nations Commission on Human Rights, Jirzi Dienstbir.

The Yugoslav Government, which is leading general resistance of the people, stands ready for a political solution respecting the interests of members of all national communities in Kosovo and Metohija, including the Albanian community. But it is not ready to accept conditions threatening the country's sovereignty and territorial integrity, as was attempted at Rambouillet and in Paris, in contravention also of the Charter of the United Nations and Articles 51 and 52 of the Vienna Convention of the Law of Treaties. What was involved was outright coercion and threat of force to make us accept an agreement, the provisions of which would certainly not be accepted by the government of any sovereign State in the world. That threat was voiced publicly, in front of the members of the delegation of the Republic of Serbia, by United States Secretary of State Madeleine Albright. Consequently, the immediate cause for the aggression was the refusal to accept the diktat-agreement the controversial provisions of which had not been previously approved by the Contact Group either, whose agreed proposals, including all the proposed principles, had been accepted by the Yugoslav side. Following the act of aggression and the barbaric bombardment of the area of Kosovo and Metohija suffered by its population, a second alleged reason for the illegal aggression on Yugoslavia was invented, that is the prevention of the humanitarian catastrophe which was created as a result of the increased number of refugees. However, the fact that the refugees left their homes in Kosovo and Metohija precisely because of NATO's merciless and savage bombing of the civilian population was passed over in silence. This is equally true of the members of the Albanian community and the members of the Serbian and all other communities. They fled not only to neighbouring countries but also to other parts of Yugoslavia which were not exposed to massive NATO air-raids at the beginning of the aggression. This is evidence by many facts that can be easily proved. This is evidenced by many facts that can be easily proved. But also by the official reports of the OSCE Verification Mission which monitored the situation in the province with its 1,400 verifiers up until the commencement of the aggression. Only a day before the aggression started the OSCE Mission left the territory, without any reason on the part of the Yugoslav side. It thus enabled NATO to freely and brutally attack Yugoslavia and its people with full force. This is also shown by the official communiqué of the NATO Council of 17 December 1998, which "welcomes the agreement between the Federal Republic of Yugoslavia and NATO establishing the Air Verification Mission, completing the OSCE Ground Mission", and which resulted in the prevention of the humanitarian catastrophe. From the NATO Council communiqué of 8 December 1998 it can be clearly seen that the "establishment of the Verification Mission for Kosovo opened a new stage in the cooperation between NATO and OSCE". This was also reflected in the "close cooperation with OSCE in recent months in planning and establishing these missions".

Instead of all this, the OSCE Mission, at the insistence of NATO, with which it "closely cooperated", withdrew from the territory of Yugoslavia, thus showing that it did not care about the situation in Kosovo and Metohija and its population, but that its primary concern was in the function of NATO and its genocidal intentions against the people of Yugoslavia.

Besides, it should also be added that NATO and the so-called Western States have played an aggressive role in the breaking up of Yugoslavia in 1991-1992, by openly supporting the secessionist republics on the basis of the right to self-determination.

Only the Serbian people on the territory of the former Yugoslav Republics of Croatia and Bosnia and Herzegovina were denied the realization of this right on the basis of its clearly expressed will to remain in the former, common State; at least in areas with homogenous Serbian population on the territory which, at the creation of the Kingdom of Yugoslavia, was "the State of Croats, Slovenes and Serbs" (Croatia, Slovenia and Bosnia and Herzegovina). NATO Members turned a deaf ear to the Serbian interests also after the signing of the Dayton Agreement, imposing new sanctions on Yugoslavia, especially the United States. Secessionists in Kosovo and Metohija were thus encouraged to boycott the dialogue with the Government of Serbia and to commit unheard-of acts of terror against the entire population of that province. This included Albanians who were exposed to killing for the smallest act of loyalty to their State, for taking part in voting at elections, having a job in the State technical services or an enterprise. On the eve of the aggression on Yugoslavia, NATO Members wanted to show clearly also to Serbs in Bosnia and Herzegovina, and to Yugoslavia, that might makes right; that it is over and above any right or agreement. On the same day they announced, through their high representative, the replacement of the democratically elected President of the Republika Srpska. And, the American arbiter announced his decision on Brcko, which, like that of the high representative for Bosnia-Herzegovina, constitutes an unauthorized revision of the Dayton Agreement, The obvious intention in Rambouillet was to place Kosovo and Metohija under a similar "protectorate", in which the sovereignty and territorial integrity of Yugoslavia would only be a facade.

Our country is exposed to unrelenting daily bombing by 1,000 planes of the most powerful military alliance in the world. At its borders there are almost 20,000 NATO troops equipped with planes, tanks and heavy artillery. As the condition for stopping bombardment it is demanded that Yugoslavia withdraw its army from its own territory and leave control to the troops of the aggressor countries. Which State on earth could possibly accept such a Diktat! We are a small and weak country in comparison to such a formidable military power which attacked us unilaterally and without any justification whatsoever. But we cannot surrender, at the price of the greatest sacrifices. Because on our side are both justice and truth, which the mighty are seeking to suppress by the monopoly of information and by physical destruction of our media and our people. In addition to brave resistance put up by our army and the whole people, our basic means in this unequal struggle are legal means and the confidence which we place in this distinguished world Court to deliberate upon this question of crucial importance not only for the fate of Yugoslavia, but also that of the United Nations and the entire international community.

Thank you, Mr. President. I ask you kindly to give the floor to Mr. Etinski.

The VICE-PRESIDENT, acting President: I give the floor now to the distinguished Agent of Yugoslavia, Mr. Etinski.

Mr. ETINSKI: Thank you Mr. President.

Mr. President, distinguished Members of the Court. The case before you is clear. The request I am submitting to you is founded in fact and in law. The matter is honest. Stop killing. Save the lives of all Yugoslav citizens, Serbs and Albanians, civilians and soldiers. Save the whole nation and all its communities. Don't be late.

I ask the Court to indicate the following provisional measure:

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 shall cease immediately the acts of use of force and shall refrain from any act of threat or use of force against the Federal Republic of Yugoslavia. Thank you, Mr. President.

The VICE-PRESIDENT, acting President: Thank you very much, Mr. Etinski. The Court will now adjourn and resume at 3 p.m. to hear the submissions of Belgium.

The Court rose at 1.05 p.m.

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1 The outline of the Interim Agreement is as follows: Preamble, introductory Framework (2 Articles) and eight Chapters, dealing with, successively: Constitution (11 Articles); Police and Civil Public Security (9 Articles); Conduct and Supervision of Elections (3 Articles); Economic Issues (2 Articles); Humanitarian Assistance, Reconstruction and Economic Development (1 Article); Implementation I (5 Articles); Ombudsman (3 Articles); Implementation II (16 Articles) with two Appendices, i.e., Approved VJ (army forces)/MUP (Ministry of Interior Police) Cantonment Sites (8 paragraphs), Appendix A - and Status of Multi-national Military Implementation Force (25 paragraphs) - Appendix B; and finally Amendment, Comprehensive Assessment, and Final Clauses (2 Articles). The text of the Interim Agreement is downloaded from the Internet.