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1999 May 17 Re: request 1999 request for provisional measures by the Federal Republic of Yugoslavia in the International for provisional measures by the Federal Republic of Yugoslavia in the International Court of Justice Monday May 10, 1999 to Wednesday PDF Print E-mail
Justice News
Posted by Joan Russow
Saturday, 17 February 2018 20:53

1999 request for provisional measures by the Federal Republic of Yugoslavia in the International Court of Justice Monday May 10, 1999 to Wednesday May 13, 1999

By Joan Russow PhD

Global  Compliance Research Project

 

ay 13, 1999• 

From the archives 

 

Image result for image of the peace palace

 

 

 

 

 

 

 

 

 

 

 

 

I attended the oral presentation in the ICJ in the cases concerning Legality of Use of Force brought by the Federal Republic of Yugoslavia against 10 NATO states.

 

• I was impressed with the meticulous effort of the court to remove any perception of bias. The president of the Court was from the US and was required to step down specifically when the US case was being heard. He decided to step down for the whole hearings. [I note with dismay the lack of this principle within the International Criminal Tribunal on the Former Yugoslavia]

OBSERVATIONS:

- the merit of the questions of law surrounding the “Legality of the Use of Force” and in particular the violation of existing international law by the NATO intervention in the Federal Republic of Yugoslavia is sufficiently evident as to require respect for the jurisdiction of the International Court of Justice

- the oral presentation of the Federal Republic of Yugoslavia included presentations by two highly respected specialists in International law including Ian Brownlie Chichele Professor of Public International Law who had previously argued successfully the case of Nicaragua vs the United States,  in1989 and Professor Eric Suy, the former Under-secretary-General and legal Counsel of the United Nations.

 

The Federal Republic of Yugoslavia asked the court for provisional measures to stop NATO bombing of its territory, on the grounds that NATO was engaging in the "illegal use of force". Yugoslavia argued that the NATO countries had violated their international obligations to do the following: not to resort to force against another state; not to intervene in the internal affairs of another state; to protect civilians and civil objects in time of war; to protect the environment; and to follow the ban on the use of prohibited weapons, such as those containing depleted uranium.

 

_ It would appear that the Federal Republic of Yugoslavia had to address three conditions for provisional measures:

* to establish prima facie evidence of the jurisdiction of the ICJ

* to establish that there was a violation of rights that could be examined within the ICJ

• to establish that there would be irreparability if the actions continued and there was an urgency.

- In my opinion, the Federal Republic of Yugoslavia in the oral presentations effectively established these conditions

- The 10 NATO countries generally refused to argue the merits of the case and concentrated on the first criterion of jurisdiction

- Only France and the United States  briefly referred to the use of prohibited weapons (one of the listed violations of international law). France stated that “we are not using depleted uranium” [when I asked for clarification on whether the “we” meant NATO or France” The French representatives stated that the “we” referred to France.]. The United States representative Mr David Andrews admitted that the US is using depleted uranium (DU)  and  then proceeded to classify  DU as a conventional weapon. Canada was silent on the issue even though it is well known that Canadian uranium is used prominently in US weapons systems.

- In my opinion, in assessing “irreparability” the International Court of Justice must examine the health and environmental aspects of the continued NATO intervention in the Federal Republic of Yugoslavia. The effects of Depleted Uranium, like land mines, will live on years after the hostilities have ceased.

- Dr. Rosalie Bertell who was also present in the Hague submitted to the Counsel for the Federal Republic of Yugoslavia, a research paper on the serious health effects of DU. She is an international specialist in this area and has been involved in research conducted in Iraq. Her research indicates that there are serious long term health effects from the use of DU including 5 times as many cancers

- The 10 NATO countries in refusing to examine the merits of the case, in my opinion, have undermined the International Court of Justice.

- the United States, in particular, has been continually remiss in not signing and ratifying international agreements and thus demonstrating little respect for the rule of law. For example the United States has not yet signed and ratified the International Covenant on Social, Cultural and Economic Rights, a key instrument in protecting human rights. It was thus ironic that the US was arguing lack of jurisdiction claiming that the Federal Republic of Yugoslavia was not able to continue the membership of the former Yugoslavia in the United Nations when the US has continually demonstrated disrespect not only for the United Nations but also with the  rulings of International Court of Justice  in such cases at the case of Nicaragua vs the United States.

- The use or the threat to use nuclear weapons was declared in July 1996 to be contrary to international humanitarian law by the International Court of Justice. Presumably similar reasons that led the Court to determine the above will also lead the Court to recognize that the serious consequences of using depleted uranium knowingly is contrary to international humanitarian law and subject to being examined as a war crime.

 

-  If there is to be respect for the rule of international law, especially it should be noted that 1999 is the culmination of the decade devoted to international law, the points raised by the Federal Republic of Yugoslavia related to the merits of the case concerning the legality of Use of Force: must be given serious consideration;

 

 

the violation of the UN Charter — the obligations not to use force against another State, or to intervene in the affairs of another State ,

• to the Convention on the Protection of Civilians in Time of War,

• to the International Covenant of Social, Cultural and Economic rights,

• to the Convention on the Protection of Cultural and Natural Heritage,

• to  the various Conventions on the Environment such as the Convention on Biological Diversity; the Convention on the use of Conventional Weapons [and the use of prohibited weapons];

• to the Convention on the Rights of the Child,

• to Conventions related to freedom of movement and navigation, and

• to the section of the Genocide Convention  not to deliberately inflict on a National group conditions of life calculated to bring about its physical destruction in whole or in part. 

 

 

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