PRIVREMENE MJERE U PRAKSI MEĐUNARODNOG SUDA U HAGU U PREDMETIMA KRŠENJA KONVENCIJE O SPRJEČAVANJU I KAŽNJAVANJU ZLOČINA GENOCIDA
PROVISIONAL MEASURES IN THE PRACTICE OF THE INTERNATIONAL COURT OF JUSTICE IN THE HAGUE IN CASES OF VIOLATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

Summary/Abstract: According to Article 41(1) of the Statute of the International Court of Justice in The Hague, the Court “shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party.” Interpreting this provision of the Statute, the Court found that it can order provisional measures only if it establishes prima facie jurisdiction over the merits of an interstate dispute. Already at that stage of the proceedings before the Court, it is necessary to provide a basis on which the competence of this judicial forum could be based. Equally, the Court only determines provisional measures if they are about preserving the right that is the subject of the dispute in the court proceedings. Determining the urgency and risk of irreparable damage is the third condition that must be met. According to the practice of the Court, provisional measures are justified only if there is urgency in the sense that an action prejudicial to the rights of any party to the dispute is likely to be taken before a final decision is made. In the paper, we start from the thesis that the power of provisional measures does not end armed conflicts that have already commenced, nor does it prevent or put to an end the commission of the crime of genocide, particularly considering the lack of mechanisms for the enforcement of the Court judgments and, generally, the very negligible role of the United Nations Security Council in this regard. Although the Court’s decision on the indication of provisional measures is legally binding, there are always current discussions about their effectiveness, whether States act on them and whether these measures, such as those usually indicated in cases of violations of the Convention on the Prevention and Punishment of the Crime of Genocide from 1948, can prevent or stop the commission of this international crime. It is significant that on 26 January 2024, the Court, in South Africa v. Israel case, ordered Israel the measure that acts of genocide must be prevented while at the same time refraining from ordering the armed forces of this country to withdraw from the territory of Gaza (Palestine) and to immediately stop by carrying out military operations, which the Court did not determine in the same case in another decision to order provisional measures from 28 March 2024, while the Court indicated the latter measures in the Ukraine v. Russian Federation case on 16 March 2022. The paper examines how far the Court followed its practice and decisions on provisional measures in the cases of Bosnia and Herzegovina v. Serbia and Montenegro (violation of the Convention on Genocide) of 8 April 1993 and 13 September 1993, as well as in the Gambia v. Myanmar case of 23 January 2020. It is shown that there is a tendency to increase the number of court proceedings regarding violations of the Convention on Genocide. In contrast, the percentage of States’ compliance with the ordered provisional measures decreases in parallel. The former Judge of this Court, the Japanese Shigeru Oda, once claimed that “the repeated disregard of the judgments or orders of the Court by the parties will inevitably impair the dignity of the Court and raise doubt as to the judicial role to be played by the Court in the international community.” However, the Court will undoubtedly continue with the practice of indicating provisional measures - probably because of its commitment to the preservation and consolidation of international law and to enable other international bodies to implement international legal rules and fulfil their international obligations, independently of the commitment of States to comply with provisional measures. This is evidenced not only by the recent Resolution of the General Assembly of the United Nations of 20 May 2024 on the International Day of Reflection and Commemoration of the 1995 Genocide in Srebrenica, which, among other things, urges all States to fully adhere to their obligations under the Genocide Convention, as applicable, and customary international law on the prevention and punishment of genocide but also the Court’s Advisory Opinion of 19 July 2024 on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, in which the Court confirmed in principle the findings in its previous Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory on the violation of international law, given twenty years earlier on 9 July 2004.

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