ICJ: COURT DISMISSES NATO BOMBING CASE

UNCLAS THE HAGUE 003294

SIPDIS

DEPARTMENT FOR L - TAFT/BETTAUER, L/UNA - BUCHWALD/MATTLER

E.O. 12958: N/A
TAGS: AFIN AORC ICJ
SUBJECT: ICJ: COURT DISMISSES NATO BOMBING CASE


Entire text sensitive but unclassified; protect accordingly.


1. (SBU) Summary. The International Court of Justice (ICJ) on
December 15 dismissed Serbia and Montenegro's (SAM) claims
against NATO over the legality of 1999's Operation Allied
Force. The unanimous judgment was based on jurisdictional
grounds, but seven of the fifteen judges issued a joint
declaration objecting to its broad reasoning. One concern of
the seven, including U.S. Judge Buergenthal, is that the
decision leaves open whether the SAM was party to the
Genocide Convention between 1992 and 2000, throwing the
genocide cases brought by Bosnia and Croatia into some doubt.
End summary.


2. (SBU) Background: The claim against NATO, filed by the FRY
in 1999 and continued in 2003 by SAM, alleged that NATO's
Kosovo-inspired military operation in the FRY breached
international law on a number of counts, including the rules
governing the use of force, the use of prohibited weapons,
and the protection of civilians from the hazards of war. The
claim based the court's jurisdiction on the Genocide
Convention and named as respondents Belgium, Canada, Germany,
Italy, the Netherlands, Portugal, Spain, the United Kingdom,
and the United States. The claims against Spain and the
United States were dismissed for lack of jurisdiction in

1999. End background.


3. (SBU) The judgment focuses on two provisions of the ICJ
Statute, paragraphs 1 and 2 of Article 35. The first
paragraph grants a state access to the court if the state is
a party to the Statute ) that is, a UN member state. After
discussion of the "amorphous state of affairs in which the
Federal Republic of Yugoslavia found itself" between 1992 and
2000, the Court avoided a determination of whether it was a
member of the UN during this period by focusing on FRY's
admission to the UN on November 1, 2000 ) after its case
against NATO had been filed in 1999. The Court found that the
FRY was not a party to the ICJ Statute when the case was
filed and that, therefore, it lacked jurisdiction under
Article 35(1) of its statute. Article 35(2) of the Statute
provides that a state not party to the ICJ Statute can gain
access to the court through a treaty in force, which the
court ruled to mean a treaty in force at the time the Statute
entered into force on October 24, 1945. The Court found that
no such treaty was in force, providing an interpretation that
allowed the court to defer the issue of whether the FRY was a
party to the Genocide Convention between 1992 and 2000 -- a
treaty which entered into force on January 12, 1951, well
after the ICJ Statute did.


4. (SBU) A joint declaration by Judges Ranjeva, Guillaume,
Higgins, Kooijmans, Al-Khawasneh, Buergenthal, and Elaraby
"profoundly disagree(s) with the reasoning upon which the
Judgment rests," arguing that the Court's reliance on Article
35 is inconsistent with its past case law, fails to "choose
the ground which is most secure in law and to avoid a ground
which is less safe and, indeed, perhaps doubtful," and risks
potentially negative implications for other pending cases.
It is this last point that is most relevant to the genocide
cases brought against the FRY. In particular, the
declaration raises the judges' concern that this decision
will materially affect Bosnia-Hercegovina's case against SAM
for the application of the Genocide Convention, noting that
"this approach appears to leave some doubt as to whether
Yugoslavia was a party, between 1992 and 2000, to the United
Nations Genocide Convention."


5. (SBU) Comment: While the outcome was no great surprise,
those NATO member states party to this case certainly are
relieved that it is now off the Court's docket. What was
rather more unexpected was the way in which the Court
addressed its jurisdiction, seemingly rejecting a series of
principles derived not only from earlier cases but from
earlier phases of this very case. The immediate question is
how this decision will affect the Genocide Case brought by
Bosnia, which is scheduled for a hearing on the merits in
February 2006. At any rate, however, the Bosnia Genocide
case remains alive and a point of contention between Belgrade
and Sarajevo; unless it is settled, it could remain so even
beyond 2006. End comment.
SOBEL