US embassy cable - 04THEHAGUE3294

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