Legality of Use of Force (Yugoslavia v. United States of America)

On 29 April 1999, the (former) Federal Republic of Yugoslavia (FRY) instituted proceedings before the International Court of Justice (ICJ) against the United States of America “for violation of the obligation not to use force”, resulting from the bombing of Yugoslav territory by the United States and other Member States of NATO. Concurrent to this Application, the FRY submitted a request for the indication of provisional measures, calling on the ICJ to order the United States to “cease immediately its acts of use of force” and to refrain from any further threat or act of force against the FRY.

In filing the Application, the FRY relied on Article IX of the Convention on the Prevention and Punishment of Genocide, 1948 and Article 38(5) of the Rules of the Court. These articles state, respectively, that disputes between contracting parties relating to the interpretation, application or fulfilment of the Convention shall be submitted to the ICJ, and that applications filed against States which have not accepted the Court’s jurisdiction cannot proceed unless and until that State accepts the Court’s jurisdiction for the purposes of the case.

In delivering its decision on 2 June 1999 the ICJ first sought to emphasize its deep concern over the “human tragedy” in Kosovo, and declared its profound concern with the use of force in the Yugoslav territories, which it deemed to “raise very serious issues of international law”. Nevertheless, the ICJ reiterated the fundamental principle of its Statute that it cannot settle a dispute between states in the absence of the consent of those states to its jurisdiction. Furthermore, it reminded the parties that it was unable to indicate provisional measures without first establishing prima facie jurisdiction in a case.

On the issue of prima facie jurisdiction, the ICJ ruled that whilst it was indisputable that both the United States and the Federal Republic of Yugoslavia are parties to the Genocide Convention, a reservation made to Article IX by the United States declaring that its “specific consent” is needed before any dispute is submitted to the ICJ, meant that Article IX could not constitute a basis for jurisdiction. Regarding Article 38(5), the Court said that in the absence of consent by the United States it lacked even prima facie jurisdiction. As a result, in rejecting the FRY’s request for provisional measures by twelve votes to three, the Court concluded that it “manifestly lacked jurisdiction to entertain Yugoslavia’s Application”. Killing Three Birds with One Stone (S. Olleson)
Research/ miscellaneous (Research Document)
Page Tools
Share |