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LEGALITY ON THE USE OF FORCE: FEDERAL REPUBLIC OF YUGOSLAVIA VS. UNITED STATES OF AMERICA
The circumstances surrounding the Order issued by this Court on 2 June 1999 were extraordinary and pressing. Re-assessing the case today will categorically give rise to new conclusions. These touch upon two issues: (1) whether the Court had the jurisdiction to hear the case and indicate provisional measures as requested by Yugoslavia, and (2) whether NATO’s unilateral military action, framed as “humanitarian intervention”, had unlawfully violated Yugoslavia’s territorial sovereignty.
It is proper to begin with the reservation made by the United States to Article IX of the Genocide Convention. It states that the “specific consent of the United States is required in each case” before this Court. The consequence of it is that this Court dismissed the case in the absence of the State’s consent to accept its jurisdiction, as per Article 34 of the ICJ Statute.
This line of reasoning, however, was incorrect. Pursuant to the principle of compétence de la compétence (ICJ Statute, Article 36(6)), this Court has the power to assess its own jurisdiction, including, significantly, the legality of the reservation in question. In its 1951 Advisory Opinion, the Court pr...