The New York Times

Thursday, June 3, 1999

THE COURT

Judges at The Hague Refuse to Halt the NATO Bombing

By MARLISE SIMONS

PARIS -- Judges at the International Court of Justice in The Hague, Netherlands, refused Wednesday to order NATO countries to halt their bombing of Yugoslavia. The judges also declined to discuss Yugoslavia's demand to be paid for war damages.

Announcing the decisions, the presiding judge said a large majority had found that the court had no jurisdiction to consider the Yugoslav claims. Yugoslavia had asked the court to declare the bombing illegal and for an immediate injunction to end the strikes.

The judges at the court, the highest judicial body of the United Nations, used veiled language to say the bombing was breaking international law.

"The court is profoundly concerned about the use of force in Yugoslavia," the acting president, Judge Christopher Weeramantry, said. "Under the present circumstances this raises very serious issues of international law."

But the judges did not address the legality, saying they were addressing only whether they had jurisdiction.

The decision was based on separate complaints filed by Yugoslavia in April against each of the 10 countries involved in the air attacks. Yugoslavia could not sue NATO, because the court deals just with disputes between nations. In effect, Yugoslavia had little hope of obtaining a blanket order to stop the bombing when it sued, experts said. But because different NATO countries accept different degrees of jurisdiction by the court, Yugoslavia had hoped to divide NATO and embarrass at least a few member governments.

"Yugoslavia has gambled wrong and it made mistakes on technicalities," a legal scholar said.

The panel of 15 judges threw out Yugoslavia's request for "provisional measures," or injunctions, to stop the airstrikes on two counts.

On April 25, Yugoslavia recognized the court's jurisdiction in the dispute but it stipulated that it would not apply to prior disputes. Legal experts said that in that way Yugoslavia wanted to insure that the court could not consider charges of ethnic cleansing or genocide for incidents before April 25.

But that backfired. The court said it could not consider the dispute with the NATO countries because the bombing had started before April 25.

Second, the court rejected Yugoslavia's contention that NATO countries were committing genocide in Yugoslavia. Legal scholars said Yugoslavia was using that accusation mostly as a procedural ploy.

Although some countries do not recognize the court, they have signed the Genocide Convention, and that would broaden the court's jurisdiction. But the judges said there was no evidence that the airstrikes were intended to commit genocide.

Actions against a state are not actions against a group, the court said. In presenting its case on May 10 and 11, Yugoslavia gave a lengthy overview of damage caused to civilian installations and said that at the time, 1,200 people had been killed and more than 4,500 wounded. Yugoslavia included no damage caused to the military, nor did it mention its campaign in Kosovo.

The court deliberations have taken three weeks, and insiders said they produced fierce arguments among the 15 permanent and five ad hoc judges. The strongest dissents were by judges from China, Russia and Sri Lanka.

Disagreement was also reflected in the vague wording that the court used to call for an end to the violence. The court said it was deeply concerned with the "enormous suffering in Kosovo" and the "continuing loss of life and human suffering in all parts of Yugoslavia."

The court said that in eight of the 10 cases brought by Yugoslavia it would continue to examine its jurisdiction and the "legality of use of force." But it dropped the cases against the United States and Spain because they had not recognized the court's authority in this case.

The other eight countries are Belgium, Britain, Canada, France, Germany, Italy, the Netherlands and Portugal. Future deliberations could take months or even years and will deprive Yugoslavia of any immediate result that it had sought.