LET'S TAKE BELGRADE TO THE WORLD COURT OVER KOSOVO

By Phon van den Biesen

International Herald Tribune, Monday, Mai 10, 1999

AMSTERDAM - NATO's intervention in Yugoslavia is a violation of the UN Charter, and it is likely that the Federal Republic of Yugoslavia will concentrate on this point when it presents its case against some NATO states to the World Court this Monday. But what about the Kosovars?

The people of Kosovo are entitled to the protection of international law. The Geneva conventions of 1949 and their 1977 protocols provide for protection of citizens in cases of internal armed conflict.

The problem with these bodies of law is the lack of effective implementation mechanisms. Of course, this needs urgent fixing. But even if there were a widely shared sense among states on how to do this (which there is not), action would not come in time for the Kosovars.

The current world order is far from perfect. This should not be taken as an excuse to violate the civilized mechanisms that do exist, but rather as an encouragement to make use of these as much as is reasonably possible.

One of these mechanisms is laid down in the Genocide Convention of 1948. The treaty explicitly provides that disputes arising between states under the terms of the convention shall be judged by the International Court of Justice in The Hague.

Any state party to this treaty can ask the court for a judgment on alleged violations of the convention anywhere in the world. In other words, Bolivia or Kazakhstan, just like the other parties to the convention, has a legal interest in obtaining a ruling from the World Court on the atrocities in Kosovo.

All that these countries need do is file an application at the court instituting proceedings against the Federal Republic of Yugoslavia (also a party to the genocide convention).

Now that eight NATO states have to appear in court to defend themselves against the Yugoslav claims, they might as well make use of the opportunity to file such a case against Belgrade. This may be done by a separate application or by submitting counterclaims within the context of the Yugoslav case.

A state submitting such a claim to the World Court needs to present at least prima facie evidence - in this case, that acts committed in Kosovo appear to constitute a violation of the convention.The convention defines genocidal acts as acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group.

The legal grounds for a case under the genocide convention have been thoroughly tested in the only precedent, a genocide case of Bosnia-Herzegovina against the Federal Republic of Yugoslavia. This case went through a long stage of preliminary proceedings in which eventually all of Yugoslavia's objections regarding admissibility and jurisdiction were rejected by the court. The merits phase of these proceedings has not been concluded yet.

The World Court is known for long proceedings. However, it is also known for being able to act quickly when a state requests provisional measures.

The provisional measures requested should include an order that Yugoslavia immediately cease its horrendous practices in Kosovo. It is conceivable that such a ruling would include an order to guarantee the refugees prompt return to their homes.

If the court delivered such an order, and if Yugoslavia decided not to comply with it, the case could be handed over to the Security Council. The UN Charter gives the council the authority to carry out court judgments through measures to be decided by the council. Since all the permanent members of the council are also party to the genocide convention, it is hard to imagine that any might object to effective implementation of such a World Court ruling.

The city of The Hague is often referred to as the capital of international law. This week it will also be the scene of a large peace conference. Many thousands of people will gather under the auspices of a coalition of civil organizations, The Hague Appeal for Peace, to discuss an Agenda for Peace and Justice calling for peaceful resolution of conflicts and a substantial extension of World Court's role.

The writer, an attorney in Amsterdam, is deputy agent of Bosnia-Herzegovina before the International Court of Justice and secretary to The Hague Appeal for Peace. He contributed this comment to the International Herald Tribune.