329

DISSENTING OPINION

OF JUDGE CANÇADO TRINDADE

TABLE OF CONTENTS
Paragraphs

I. P ROLEGOMENA 1-3

II. THE EMERGENCE OF COUNTER-CLAIMS ININTERNATIONALL EGAL
PROCEDURE 4-9

III. HE RATIONALE OFC OUNTER-CLAIMS ININTERNATIONALL EGAL
PROCEDURE 10-19

323

JOINT DECLARATION
OF JUDGES KEITH AND GREENWOOD

1. This case has its origins in atrocities and other inhumane acts com-

mitted by German armed forces and other parts of the Nazi Government
against Italian nationals, both civilian and military, between 3 September
1943, when Italy concluded an armistice with the Allied Powers, and the
unconditional surrender of Germany on 8 May 1945. The illegality of
those acts is beyond doubt and is not contested in these proceedings. The

SEPARATE OPINION OF JUDGE AD HOC SUR

[Translation]

DISSENTING OPINION OF JUDGE CANÇADO TRINDADE

TABLE OF CONTENTS

Paragraphs

I. RELIMINARYO BSERVATIONS 2-4

II. ROVISIONALM EASURES:THEIR TRANSPOSITION ONTO THNTER-
NATIONALL EGALPROCEDURE 5-7

III. THEJURIDICALN ATURE ANDEFFECTS OFPROVISIONALMEASURES

OF THEICJ 8-14

JOINT SEPARATE OPINION
OF JUDGES AL-KHASAWNEH AND SKOTNIKOV

1. We have voted in favour of the Court’s decision not to indicate the
provisional measures requested by Belgium. Regrettably, however, we
cannot concur with the Court’s finding to the effect that the conditions
required for the purposes of the indication of provisional measures, in
terms of establishing prima facie jurisdiction or assessing whether the
Application has become moot, have been met.

JOINT DECLARATION OF JUDGES KOROMA
AND YUSUF

Obligation aut dedere aut judicare — The purpose of Belgium’s request for

provisional measures — Senegal’s assurances serve the purpose of Belgium’s
request — Impunity not allowed.

1. We have voted in favour of the Order but nevertheless have decided
to append this declaration given the importance of the matters raised in
the Application and the legal principle involved at this stage of the pro-
ceedings.

DECLARATION OF JUDGE AD HOC GAJA

While I have voted in favour of all the provisional measures, including
those under A, I cannot share the view that the conditions are met for
addressing the latter measures also to the applicant State. The respondent
State did not even allege that in Abkhazia, South Ossetia or adjacent
areas the conduct of Georgian authorities or of individuals, groups or

JOINT DISSENTING OPINION OF VICE-PRESIDENT
AL-KHASAWNEH AND JUDGES RANJEVA,
SHI, KOROMA, TOMKA,
BENNOUNA AND SKOTNIKOV

[English Original Text]

1. We have regretfully been obliged to vote against the Order granting
provisional measures, persuaded as we are that the conditions for the
adoption of such measures laid down in Article 41 of the Statute and by
the jurisprudence of the Court are not met in the present case. Needless

DISSENTING OPINION OF JUDGE SKOTNIKOV

1. I fully share Mexico’s concerns regarding the scheduled execution of

a Mexican national. I understand Mexico’s frustration with the United
States being hitherto unable to take measures which would ensure its
compliance with the Avena Judgment. However, I voted against the
Court’s Order indicating provisional measures for the reasons which are
explained below. I believe that the Court should have proceeded differ-
ently in order to support Mexico’s ultimate goal of enforcement of the

JOINT DISSENTING OPINION OF JUDGES
OWADA, TOMKA AND KEITH

1. To our great regret we find ourselves unable to support the Order
for provisional measures adopted by the Court (para. 80 II (a)). Humani-
tarian considerations which clearly underlie the decision cannot override
the legal requirements of the Statute of the Court. In our view Mexico
has not demonstrated in its Application for interpretation that there is “a
difference of opinion between the Parties as to those points in question in