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Provisional Measures of the International Court of Justice in Armed Conflict Situations

Published online by Cambridge University Press:  30 July 2010

GENTIAN ZYBERI
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Abstract

This article critically assesses the role of provisional measures indicated by the International Court of Justice in protecting populations during armed conflict situations and the legal consequences attached to the violation of such measures. A number of relevant cases, including the most recent Georgia v. Russia case, are dealt with. Provisional measures aimed at protecting populations affected by armed conflict have been increasingly requested in the last two decades by states finding themselves at a military disadvantage. Questions remain, however, with regard to the suitability of these incidental proceedings to deal with major political controversies resulting in armed conflict between states. That notwithstanding, it is submitted that although compliance with such orders of the Court remains unsatisfactory, in the long term provisional measures can eventually strengthen state compliance with commonly agreed international human rights and humanitarian law standards.

Keywords

armed conflictforms of reparationshuman rights protectionInternational Court of Justiceprovisional measures orders
Type
HAGUE INTERNATIONAL TRIBUNALS: International Court of Justice
Information
Leiden Journal of International Law , Volume 23 , Issue 3 , September 2010 , pp. 571 - 584
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

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References

1 See inter alia K. Oellers-Frahm, ‘Article 41’, in A. Zimmermann, C. Tomuschat, and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice: A Commentary (2006), 923; S. Rosenne, Provisional Measures in International Law: The International Court of Justice and the International Tribunal for the Law of the Sea (2005); R. Wolfrum, ‘Interim (or Provisional) Measures of Protection’, Max Planck Encyclopedia of International Law, www.mpepil.com/; G. Zyberi, The Humanitarian Face of the International Court of Justice: Its Contribution to Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles (2008), 54–7.

2 See inter alia H. Thirlway, ‘The Indication of Provisional Measures by the International Court of Justice’, in R. Bernhardt (ed.), in Interim Measures Indicated by International Courts (1994), 1–36.

3 Thirlway, supra note 2, at 3.

4 Art. 74(3) of the Rules of Court reads, ‘The Court, or the President if the Court is not sitting, shall fix a date for a hearing which will afford the parties an opportunity of being represented at it. The Court shall receive and take into account any observations that may be presented to it before the closure of the oral proceedings.’

5 Art. 74(4) of the Rules of Court reads, ‘Pending the meeting of the Court, the President may call upon the parties to act in such a way as will enable any order the Court may make on the request for provisional measures to have its appropriate effects.’

6 In the LaGrand case, see LaGrand (Germany v. US), Provisional Measures, Order of 3 March 1999, [1999] ICJ Rep. 9, at 14–15, paras. 19 and 26.

7 Oellers-Frahm, supra note 1, at 965–7. Four cases should be added to Oellers-Frahm's list, namely Pulp Mills on the River Uruguay (Argentina v. Uruguay) (1. Order of 13 July 2006 – provisional measures rejected; 2. Order of 23 January 2007, Provisional measures rejected); Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America) (Order of 16 July 2008 – provisional measures granted); Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) (Order of 15 October 2008 – provisional measures granted (hereinafter Georgia v. Russia, available at www.icj-cij.org/docket/files/140/14801.pdf)); Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) (Order of 28 May 2009 – provisional measures rejected).

8 For the sake of clarity it should be noted that of the 17 requests submitted to the Court, ten, where provisional measures were not granted, pertain to the Legality of Use of Force case.

9 Respectively in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America); Application of the Genocide Convention case, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda); and most recently Georgia v. Russia.

10 Rosenne, supra note 1, at 8.

11 Georgia v. Russia, supra note 7, respectively paras. 86, 118 and 129.

12 In Armed Activities (DRC v. Uganda), the Court found that ‘in the circumstances, the Court is of the opinion that persons, assets and resources present on the territory of the Congo, particularly in the area of conflict, remain extremely vulnerable, and that there is a serious risk that the rights at issue in this case [essentially its rights to sovereignty and territorial integrity and to the integrity of its assets and natural resources, and its rights to respect for the rules of international humanitarian law and for the instruments relating to the protection of human rights] . . . may suffer irreparable prejudice.’; Provisional Measures Order of 1 July 2000, [2000] ICJ Rep. 111, at 128, para. 43. See also Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro), Order of 8 April 1993, [1993] ICJ Rep. 3, at 19, para. 34; and Georgia v. Russia, supra note 7, para. 142.

13 Higgins, R., ‘Interim Measures for the Protection of Human Rights’, (1997) 36 Columbia Journal of Transnational Law 91, at 108Google Scholar.

14 Dissenting Opinion of Judge Oda, LaGrand (Germany v. United States of America), [2001] ICJ Rep., 540, para. 35, stating: ‘I reiterate: it is extraordinary that the Court, in its Order of 3 March 1999, determined not the rights and duties of a State but the rights of an individual.’

15 See inter alia Declaration of Judge Oda, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Order of 1 July 2000, [2000] ICJ Rep. 131, para. 4; Joint dissenting opinion of Vice-President Al-Khasawneh and Judges Ranjeva, Shi, Koroma, Tomka, Bennouna and Skotnikov, Georgia v. Russia, supra note 7, paras. 11–16.

16 The most remarkable situation being the case of LaGrand, where the Court indicated provisional measures in a time frame of several hours from the filing of the application by the Republic of Germany. See Counter-Memorial of the US, 27 March 2000, para. 57, available at www.icj-cij.org/docket/files/104/8554.pdf.

17 C. Schulte, Compliance with Decisions of the International Court of Justice, (2004), 32–6, 418–35.

18 LaGrand (Germany v. US), Judgment, [2001] ICJ Rep. 466, at 498–508, paras. 92–116.

19 Ibid., at 501, para. 98.

20 Ibid., at 502, para. 101.

21 Ibid., at 503, para. 102.

22 Ibid., at 505, para. 108.

23 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Order on Request for Provisional Measures of 10 May 1984, [1984] ICJ Rep., 187 (hereinafter Nicaragua case), para. 41(B)(4)(C).

24 Georgia v. Russia, supra note 7, Order on Provisional Measures of 15 October 2008, para. 149(D).

25 Rule 75(1) reads, ‘The Court may at any time decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures which ought to be taken or complied with by any or all of the parties.’

26 The Practice Directions are the result of the Court's ongoing review of its working methods. Practice Direction XI, the only one to deal with legal proceedings concerning provisional measures, provides guidance regarding the content of oral pleadings. It recommends that they be limited to what is relevant to the criteria for the indication of provisional measures, leaving aside the merits of the case beyond what is strictly necessary.

27 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), [1986] ICJ Rep., 14, at 144, para. 287.

28 See, inter alia, M. Al-Qahtani, ‘The Role of the International Court of Justice in the Enforcement of Its Judicial Decisions’, (2002) 15 LJIL 786.

29 That happened in the Application of the Genocide Convention case, where Bosnia requested additional provisional measures in its second request of 27 July 1993. See Order of 13 September 1993, [1993] ICJ Rep., 349, para. 59. The Court stated that the present perilous situation demanded not an indication of provisional measures additional to those indicated by the Court's Order of 8 April1993, but immediate and effective implementation of those measures.

30 Art. 94(2) of the UN Charter gives the right to the affected party to have recourse to the Security Council when the other party ‘fails to perform the obligations incumbent upon it under a judgment rendered by the Court’ (emphasis added). While the binding character of an order on provisional measures is beyond doubt, it is questionable whether the term ‘judgment’ can be interpreted as including such an order for the purpose of having recourse to the Security Council, although the matter may in any event be brought before the Council under other provisions of the Charter.

31 Application of the Genocide Convention, Order of 13 September 1993, [1993] ICJ Rep., 349, para. 58.

32 Georgia v. Russia, supra note 7, para. 147.

33 In the Application of the Genocide Convention and the Armed Activities in the Territory of the Congo cases, the Court found the respondent states to be in violation of its Orders on Provisional Measures.

34 Oellers-Frahm, supra note 1, at 959, quoting Frowein, J. A., ‘Provisional Measures by the International Court of Justice – the LaGrand case’, (2002) 62 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 55Google Scholar.

35 S. Rosenne, ‘A Role for the ICJ in Crisis Management’, in G. Kreijen et al. (eds.), State, Sovereignty, and International Governance (2002), at 212.

36 That was the case in the Armed Activities in the Territory of the Congo (Democratic Republic of the Congo v. Uganda), since both states had accepted the Court's compulsory jurisdiction under Art. 36(2) of the Court's Statute. See Order on Provisional Measures of 1 July 2000, [2000] ICJ Rep. 111.

37 Respectively in the Application of the Genocide Convention case (1993–2007) and the Georgia v. Russia case (2008–). But the Court found that it did not have prima facie jurisdiction to indicate provisional measures in the Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures Order of 10 July 2002, [2002] ICJ Rep. 250. Alongside Art. IX of the Genocide Convention and Art. 22 of CERD, the DRC also tried to base the Court's jurisdiction on Art. 29(1) of the Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1970.

38 The ground of Georgia's urgent request for the indication of provisional measures was ‘to protect its citizens against violent discriminatory acts by Russian armed forces, acting in concert with separatist militia and foreign mercenaries, including unlawful attacks against civilians and civilian objects, murder, forced displacement, denial of humanitarian assistance, and extensive pillage and destruction of towns and villages, in South Ossetia and neighbouring regions of Georgia, and in Abkhazia and neighbouring regions, under Russian occupation’. In Request for the Indication of Provisional Measures of Protection submitted by the Government of Georgia, 14 August 2008, para. 1, available at www.icj-cij.org/docket/files/140/14663.pdf. Russia for its part contended that if there were a dispute, it would relate to the use of force, humanitarian law, and territorial integrity, but in any case not to racial discrimination under CERD. See CR 2008/27, 45, para. 30, available at www.icj-cij.org/docket/files/140/14723.pdf.

39 Georgia v. Russia, supra note 7, para. 114.

40 Art. 29 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, 1979), Art. 30 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1984), or Art. 92 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW, 1990).

41 See the work of the International Law Commission on the effect of armed conflict on treaties, available at http://untreaty.un.org/ilc/guide/1_10.htm. While the Commission seems not to have dealt with this specific issue, the relevant clause or clauses would thus be separable from the remainder of the treaty with regard to their application.

42 As Judge Koroma put it, ‘The circumstances and consequences of this case involving the loss of between three and four million human lives and other suffering have made it one of the most tragic and compelling to come before this Court.’ Declaration of Judge Koroma, 19 December 2005, available at www.icj-cij.org/docket/files/116/10459.pdf.

43 Rosenne, supra note 35, at 198.

44 In each of the Legality of Use of Force cases the Court stated, ‘[t]he Court is deeply concerned with the human tragedy, the loss of life, and the enormous suffering in Kosovo which form the background of the present dispute, and with the continuing loss of life and human suffering in all parts of Yugoslavia.’ See Yugoslavia v. Belgium, Provisional Measures Order of 2 June 1999, [1999] ICJ Rep. 131, para. 16.

45 Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures Order of 2 June 1999, [1999] ICJ Rep. 140, para. 48; Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), Provisional Measures Order of 10 July 2000, 249, para. 93.

46 Respectively, Judge Lachs in the Aegean Sea Continental Shelf, Order of 11 September 1976, [1976] ICJ Rep. 20; Judge Weeramantry in Legality of Use of Force, Order of 2 June 1999, [1999] ICJ Rep. 203.

47 Armed Activities case, Judgment of 19 December 2005, para. 264 and the operative paragraph 345(7). The Court clarified that violations took place throughout the period when Ugandan troops were present in the DRC, including the period from 1 July 2000 until practically their final withdrawal on 2 June 2003.

48 Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment of 26 February 2007, paras. 66, 451, 467, available at www.icj-cij.org/docket/files/91/13685.pdf.

49 Ibid., para. 456.

50 Ibid., para. 458.

51 Ibid., para. 469.

52 Ibid.

53 Ibid. and para. 471(7).

54 Art. 37 of the International Law Commission Articles on State Responsibility adopted in 2001. For more details see J. Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries (2002), 231–4.

55 Black's Law Dictionary (1999), 313.

56 D'Ascoli, S., ‘Sentencing Contempt of Court in International Criminal Justice: An Unforeseen Problem Concerning Sentencing and Penalties’, (2007) 5 Journal of International Criminal Justice 735, especially 738CrossRefGoogle Scholar.

57 Nuclear Tests (Australia v. France), Judgment, [1974] ICJ Rep. 259, para. 23.

58 LaGrand (Germany v. United States of America), Order of 3 March 1999, [1999] ICJ Rep. 15, para. 26. That was mainly due to Germany's urgent request for a stay of the execution of its national, scheduled to take place in the United States in a matter of hours.

59 Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro), Order of 13 September 1993, [1993] ICJ Rep. 334, para. 13.

60 Georgia v. Russia, supra note 7, para. 132.

61 Application of the Genocide Convention, Order of 13 September 1993, [1993] ICJ Rep. 345, para. 41.

62 J. E. Elkind, Interim Protection: A Functional Approach (1981), 257.

63 That second request was followed by an amendment of 4 August 1993 and by a number of supplements submitted by Bosnia and Herzegovina and a request for the indication of provisional measures made by the Federal Republic of Yugoslavia on 10 August 1993.