I agree with this Order. I write separately to underline one particular point. In the present case the Court has found that it has prima facie jurisdiction under Article IX of the Genocide Convention to order the suspension of military operations by way of a provisional measure. This decision is consistent with earlier decisions in which the Court found that it lacked such prima facie jurisdiction.
The earlier cases concerned an allegation by the requesting State that the States conducting the military operations were committing genocide by their use of force (ibid, pp. 136-137, para. 35). The Court held that "the threat or use of force against a State cannot in itself constitute an act of genocide within the meaning of Article II of the Genocide Convention" (ibid, p. 138, para. 40). Since it appeared, at that stage of the proceedings, that the military operations concerned did not entail genocidal intent, the Court was "not in a position to find ... that the acts imputed ... to the Respondent are capable of coming within the provisions of the Genocide Convention" (ibid, p. 138, para. 41). Accordingly, the Court found that Article IX cannot "constitute a basis on which the jurisdiction of the Court could prima facie be founded" (ibid.).
It is true that, in 1999, certain respondent States came close to justifying their use of force by stating that their actions were taken with the intent to prevent genocide (see Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), dissenting opinion of Vice-President Weeramantry, p. 184) and that certain of their officials made allegations of genocide in that context. However, such justifications were not the stated purpose of the military operations by the respondent States, nor was that purpose so perceived by the applicant State. That aspect was therefore not the subject-matter of the earlier cases before the Court.
In my view, the differences between the present case and the earlier cases are clear and sufficiently significant to justify that the Court has, in the present case, found prima facie jurisdiction based on Article IX of the Genocide Convention, which it did not in the earlier cases.
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