LEIDEN - INTL 5530: INTERNATIONAL LAW
The International Legal Implications attributed to the 1948 British-Albanian dispute, and the Reasons of the Albanian Argument for Partial Decision by the International Court of Justice
Orion Garo 10/14/2011
I.C.J.’s Verdict Concerning the Corfu Channel Incident
Table of Contents
Introduction ....................................................................................................................................3 Research Objective ........................................................................................................................6 The Incident: Facts and Testimonials .........................................................................................7 Background information ..............................................................................................................7 The developments that took place after the incident ...................................................................9 The ‘XCU Files’ and the question of ‘Innocent Passage’ ..........................................................10 The Albanian blame for the October 22nd incident ...................................................................13 The 1948 ICJ Case ......................................................................................................................14 The Verdict .................................................................................................................................18 How fair was it, and what were the consequences for Albania? ................................................20 Conclusive Remarks ....................................................................................................................21 Works Cited ..................................................................................................................................23 Annex 1 .........................................................................................................................................24 Annex 2 .........................................................................................................................................29 Annex 3 .........................................................................................................................................31
Quite often it is argued among historians and experts of the field of international relations on the first event that marked the beginning of the Cold War. Several events may ‘fit the bill.’ However many agree that the first spark of conflict, which for the first time since the end of the 2nd World War aligned in an international judicial case the Communist Bloc versus the Capitalist West, was the 1946 Corfu Channel Incident. This was also the first case filed with the International Court of Justice. On May 15th 1946, less than 1 year from the end of the 2nd World War, two British warship cruisers – HMS Orion and HMS Superb – came under fire from Albanian fortifications as they were crossing the Corfu Channel following a previous inspection and the cleaning of the strait from German mines. No damage or casualties were inflicted. 1 This offensive action of the Albanians angered the British considerably. They had just won the war and supposedly ruled the seas. They could not ignore this episode and wanted to be sure that Albanians understood that the strait between Corfu and Albania could and should be used freely by ships taking their lawful and peaceful journeys. The British demanded an immediate and public apology from the Albanian Government. The Albanians refused to apologize claiming that they had the right to strike since the British cruisers had trespassed the Albanian territorial waters without prior notification. “In an exchange of notes Great Britain took the position that warships could pass through the channel without Albania’s advance (or consent),” 2 the Albanian authorities disregarded Great Britain’s position claiming that the Corfu Channel was ruled by the laws of armed conflict since Greece had in place a state of war against Albania (which remain such up to the 1980s). Consid-
Paul & Spirit, (2008) Walbel, (2009)
ering that Great Britain was an ally of Greece and Greece had the enemy status, Great Britain obviously could not be considered a neutral State by Albania. Both parties, however, did not see it reasonable to settle this issue through a mere exchange of diplomatic notes. They had other plans in mind... The British stated that they did not recognize any right on the part of territorial power of Albania, and could not therefore agree to give prior notification of passage through the channel. They warned that if British ships would be fired upon in the future, fire would be returned. 3 On October 22nd of the same year a squadron of 4 British warships (composed by destroyers Samuarez and Volage, and cruisers Mauritius and Leander) left the port of Corfu and proceeded north-ward, through the channel (which had previously swept for mines) in the North Corfu Strait. Samuarez and Volage diverted their route and approached considerably the bay of Saranda (the southern coastal city of Albania). Suddenly Samuarez struck a mine and incurred serious damage. Volage was right away instructed to give her assistance towing her out of the Albanian territorial waters, toward the Greek island. In the process Volage struck another mine and was also badly damaged, but managed to complete the towing of the damaged ship to Corfu. 44 seamen died on the spot as the mines struck; 42 others were wounded. An Albanian vessel, while raising a white flag, approached the damaged warships for help, but help was refused by the British. 4 This incident infuriated tremendously the British authorities, and on January 13th, 1947 they deposited a dispute with the United Nations Security Council under Article 35 of the U.N. Charter. “The Great Britain Ambassador to the UN, Sir Alexander Cadogan, presented the UK case against Albania to the Security Council. According to Cadogan, the detailed direct evidence
Maher, (2009) Milo & Meçollari, (2009)
which he laid out showed that the mine field had been deliberately, recently and secretly laid contrary to Articles 2-5 of the Hague Convention No. 8 of 1907 which forbade the laying of unnotified minefields, and that, in any event, what had occurred was a crime against humanity. […] On March 25th, 1947, after three months of elaborate investigation and extensive debate, the Soviet Union vetoed the proposed Security Council resolution condemning Albania.” 5 Even so, Australia’s position in the S.C. at the time played an influential role in regard to the BritishAlbanian dispute, as Herbert V. Evatt – prominent lawyer and Foreign Minister of Australia – proposed that despite the Soviet veto a case such concern, which amounted to a potential crime against humanity, could not be ignored and ought to be submitted to the I.C.J. On April 9th, 1947, with 8 votes in favor, 0 against, and the Soviet Union and Poland abstaining, the S.C. issued its 22nd resolution the content of which is quoted at length:
The Security Council, Having considered statements of representatives of the United Kingdom and of Albania concerning a dispute between the United Kingdom and Albania arising out of an incident on 22 October 1946 in the Strait of Corfu in which two British warships were damaged by mines, with resulting loss of life and injury to their crews, Recommends that the United Kingdom and Albanian Governments should immediately refer the dispute to the International Court of Justice in accordance with the provisions of the Statute of the Court. 6
Great Britain submitted the case to the I.C.J. unilaterally, and Albania filed a preliminary objection regarding the jurisdiction of the I.C.J., claiming that The Hague Court had no authority in settling an international dispute, which involved a non-U.N. Member State without its consent (Albania was not a member of the U.N. at the time). “However, Albania’s letter of protest emphasized that notwithstanding Great Britain’s unilateral application, it was, as an exception pre-
Maher, (2005) U.N.S.C., (1947)
pared to appear in the Court to avoid in this manner creating a precedent for the future.” 7 Surprisingly for Albania, the I.C.J. regarded its letter of protest as a voluntary acceptance of the Court’s jurisdiction, and dismissed Albania’s preliminary objection. This decision of the Court on March 25th, 1948 ultimately opened the dispute’s proceedings.
The following sections of this research paper will be organized according to a sequential order of events, capitalizing on those eminent details and developments that impacted the outcome of the dispute in the I.C.J., and eventually the political developments and international relations of Albania with the outside world. The main question is structured in two portions:  what were the implications of international law in the 1948 British-Albanian dispute (?), and  what are the reasons of the Albanian argument for partial decision by the I.C.J.? The objective of this research paper is: first, to shed some light on this incident, many instances of which, mainly for political and national integrity motives, and have been kept in careful concealment by both British and Albanian governments; second, to decipher as clearly as possible the I.C.J. decision to make Albania accountable for this incident, in a time and circumstance when Albania did not have the logistics and technological capabilities to be (and would not want to be) the perpetrator; and third, to show the reasons why the majority of the Albanian scholars and researchers of the field defend the thesis that the I.C.J. verdict was to a good extent partial and favorable to the British.
The Incident: Facts and Testimonials
Background information Seen from the British perspective, the 2nd World War had finished less than a year prior to the mid-May ‘46 incident. Great Britain got out of the war prevailing as one of the big triumphal powers along with the United States and the Soviet Union. It was equipped with the second largest naval fleet, after that of the United States, and it proudly ruled and patrolled the seas in every corner of the globe. On the other hand, Albania, a small Southeast Balkans country, with a population of barely 1 million, was also aligned on the side of the victorious countries of the Communist Bloc, after fighting a destructive 5-year liberation war against the Italian and German occupiers. The partisan struggle of the Albanian Liberation Army was led by a 35-year old commander of MarxistLeninist convictions, who would later rule Albania with an iron fist for over 4 decades. His name was Enver Hoxha. In 1941, Josip Broz Tito’s communist Yugoslavs helped him tremendously in founding the Albanian Communist Party, which would thereafter lead till 1945 the country’s liberation struggle. That is when the Albanian friendship with Tito’s Yugoslavs was cemented. Right after the liberation Albania enjoyed excellent bilateral relations with Yugoslavia, and till 1948 was heavily influenced by Tito’s foreign policy. Meanwhile, in the south of Albania, the Greeks (who were aligned with the Allies during the war) conducted a ruthless genocide and ethnic cleansing in the Albanian-populated region of Chameria in Northwestern Greece. In June 1944, while the liberation struggle against the Germans had reached its peak in Albania, the Greeks (who had freed their country from the Germans since May) organized paramilitary gangs to expatriate all the Muslim Albanians of the Chameria region. By March of 1945, a few months after Albania was liberated from the Germans, 3.200
Chams of Muslim faith (men, women and children) were barbarically murdered, and 25.000 others were forced to leave their homes and flee to Albania. The remaining Chams of Christian Orthodox faith were spared, but were forcefully Hellenized. 8, 9 All these events had staggeringly aggravated the Albanian diplomatic stand towards Greece at that period. The Hellenic country, since 1914, had territorial claims over southern Albania. (At the time Albanians had just established their own sovereign state, after 500 years of Ottoman domination.) The Greek pretenses consisted in the majority of the Albanian southern territory, which they began to call ‘Northern Epirus.’ Two and a half decades later, in 1940, the Greek government adopted the state of war with Albania. The reason - according to the Greeks - consisted in the fact that when Fascist Italy occupied Albania in 1939, the Italian King Victor Emmanuel annexed the small Balkanic country as part of the Italian Empire, and in 1940 made use of it as a base for the Italian attack on Greece. 10 The Greek government considered Albania as a collaborating State of the Italian Fascists and ratified the ‘state of war.’ It did not lift the state of war with Albania until late in 1987, 11 so during the years 1944-1946 - when the Corfu Channel incident happened - Albania and Greece were de jure in a state of war, and their bilateral relations were heavily embittered. Furthermore, Greece “renewed its territorial claim over Northern Epirus (unsuccessfully, as matters turned out) in the negotiations leading to the treaties that dealt with the consequences of the Second World War.” In the months following the end of the war, the Albanian communist elite, which had indisputably seized political power in the country, strove hard to gain membership recognition by the U.N. However, Great Britain and the United States, which strongly opposed the communist re-
Hoxha, (1984) Vickers, (2007) 10 Hoxha, (1984) 11 Zanga, (1987)
gime settlement, had an objective to temporize Albania’s U.N. membership recognition for as long as they could, in an effort to overturn (or at least jeopardize the power of) the newly-formed communist government headed by Enver Hoxha. The communists understood that Allied Powers (particularly the British and the Americans) regarded them as ‘a thorn in the flash’ and raised their alertness. 12 The Albanian Communist Party perceived every initiative taken by the British and the Americans in Albania as one of reactionary intentions. Several British-American civilian and humanitarian aid missions (including the United Nations Relief and Rehabilitation Administration [U.N.R.R.A.] mission) 13 were banned from exercising their duties in Albanian territory. Certain measures were so protectionist toward the involvement of western powers, that amounted to paranoia.
The developments that took place after the incident After the October 22nd incident, in which 44 British lives were lost, the British Admiralty informed immediately the highest ranks of its government. The Information became available to the British diplomacy and politics within hours, but for several days the British general public was kept in the dark regarding the incident. The mass media covered this event vaguely admitting that British lives were lost, but the number lost lives was not revealed until several months later. 14 During the 12th and the 13th of November 1946, three weeks after the October incident, Great Britain unilaterally undertook a mine-sweeping operation of the Corfu Channel, by penetrating even inside the Albanian territorial waters. The commanders of the Albanian military units in Saranda had received strict orders by Enver Hoxha in person to observe closely, but not
Meçollari, (2009) Hoxha, (1984) 14 Walbel, (2009)
open fire or provoke armed conflict, unless the British forces would debark on land. 15 There was an atmosphere of extremely high tension among military forces as well as military and political leadership of Albania during those two days. Immediately after the operation, Albanian diplomacy protested energetically in the international forums claiming that the British had violated the national sovereignty of Albania. 16 During the mine-sweeping “twenty-two moored mines were cut. Two mines were taken to Malta for expert examination. During the mine-sweeping operation it was thought that the mines were of the German GR type, but it was subsequently established that they were of the German GY type.” 17 They had no rust and nor were they covered in moss. This led the British to believe that those mines were laid after the war, most probably between the 15th of May and the 22nd of October, and it was very likely that they were laid by Albanians. Once all the evidence was gathered by the British, they took the case to the Security Council, and as pointed out in the introduction, the Soviet veto denied the condemnation of Albania, and the U.N.S.C. 22th resolution left the British with no choice but to transfer the case to the I.C.J.
The ‘XCU Files’ and the question of ‘Innocent Passage’ This time around the British were facing a legal case, with prosecutors, attorneys, testimonials and judges; this was not a mere accusation against a much weaker and smaller State, shaped according to the British interests and decided by 10 votes at the U.N.S.C. Many question-marks were raised, and – prior to the court proceedings, for about three months – a long heated debate took place in the British Government and the British Admiralty offices concerning the question of the disclosure of the XCU documents. The highest ranks of the British Government Administration, judicial system and military command were involved: the First Lord of the Admiralty –
Hoxha, (1984) Milo, (2010) 17 The Corfu Channel Case (Merits), (1949)
George Hall, the Attorney General – Hartley Shawcross, the British Prime Minister – Clement Attlee and the Lord Chancellor – William Jowitt. The legal adviser of the Foreign Office – Eric Beckett, The Secretary of State, the Minister of Defense 18 and several law officers were also comprised in the debate. The XCU documents (the XCU and the XCU1 documents to be exact; both attached as an appendix to this paper) were basically the written orders under which the Royal Navy Squadron’s cruise was undertaken on October 22nd, 1946. These documents were of essential importance in determining whether the Squadron’s October 22nd sailing was an innocent passage or a provocative one. The term ‘innocent passage’ concerns the sailing manner. So the sailing manner is regarded as such if the navy squadron moves at a relaxed speed in a line formation, with the intention of traveling from point A to point B, “with guns trained fore and aft,” a minimal load on guns, and the minimum necessary number of sailors in fire positions. However, as evidence shows in the XCU documents (see attached appendix), there was no intention of innocent passage by the Royal Navy Squadron on October 22nd. The XCU documents were never disclosed to the I.C.J., because the British knew that their disclosure would heavily compromise Great Britain’s success in this dispute. The documents were kept secret for a long period of time by the British Admiralty, and only recently were released into the Admiralty’s archives. The October 22nd British maneuver was indeed an operation – called by the Admiralty “Exercise Corfu” (short title XCU) 19 – undertaken with the deliberate intent to test Albania’s attitude, and to exercise a ‘punitive response’ 20 on the Albanian costal batteries in case they had not learned their lesson. After the May 15th initial incident, when the Royal Navy Squadron had been
Carty, (2004) Kinahan, (1946) 20 Milo & Meçollari, (2009)
fired upon from the Albanian shores, the Albanian Government had been informed through diplomatic notes on Great Britain’s uncontested right to use the North Channel for the passage of H.M. (Her Majesty’s) Ships without neither prior notification being given to the Albanian authorities, nor the need to receive their permission. All the operational details were elaborated and expressed in written form in the XCU documents. Every eventuality was predicted, including the reactive measures of the squadron in case artillery would be fired again from the Albanian shores. Four ships (two cruisers and two destroyers) and two aircrafts were to participate in the operation; the aircrafts would remain out of sight of Albanian territory and territorial waters until ordered to intervene (in case an armed conflict would erupt). This was not a casual passage from point A to point B with in-line sailing formation and minimally-loaded guns. Expressed in the own words of Legal Adviser Beckett in a letter written to Attorney General Shawcross, the British “[…] were fully prepared for a regular short bombardment of the Albanian batteries and positions if fire was opened. The targets had been selected, air spotting cover arranged etc.” 21 This was a clear provocative action seeking armed conflict within the territorial waters of a sovereign State. The British were also prepared to tape and have video records of every eventuality, and the October 22nd Incident tapes have in fact been issued. After counting all the pros and cons of a potential disclosure of the XCU documents, the British decision leaned more towards a concealment of the facts. In spite of everything, British Admiralty orders concerning the route of the damaged ships were not much relevant to the actual incident. The initial position of Attorney General Shawcross was that “it would be better to disclose the documents, […] as the implications arising from a refusal so to do might be even more sinister than those which would be justified by the documents themselves.” But the Defense Committee of the Cabinet (consisting of the Prime Minister – Clement Attlee, the Defense Min21
ister – Albert Alexander, Foreign Secretary – Eric Beckett, and the First Lord of the Admiralty – George Hall) which was entitled to the final decision-making concluded that a disclosure of the XCU documents could potentially rob the naval passage of its innocent character. 22 The British were determined to win the dispute against Albania at any cost. A loss of the dispute could bring serious political implications to the British Government, so it was of crucial importance to interpret the naval passage as one or an innocent nature, even at the expense of altering the truth. Prior to accepting the lead of Great Britain’s prosecution team in The Hague, Shawcross had very limited knowledge about the Admiralty orders, the XCU documents and their content. As a final decision for concealment was taken, Shawcross commented that, had he known of the documents earlier he would have hesitated to become involved in the proceedings. He “would certainly not become a party to the suppression of evidence in this way were not such serious international issues at stake.” 23 Nonetheless Shawcross accepted the lead of the prosecution team, after expressing (through a letter) his bitterness to the Prime Minister. Part of the text of that letter is quoted below:
It is a fundamental principle of the practice of the Courts of our country and of the conduct of our legal profession that parties to litigation are not entitled to use merely those documents which they think will assist their case and to suppress others which are inimical to it. I must make it clear that neither the Solicitor General, nor myself, nor, I am sure, any of the other members of the Bar who are assisting us in this matter, would for a moment contemplate being parties to the course of conduct now forced upon us by the Admiralty’s failure to procure and produce these documents earlier had our country’s international position not been so gravely involved. As it is, we retain great misgiving about the propriety of what is being done, which we can only justify on the principle ‘my country, right or wrong, my country.’ We all feel that we must insist that circumstances such as these are not allowed to recur. 24
The Albanian blame for the October 22nd incident There is no question that the Albanian Government was in full knowledge of the newly-laid
Carty, (2004) Carty, (2004) 24 rd ADM 1/22504, Hartley Shawcross to Prime Minister, (November 3 , 1948)
minefield in the vicinity of the coasts of Saranda. The question is how much were the Albanians involved in this matter, and whether this was a plan was intended and executed by the Albanian Government (through the logistics and technical help of a more powerful country) or it was imposed on Albania by e third power (possibly one of the Socialist Bloc countries) with the intention of igniting a conflict. The Albanian historian, politician and international relations scholar Paskal Milo has done an excellent investigative job to verify this. In his book “The Hidden Truths of The Corfu Channel Incident” he reveals that:
The minefield was laid by two Yugoslav minesweeping ships during a midSeptember night of 1946 (sometime between September 16th and the 17th to be more precise), in collaboration with the Albanian Government, following a preliminary agreement between the heads of both countries’ governments, Enver Hoxha and Josip Broz Tito, which was in turn preceded by an actual technicaloperational agreement between the headquarters of the Albanian and Yugoslav armies. 25
The hard evidence supporting Milo’s claim (which is included in his book) is retrieved from the governmental archives of diplomatic notes’ facsimiles of Albania, Yugoslavia and the Soviet Union, which – during the later years – were finally made available to the media and historians. Once again, these fresh facts reveal that the Albanian Government was fully aware of, and even assisted to, the mine-laying operation carried out by the Yugoslavs in mid-September, 1946, on the Strait of Corfu.
The 1948 ICJ Case
The proceedings started on November 9, 1949. The British prosecutors spoke at the beginning, charging Albania – on the basis of the 1907 Hague Convention (VIII) relative to the Laying of Automatic Submarine Contact Mines 26 – of laying a fresh minefield in the Corfu Strait, located in the vicinity of Saranda Bay, and carried out between May 15th and October 22nd. Their ar25 26
Milo & Meçollari, (2009) Hague Convention VIII, (1907) – Attached to the end of this paper, as Annex 2
gument consisted in the reasoning that the Channel had been previously swept of minefields from the Royal Navy Fleet and that, when British ships had sailed that route during the May 15th incident, the route was free of mines. Furthermore, when the British minesweepers took their unilateral minesweeping operation on November 12th-13th, 22 German GY-type contact mines were pulled out. A detailed inspection of two of those mines (carried out in Malta) revealed that they were newly-laid mines, free of rust and moss, which were laid no longer than a few months prior to the incident. The British position initially was that, during that 6-month interval, the mines had been laid by the Yugoslavs, with the request of the Albanian authorities. The British team relied heavily on the testimonials of two Yugoslav witnesses, Karel Kovacic (former Lieutenant-Commander in the Yugoslav Navy) and Zhivan Pavlov (former sailor in the Yugoslav Trade Fleet). Kovacic’s testimonial consisted in the presumption that he had witnessed (in the afternoon of October 18th, 1946, from the terrace of his house in Sibenik) the loading with GY-mines of two Yugoslav minesweepers, which were moored at the quay in Panikovac Cove, a small inlet at Sibenik. According to Kovacic, the two ships had sailed from Sibenik during the night, and had returned about October 26th, four days after […] the second Corfu Channel incident. 27 However, when the Court acknowledged that there was no conclusive evidence submitted by the British regarding this claim, the British prosecution team put together another charge, according to which Albania was in knowledge of a mine-laying operation between May 15th and October 22nd, because it was impossible for the mine-laying to be taking place without the agreement (or at least the consent) of the Albanian authorities. In order to come up with a sound conclusion, the Court sent a team of experts to coasts of south Albania. Essentially, the task of these experts was to come up with an opinion on whether
the Albanian coastguards would be able to spot from the distance of their positions a mine-laying operation taking place at night, in normal weather conditions. After taking all the necessary time to complete their task, and even performing a night visibility test (on January 28th, 1949), the finalized experts’ report to the Court stated:
The Experts consider it to be indisputable that if a normal look-out was kept at Cape Kiephali, Denta Point, and St. George's Monastery, and if the look-outs were equipped with binoculars as has been stated, under normal weather conditions for this area, the mine-laying operations […] must have been noticed by these coastguards. 28
Obviously, the Court gave significant weight to the opinion of the experts, and considered this report as a locality examination that gave every guarantee of correct and unbiased information. The Albanian defense attorneys’ turn to speak was set on January 20th-22nd, 1949. (The attorneys that represented Albania were the French Pierre Cot and Joe Nordmann.) In short, the conclusive points of the Albanian defense team were:
• • • • There is no concrete proof that the mines which caused the October 22nd incident were laid by Albania There is no concrete proof that these mines were laid by a third party, on Albania’s account There is no concrete proof that these mines were laid with the help, or consent, of Albania There is no concrete proof that, prior to the October 22nd incident, the Albanian authorities were in knowledge of these mines being laid in Albania’s territorial waters
Consequently, according to international law, Albania cannot be held responsible for the October 22nd explosions that happened in her territorial waters, and for the harm and loss of lives that occurred as a result. 29
Moreover, Albania’s defense team ‘fired back’ to the British charges by asserting its view of October 22nd maneuver carried out by the British. On account of the Albanian Government the attorneys argued that the sovereignty of Albania was violated because the passage of the British
The Corfu Channel Case (Merits), (1949) Milo, (2010)
warships on October 22nd, was neither an innocent passage, nor an ordinary one, but a political mission. The ships were sailing in diamond combat formation with soldiers on board; the position of the guns was not consistent with innocent passage; the vessels passed with crews at action stations; the number of the ships and their armament surpassed what was necessary in order to attain their object and showed an intention to intimidate and not merely to pass; the ships had received orders to observe and report upon the coastal defenses and this order was carried out. 30 In addition, Pierre Cot – the lead attorney of the Albanian defense team – presented to the court proof showing the provocative intentions of Great Britain. It was a telegram of the British Admiral Kinahan sent on October 21st, 1946, to the British Mediterranean Naval Command, through which it was revealed that the British warship sail would be undertaken to also test Albania’s attitude. 31 The validity of this document was admitted by the Great Britain Agent. Moreover, the document stated: “The most was made of the opportunities to study Albanian defenses at close range. These included with reference to XCU […]” 32 Based on the undisputable authenticity of this telegram, the Albanian defense team asked for further evidence regarding military orders for the British Warship Squadron sail on October 22nd, 1946. These orders were the XCU documents. Albania’s request was considered by the court as reasonable and relevant to the case. So based on Article 49 of its Statute and Article 62 of its Rules, 33 the court requested that these documents be produced. As mentioned above, the British refused to produce these documents pleading naval secrecy. At the Albanians surprise, the Court agreed with this consideration of the British and the content of the XCU documents remained concealed.
The Corfu Channel Case (Merits), (1949) Meçollari, (2009) 32 Carty, (2004) 33 Article 49 of the Rome Statute and Article 62 of the I.C.J. Rules are attached to the end of this paper, as Annex 3
The Verdict In April 1949 the Court established that, since the exchange of diplomatic notes – following the May 15th incident – did not lead to any clarification, the British Government wanted to ascertain by other means whether the Albanian Government would maintain its illegal attitude and again impose its view by firing at passing ships. The legality of this measure taken by the British Government cannot be disputed, provided that it was carried out in a manner consistent with the requirements of international law. The ‘mission’ was designed to affirm a right which had been unjustly denied. The British Government was not bound to abstain from exercising its right of passage, which the Albanian Government had illegally denied. In view of the firing from the Albanian battery on May 15th, this measure of precaution was not regarded as unreasonable by the Court. Four warships – two cruisers and two destroyers – passed in a manner that can be deemed as provocative, at a time of excessive political tension in this region. The intention must have been, not only to test Albania's attitude, but at the same time to demonstrate such force that Albanians would abstain from firing again on passing ships. However, considering all the circumstances of the case, as described above, the Court was unable to characterize the measures taken by the United Kingdom authorities as a violation of Albania's sovereignty. In view of a disputable violation of the Albanian territorial waters on October 22nd by the British, the Court gave judgment that Great Britain did not violate the sovereignty of Albania by reason of the acts of the British Navy in Albanian waters on October 22nd, 1946. In view of the responsibility of the Albanian Government for the damage that occurred to the British destroyers, the loss of human lives and the physical harm suffered by the wounded, the Court determined that the Albanian authorities were in fault for “not notifying, for the benefit of
shipping in general, the existence of a minefield in Albanian territorial waters and for failing to warn the approaching British warships of the imminent danger to which the minefield exposed them.” 34 Such obligations are not based on The Hague Convention of 1907, No. VIII, as the British claimed. Rather, they are based on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. Albania neither notified the existence of the minefield, nor warned the British warships of the danger they were approaching. In regard to everything mentioned above, the Court concluded that Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon Albania to pay compensation to the United Kingdom. The amount of compensation that Albania was bound to pay to Great Britain was almost identical to the figure that the British prosecution team requested at the beginning of the case: £843,947. In view of the legality of “Operation Retail,” the minesweeping operation carried out unilaterally by the British on November 12th-13th inside the Albanian territorial waters, the Court did not accept Great Britain’s line of defense, and it regarded the operation as a violation of the international law. The Court, however, did recognize the Albanian Government's complete failure to carry out its duties after the explosions, and the slacking nature of its diplomatic notes, which to a certain extent, justified the action of the British Government. It is necessary to point out that the Court never dug into the ‘mystery’ of who laid the mines, if Albania was unable to do so because of her lack of logistics and technical capabilities and knowhow. The Court rejected the claims of the British party that the mines were laid by the Yu34
The Corfu Channel Case (Merits), (1949)
goslavs with the knowledge of the Albanian Government, declaring that there was insufficient evidence to reach to such conclusion.
How fair was it, and what were the consequences for Albania? Many questions have been raised about the fairness of this case’s verdict. It is essential to note the particularity of this controversial case; it was the very first dispute assumed by the I.C.J. (an organ of the U.N., which in turn was established only one year prior to the incident). Great Britain was one of the U.N. ‘pillar’ states; one of the five veto bearers in the U.N. Security Council. WWII was over since no longer than a year, and Great Britain was one of the triumphal Powers. Considering these facts alone, it is easy to assume that Great Britain was in a much favorable position compared to virtually unknown Albania. Nevertheless, several unanswered questions remained since the Court’s final verdict was communicated. A careful interpretation of this whole controversial case lead to some strong points, which the Court (unwillingly or not) failed to consider: • • Is the Corfu Channel, in the legal sense, an international strait? Was the international law – in terms of innocent passage – respected by the Royal Nay Squadron on October 22nd, 1946? • Did Albania enjoy the right to deny casual passage to foreign ships which would trespass on her territorial waters, including in the Corfu Strait? • • • What status did the British Military have in regard to Albania in 1946? Was the charge against Albania ever asserted by conclusive evidence? What responsibility did the State that laid the minefield bear?
All these inquiries did not receive proper answer by the verdict of the I.C.J., and on these
grounds alone the verdict is considered partial by several historians and law scholars in Albania. Albania never paid its obligation to Great Britain during the Communist rule; it was finally paid by the democratic government in the beginning of the 90s. Enver Hoxha always regarded the I.C.J. decision as unjust, one-sided and oppressive to the equal rights of the smaller nations such as Albania. This disobedience to the international law caused grave consequences for the economy and international relations of Albania. In response to Albania’s refusal to pay her dues the British Government froze considerable Albanian assets in the banks of Great Britain – the Albanian Government treasury gold, which was taken by the Germans during WWII, and later collected by the British after the war. Albania suffered major political consequences as well. The incident aggravated the country’s international relations with Great Britain, as well as all the Western powers. As a result, Albania was not accepted in the U.N. and went through a number of other obstacles with regard to her international recognition in the global arena. The West imposed on Albania an economic embargo as well, even though this was (to a good extent) absorbed by the economic help of the Soviet Union, the other countries of the Communist Bloc, and China.
On October 22nd, 1946, the British came to Saranda Bay prepared to carry out a short naval warfare. The mission was designed to ‘teach Albania a lesson’ for not respecting the casual passage norms of international law earlier that year. The incident was provoked by the British, but the British did not expect to pay such a high price as a consequence of ‘showing who is the boss.’ It was a time of high regional tension between Albania and Greece, the diplomatic relations
between these two States were at an all-time low, and even a state of war was in place. The Albanian Communist Government was just established, still very fragile, and very much overthrowing prone by the reactionary outside forces. Enver Hoxha feared very much a confrontation with Greece in the Albanian southern border, and did everything in his power to not allow a Greek raid erupt in Saranda. Even the mines were laid by the Yugoslavs with Albania’s consent to not withhold a possible Greek-British naval operation form the sea. The British were far from welcomed also, since they were considered allies with the Greeks, had naval bases in Greece and Corfu, and were part of Western Powers Bloc. The I.C.J. failed to recognize the gravity of the situation in the Albanian southern border, and charged Albania for a mine-laying operation, which should have been (to a certain extent) justified given the high tension in the region and the state of war. It should also be considered that the Albanian authorities and the Albanian delegation in The Hague were poorly prepared for this case. They had very poor knowledge of international law and regulations, and were too powerless to match the virtuosity of the British Prosecution Team. Another major shortcoming of the Court was the decision to not hold Great Britain responsible for refusing to produce the XCU documents. Were those documents made available for the Court to review, the outcome of this case would have probably been totally different. In closure, it is pertinent to paraphrase the last statement of Albania’s lead attorney, Pierre Cot, in his speech prior to the Court’s verdict: “In front of this sacred institution, not only the small and the weak, but the mighty and the powerful too, must learn to behave themselves.” 35
1907 Hague Conference. (1907, October 18). Convention (VIII) relative to the Laying of Automatic Submarine Contact Mines. The Hague, The Netherlands. U.N.S.C. Resolution 22 (The United Nations Security Council April 9, 1947). The Corfu Channel Case (Merits), 1 (The International Court of Justice 1947–1949). Cartey, A. (2004). The Corfu Channel Case – And The Missing Admiralty Orders. The Law and Practice of International Courts and Tribunals. Hoxha, E. (1984). The Anglo-American Threat to Albania (English Translation). Tirana: "8 Nëntori" Publishing House. Kinahan, H. R. (1946, October 5). The Use of North Channel, Corfu. Memorandum, N°. 0321/13. Famagusta. Maher, L. (2005). Half Light Between War and Peace: Herbert Vere Evatt, The Rule of International Law and The Corfu Channel Case. Journal of Legal History, 47, 47. Meçollari, A. (2009). The Corfu Channel Incident: Biased Justice. Vlora: Triptik. Milo, P. (2010). The Hidden Truths: Corfu Channel Incident. Tirana: Botimet "Toena". Milo, P., & Meçollari, A. (2009). Incidenti i Kanalit te Korfuzit (on "Shqip" - a "Top Channel" flagship broadcasting show in Albania). (R. Xhunga, Interviewer) Paul, J., & Spirit, M. (2008). Corfu Channel Incidents - 1946. Retrieved September 18, 2011, from Britain's Small Wars: http://britains-smallwars.com/Cold-war/corfu.html Pearson, O. (2006). Albania as Dictatorship and Democracy. NYC: The Centre for Albanian Studies. The International Court of Justice. (n.d.). Article 49 of the Rome Statute & Article 62 of I.C.J. Rules. The Hague, The Netherlands: Retreived from: <http://www.icjcij.org/documents/index.php?p1=4>. Vickers, M. (2007, January). The Cham Issue - Where to Now. Conflict Studies Research Centre, Shrivenham, United Kingdom. Walbel, M. (2009). Corfu Channel Case. In R. Wolfrum, Max Planck Encyclopedia of Public International Law. Oxford University Press. Zanga, L. (1987, September 3). Lifting Of The Greek-Albanian State Of War. RADIO FREE EUROPE Research. Tirana, Albania.
Annex -1PUBLIC RECORD OFFICE Ref.: ADM 1 22704 No. 0321/13 MEMORANDUM. 5th October, 1946.
THE USE OF THE NORTH CHANNEL, CORFU (Short Title XCU) References. Chart No. 206 Map 1/100000 GREECE. Sheet Z2. KERKIRA. Map 1/50000 ALBANIA. Sheet 26 (iv). SARANDA Air photographs. C.B. 1806 (D) (11/43).
On 15th May 1946 while I was approaching CORFU ROADS by the North Channel in H.M.S. ORION with H.M.S. SUPERB in company, the squadron was fired on by unseen batteries on the Albania Shore in the vicinity of PORTO EDDA (SARANDE). 2. Since that date action has been proceeding through diplomatic channels and the Albanian Government have been informed that His Majesty's Government insist on their right to use the North Channel for the passage of H.M. Ships without prior notification being given to the Albanian authorities. The Albanian Government have also been informed that in the event of H.M. Ships being fired on again, fire will be returned. 3. It has been decided to test the Albanian reactions to the above diplomatic notes by making use of the North Channel, Corfu, on 22nd October 1946 for the passage of H.M. Ships MAURITIUS, LEANDER, SAUMAREZ and VOLAGE from Corfu to Argostoli. H.M.S. OCEAN will be in the offing so that air spotting will be available if required. The Commander-in-Chief Mediterranean will adjust the programmes of H.M. Ships LEANDER, OCEAN and RAIDER accordingly. 4. It is my intention to sail from Corfu Roads p.m. on 22nd October with the two cruisers and the two destroyers and follow Medri route 18/34 through the North Channel. Hands are to be at Action Stations with the armament at short notice to open fire but all the armament is to be kept trained and layed in the normal securing positions unless and until the Albanian batteries open fire. The number of men in exposed positions is to be reduced to the minimum essential. Cruisers are to wear ten breadth ensigns and destroyers eight breadth ensigns at the ensign staffs. 5. Two spotting aircraft from H.M.S. OCEAN are to be airborne and in W/T touch with H.M.Ships but these aircraft are to remain out of sight of Albanian territory and territorial waters until ordered to close. H.M. Ships OCEAN and RAIDER will be to the westward of Corfu. 6. Further instructions will be given regarding the tactics to be followed if the Albanian batteries open fire but the following information is promulgated now:–
Annex -1(a) Minefields.
The area in which ships can operate is restricted by QBY 257 and 539. All known minefields in QBY 539 are SOUTH of Latitude 39°49' North but the northern portion of this QBY is not to be entered except in emergency. As regards QBY 257, ships may operate in that portion bounded by a line joining:(i) SCOTENI point on MERLERA. (ii) 39° 54’ 6” North: 19° 53’ 30” East. (iii) 39° 49’ 36” North: 19° 51’ 0” East. The minefield shown on plan 1013 of C.B. 1806 (D) (11/43) in Sarande Bay can be disregarded. (b) Gun positions and air photographs. No guns or gunflashes could be seen on 15th May. Fire was opened as H.M. ships were turning in Medri route 18/34 to a southerly course off DENTA point and continued until ships appeared to be out of range off MARCHETTA rock. Calibre of gun believed not to exceed 4-inch. Subsequently air photographs of the whole area were obtained. The most likely positions for the guns and the P.R.U. observer’s comments are as follows:(i) MR 315795. 4 gun CD position. Two emplacements occupied by possible guns under covers. (ii) MR 337795. Signs of considerable fresh activity, trenching etc., but no CD guns visible. (iii) MR 344800. Possible occupied 4-gun L.A.A. position (iv) MR 304800 and 307797. Unoccupied position with much trenching, probably fairly new. No guns visible, no large emplacements. (v) MR 333763. 4-gun CD position – unoccupied. No activity. The positions at (i) and (ii) seem the most probable. 7. This memorandum is classified TOP SECRET as it is essential that our intention should not become known to the Greeks particularly in Corfu. Commanding Officers addressed may communicate the contents of this memorandum to those officers who will be required to plan the operation, and when it becomes essential to make further preparations it is suggested that they should be disguised as preparations for a full calibre firing on the passage to Argostoli. H.R.G. KINAHAN Rear-Admiral Commanding First Cruiser Squadron. Distribution The Commanding Officers, H.M. Ships MAURITIUS, LEANDER and OCEAN. The Captain (D), 3rd Destroyer Flotilla. Copies to: The Commander-in-Chief, Mediterranean Station (afloat) The Commander-in-Chief, Mediterranean Station, (Malta).
Annex -1PUBLIC RECORD OFFICE Ref.: ADM 1 22704 Enclosure No. One to Mediterranean Letter N°. 1947/516/3/10 dated 1st October 1948 TOP SECRET H.M.S. MAURITIUS at Famagusta, 13th October, 1946. N°. 0321/13 MEMORANDUM XCU ONE - PLAN OF OPERATIONS (Further memorandum XCU dated 5th October, 1946) Tab A PRELIMINARY MOVEMENTS (a) Ships taking part will be organised in three groups:– Group I – H.M. Ships MAURITIUS and SAUMAREZ Group II – H.M. Ships LEANDER and VOLAGE Groupe III – H.M. Ships OCEAN and RAIDER (b) Groups I and II leave Corfu reads p.m. 22nd October and proceed northwards in MEDRI route 18/34(b). Speed: 10 knots, interval between groups: 2 miles. 2. (a) The Rear-Admiral Commanding First Cruiser Squadron will inform H.M.S. OCEAN of his intended time of sailing from Corfu. H.M.S. OCEAN is to sail from Githian so as to be in position S.W. of Corfu at that time. (b) One spotting aircraft for each cruiser is to be airborne when Groups I and II leave Corfu roads but is to remain at least 10 miles from the Albanian coast in the area between MEHLERA Island and Cape Drasti until ordered to close by the Rear-Admiral Commanding First Cruiser Squadron. RESTRICTIONS 3. (a) It is emphasised that we must take NO action against the Albanian faroes unless and until they commit a hostile act. (b) Every endeavour must be made to avoid damage to civilian property. Opening salvoes must be directed well clear of the village and the process of ranging is to be carried out as if “danger to the troops” existed in the village. METHOD 4. (a) Ships (a) A.F.C.T. is to be started in the vicinity of BARCHETTA rock but all armament is to remain in the normal securing position unless and until the Albanian batteries open fire. (b) Lockouts are to be organised so that all likely Albanian gun positions are under constant watch throughout the passage of the channel. (c) If the Albanian batteries take no action Groups I and II will turn to the westward off Cape Kiephali and proceed to Angostoli.
Annex -1(d) If the Albanian batteries open fire Group I is to operate North of QBY 539 and East of QBY 257. Group II is to operate in MEDRI route 18/34 South of DENTA point, except when turning. Cruisers are to open fire on the gun positions as soon as they can be located, using air spotting. (e) Destroyers are to be prepared to carry out direct bombardment if ordered to do so. (f) Cruisers are to operate their W.A. Radar from the time of leaving Corfu until ordered by the Rear-Admiral Commanding First Cruiser Squadron. 5. Aircraft (a) Spotting aircraft are to class the cruisers when ordered to do so by the Rear-Admiral Commanding First Cruiser Squadron. Unless the gun positions are pointed out to them they are to carry out a reconnaissance over the KARANIE district at a safe height. (b) There are likely to be A.A. guns in the area and the presence of Albanian fighters cannot be ruled out. (c) H.M.S. OCEAN is to operate a Combat Air Patrol in her vicinity throughout the operation and until our forces are well clear of the Albanian coast. DURATION OF THE OPERATION 6. Should the Albanian guns open fire it is hoped that retaliatory action will be completed within an hour. TARGET IDENTIFICATION 7. Five known targets are given in paragraph 6(b) of my memorandum XCU (No. 0321/13 of 5th October, 1946). Tab A. They are to be identified by the numbers one to five given to them in that paragraph. Further targets are to be numbered in sequence. COMMUNICATIONS 8. (a) Air Spotting Call Sign Spotting Aircraft Frequency (i) Ship Call Sign MAURITIUS King 1 Able 1 144 mo/s SPARE “ Able 2 124 mo/s LEANDER King 3 Able 3 130 mo/s OCEAN “ Able 0 All three (ii) Ships are to set watch on their appropriate spotting waves and establish communication with their aircraft on sailing (see paragraph 2(a)). (b) Inter-communication (i) Manoeuvring waves are as follows:Group I – 72.5 mo/s Group II – 65.34 mo/s Group III – 65.74 mo/s Watch on these waves is to be ordered by the Senior Officers of Groups. (ii) Force Wave. Senior Officers of Groups are to detail a guard on force wave (4205 kc/s WH/T). Watch is to be set and communication established at 0800H 22nd October.
Annex -1TOP SECRET (iii) Shadowing Wave. Should communication not be established at 0800H 22nd October on Force wave or should communication on Force wave fail, Senior Officers of Groups are at once to set watch on shadowing wave (230 kc/s). (c) Area Broadcast Ships are to read their own “M” or “MD” series as appropriate. (d) C.A.P. Communications (i) Cruisers of groups I and II are to set watch on 124 mo/s, and be prepared to direct fighters of the C.A.P. from the time of sailing (see paragraph 2(a)). (ii) Call signs. Ships to use their own. C.A.P. aircraft as appropriate. (e) Inter-force air wave Senior Officers of Groups are to set watch and establish communication on Inter-force air wave (4000 kc/s) on sailing (see paragraph 2(a)). (f) At 1000B on 22nd October H.M.S. OCEAN will fly off an aircraft to test spotting frequencies with the cruisers at Corfu.
REAR-ADMIRAL COMMANDING FIRST CRUISER SQUADRON Distribution The Commanding Officers, H.M. Ships MAURITIUS and LEANDER The Commanding Officer, H.M.S. OCEAN (with an additional copy for supply to H.M.S. RAIDER). The Captain (D), 3rd Destroyer Flotilla (with an additional copy for supply to H.M.S. VOLAGE) (Copies to: The Commander-in-Chief, Mediterranean Station (Afloat) The Commander-in-Chief, Mediterranean Station (Malta). I certify that this paper has been in the custody of the Commander-inChief Mediterranean Station since its receipt and has suffered no alteration.
1st October 1948
Annex -2Document printed from the ICRC w eb site on the 06.10.2011
Convention (VIII) relative to the Laying of Automatic Submarine Contact Mines. The Hague, 18 October 1907.
Full text (List of Contracting Parties) Inspired by the principle of the freedom of sea routes, the common highway of all nations; Seeing that, although the existing position of affairs makes it impossible to forbid the employment of automatic submarine contact mines, it is nevertheless desirable to restrict and regulate their employment in order to mitigate the severity of war and to ensure, as far as possible, to peaceful navigation the security to which it is entitled, despite the existence of war; Until such time as it is found possible to formulate rules on the subject which shall ensure to the interests involved all the guarantees desirable; Have resolved to conclude a Convention for this purpose, and have appointed the following as their Plenipotentiaries: (Here follow the names of Plenipotentiaries) Who, after having deposited their full powers, found in good and due form, have agreed upon the following provisions:
Article 1. It is forbidden -1. To lay unanchored automatic contact mines, except when they are so constructed as to become harmless one hour at most after the person who laid them ceases to control them; 2. To lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings; 3. To use torpedoes which do not become harmless when they have missed their mark.
Art. 2. It is forbidden to lay automatic contact mines off the coast and ports of the enemy, with the sole object of intercepting commercial shipping.
Art. 3. When anchored automatic contact mines are employed, every possible precaution must be taken for the security of peaceful shipping. The belligerents undertake to do their utmost to render these mines harmless within a limited time, and, should they cease to be under surveillance, to notify the danger zones as soon as military exigencies permit, by a notice addressed to ship owners, which must also be communicated to the Governments through the diplomatic channel.
Art. 4. Neutral Powers which lay automatic contact mines off their coasts must observe the same rules and take the same precautions as are imposed on belligerents. The neutral Power must inform ship owners, by a notice issued in advance, where automatic contact mines have been laid. This notice must be communicated at once to the Governments through the diplomatic channel.
Art. 5. At the close of the war, the Contracting Powers undertake to do their utmost to remove the mines which they have laid, each Power removing its own mines. As regards anchored automatic contact mines laid by one of the belligerents off the coast of the other, their position must be notified to the other party by the Power which laid them, and each Power must proceed with the least possible delay to remove the mines in its own waters.
Art. 6. The Contracting Powers which do not at present own perfected mines of the pattern contemplated in the present Convention, and which, consequently, could not at present carry out the rules laid down in Articles 1 and 3, undertake to convert the ' matériel ' of their mines as soon as possible, so as to bring it into conformity with the foregoing requirements.
Art. 7. The provisions of the present Convention do not apply except between Contracting Powers, and then only if all the belligerents are parties to the Convention.
Art. 8. The present Convention shall be ratified as soon as possible. The ratifications shall be deposited at The Hague. The first deposit of ratifications shall be recorded in a ' procès-verbal ' signed by the representatives of the Powers which take part therein and by the Netherlands Minister for Foreign Affairs. The subsequent deposits of ratifications shall be made by means of a written notification addressed to the Netherlands Government and accompanied by the instrument of ratification. A duly certified copy of the ' procès-verbal ' relative to the first deposit of ratifications, of the notifications mentioned in the preceding paragraph, as well as of the instruments of ratification, shall be at once sent, by the Netherlands Government, through the diplomatic channel, to the Powers invited to the Second Peace Conference, as well as to the other Powers which have adhered to the Convention. In the cases contemplated in the preceding paragraph, the said Government shall inform them at the same time of the date on which it has received the notification.
Art. 9. Non-Signatory Powers may adhere to the present Convention. The Power which desires to adhere notifies in writing its intention to the Netherlands Government, transmitting to it the act of adhesion, which shall be deposited in the archives of the said Government. This Government shall at once transmit to all the other Powers a duly certified copy of the notification as well as of the act of adhesion, stating the date on which it received the notification.
Art. 10. The present Convention shall come into force, in the case of the Powers which were a party to the first deposit of ratifications, sixty days after the date of the ' procès-verbal ' of this deposit, and, in the case of the Powers which ratify subsequently or adhere, sixty days after the notification of their ratification or of their adhesion has been received by the Netherlands Government.
Art. 11. The present Convention shall remain in force for seven years, dating from the sixtieth day after the date of the first deposit of ratifications. Unless denounced, it shall continue in force after the expiration of this period. The denunciation shall be notified in writing to the Netherlands Government, which shall at once communicate a duly certified copy of the notification to all the Powers, informing them of the date on which it was received. The denunciation shall only have effect in regard to the notifying Power, and six months after the notification has reached the Netherlands Government.
Art. 12. The Contracting Powers undertake to reopen the question of the employment of automatic contact mines six months before the expiration of the period contemplated in the first paragraph of the preceding article, in the event of the question not having been already reopened and settled by the Third Peace Conference. If the Contracting Powers conclude a fresh Convention relative to the employment of mines, the present Convention shall cease to be applicable from the moment it comes into force.
Art. 13. A reg ister kept by the Netherlands Ministry for foreign Affairs shall give the date of the deposit of ratifications made in virtue of Article 8, paragraphs 3 and 4, as well as the date on which the notifications of adhesion (Article 9, paragraph 2) or of denunciation (Article 11, paragraph 3) have been received. Each Contracting Power is entitled to have access to this register and to be supplied with duly certified extracts from it. In faith whereof the Plenipotentiaries have appended their signatures to the present Convention. Done at The Hague, 18 October 1907, in a single copy, which shall remain deposited in the archives of the Netherlands Government, and duly certified copies of which shall be sent, through the diplomatic channel, to the Powers which have been invited to the Second Peace Conference. (Here follow signatures)
Article 49 – Statute of the Court
The Court may, even before the hearing begins, call upon the agents to produce any document or to supply any explanations. Formal note shall be taken of any refusal.
Article 62 – Rules of the Court (1978)
1. The Court may at any time call upon the parties to produce such evidence or to give such explanations as the Court may consider to be necessary for the elucidation of any aspect of the matters in issue, or may itself seek other information for this purpose.
2. The Court may, if necessary, arrange for the attendance of a witness or expert to give evidence in the proceedings.
* Retrieved from the I.C.J. website - http://www.icj-cij.org/documents/index.php?p1=4