10 July 2002

 

General List No. 126

 
     

international Court of Justice

     
 

Armed Activities on the Territory of the Congo

 
     

Congo

 

v. 

Rwanda

     
     
 

Order

 
     
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BEFORE: President: Guillaume
   
PermaLink: http://www.worldcourts.com/icj/eng/decisions/2002.07.10_congo.htm
   
Citation: Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), 2002 I.C.J. 219 (Order of July 10)
   
Represented By: Congo: H.E. Mr. Jacques Masangu-a-Mwanza;
H.E. Mr. Alphonse Ntumba Luaba Lumu;
Mr. Lwamba Katansi;
Mr. Pierre Akele Adau;

Rwanda: H.E. Mr. Gerard Gahima;
Mr. Christopher Greenwood.

 
     
 
 
     
 

[p.219]
The International Court of Justice,

Composed as above,

After deliberation,

Having regard to Articles 41 and 48 of the Statute of the Court and to Articles 73 and 74 of the Rules of Court,

Makes the following Order:

1. Whereas, by an Application filed in the Registry of the Court on 28 May 2002, the Democratic Republic of the Congo (hereinafter "the Congo") instituted proceedings against the Rwandese Republic (herein-[p 220]after "Rwanda") in respect of a dispute concerning "massive, serious and flagrant violations of human rights and of international humanitarian law" alleged to have been committed "in breach of the 'International Bill of Human Rights', other relevant international instruments and mandatory resolutions of the United Nations Security Council"; and whereas in the Application the Congo states that "[the] flagrant and serious violations [of human rights and of international humanitarian law]" of which it complains "result from acts of armed aggression perpetrated by Rwanda on the territory of the Democratic Republic of the Congo in flagrant breach of the sovereignty and territorial integrity [of the latter], as guaranteed by the United Nations and OAU Charters";

2. Whereas in this Application the Congo recalls that it has made a declaration recognizing the compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute of the Court; and whereas it states that the Rwandan Government 'has made no such declaration of any sort"; whereas in the Application the Congo, referring to Article 36, paragraph 1, of the Statute, relies, in order to found the jurisdiction of the Court, on Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination of 7 March 1966 (hereinafter the "Convention on Racial Discrimination"), Article 29, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979 (hereinafter the "Convention on Discrimination against Women"), Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (hereinafter the "Genocide Convention"), Article 75 of the Constitution of the World Health Organization of 22 July 1946 (hereinafter the "WHO Constitution"), Article XIV, paragraph 2, of the Constitution of the United Nations Educational, Scientific and Cultural Organization of 16 November 1945 (hereinafter the "Unesco Constitution") (as well as Article 9 of the Convention on the Privileges and Immunities of the Specialized Agencies of 21 November 1947, which is "also applicable to Unesco"), Article 30, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (hereinafter the "Convention against Torture"), and Article 14, paragraph 1, of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971 (hereinafter the "Montreal Convention");

3. Whereas in its Application the Congo furthermore maintains that the Vienna Convention on the Law of Treaties of 23 May 1969 gives the Court jurisdiction to settle disputes arising from the violation of peremptory norms (jus cogens) in the area of human rights, as those norms are reflected in a number of international instruments;

4. Whereas in its Application the Congo com ends that Rwanda has been guilty of "armed aggression" from August 1998 up to the present; and whereas it maintains that the occupation by Rwandan troops of "a [p 221] significant part of the eastern [territory]" of the Congo has involved "large-scale massacres" in Sud-Kivu, in the province of Katanga and in Orientale Province, "rape and sexual assault of women", "murders and abductions of political figures and human rig'its activists", "arrests, arbitrary detentions, inhuman and degrading treatment", "systematic looting of public and private institutions [and] theft of property of the civilian population", "human rights violations committed by the invading Rwandan troops and their 'rebel' allies in the major cities in the eastern [territory]" of the Congo, as well as "destruction of fauna and flora" of the country; and whereas in this Application the Congo refers to breaches of international law that Rwanda is alleged to have committed in respect of the various treaties, conventions end rules of customary law which it cites;

5. Whereas the Congo adds that, by its Application, it

"seeks to secure the earliest possible cessation of the acts of which it is a victim involving serious human rights violations in respect of its people, which constitute a grave threat to peace and security in central Africa generally and in the Great Lakes region in particular",

and "also seeks reparation for acts of intentional destruction and looting, and the restitution of national property and resources appropriated for the benefit of Rwanda";

6. Whereas at the close of its Application the Congo submits as follows:

"Accordingly, while reserving the right to supplement and elaborate upon this request in the course of the proceedings, the Democratic Republic of the Congo requests the Court to:

Adjudge and declare that:

(a) Rwanda has violated and is violating the United Nations Charter (Article 2, paragraphs 3 and 4) by violating the human rights which are the goal pursued by the United Nations through the maintenance of international peace and security, as well as Articles 3 and 4 of the Charter of the Organization of African Unity;

(b) Rwanda has violated the International Bill of Human Rights, as well as the main instruments protecting human rights, including, inter alia, the Convention on the Elimination of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, the Constitution of the WHO, the Constitution of Unesco;

(c) by shooting down a Boeing 727 owned by Congo Airlines on 9 October 1998 in Kindu, thereby causing the death of 40 civilians, Rwanda also violated the Unitec Nations Charter, the [p 222] Convention on International Civil Aviation of 7 December 1944 signed at Chicago, the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970 and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971;

(d) by engaging in killing, massacring, rape, throat-slitting, and crucifying, Rwanda is guilty of genocide against more than 3,500,000 Congolese, including the victims of the recent massacres in the city of Kisangani, and has violated the sacred right to life provided for in the Universa Declaration of Human Rights and in the International Covenant on Civil and Political Rights, the Convention on the Prevention and Punishment of the Crime of Genocide and other relevant international legal instruments.

In consequence, and in accordance with the international legal obligations referred to above, to adjudge and declare that:

(1) all Rwandan armed forces at the root of the aggression shall forthwith quit the territory of the Democratic Republic of the Congo, so as to enable the Congolese people to enjoy in full their rights to peace, to security, to their resources and to development;

(2) Rwanda is under an obligation to procure the immediate, unconditional withdrawal of its armed forces and the like from Congolese territory;

(3) the Democratic Republic of the Congo is entitled to compensation from Rwanda for all acts of looting, destruction, slaughter, removal of property or persons and other acts of wrongdoing imputable to Rwanda, in respect of which the Democratic Republic of the Congo reserves the right to establish a precise assessment of the prejudice at a later date, in addition to restitution of the property removed.

It also reserves the right in the course of the proceedings to claim other injury suffered by it and its people";

7. Whereas on 28 May 2002, after filing its Application, the Agent of the Congo submitted a request for the indication of provisional measures relying on Article 41 of the Statute of the Court and Articles 73 and 74 of its Rules;

8. Whereas, in support of its request for the indication of provisional measures, the Congo notes

"continuing grave, flagrant, large-scale acts of torture, cruel, inhuman or degrading punishment or treatment, genocide, massacre, war crimes and crimes against humanity, discrimination, violation of the rights of women and children, and the plundering of resources, committed on the territory of the Democratic Republic of the Congo [p 223] following the armed aggression against and on its territory and the illegal occupation of a large part of that territory by Rwandan regular forces";

whereas according to the Congo "[t]he above-mentioned acts are due to the continuation and aggravation of the armed aggression against and on the territory of the DRC"; and whereas according to the Congo, the request for the indication of provisional measures

"is justified by the fact that, in addition to the flagrant, massive, grave violations and breaches set out in the Application instituting proceedings, further acts of wrongdoing have been committed by Rwanda, aggravating the violations of the lawful rights of the DRC and of its population and constituting grave violations of specific international legal instruments concerning human rights and international humanitarian law";

9. Whereas in this request for the indication of provisional measures the Congo relies on the grounds for the jurisdiction of the Court cited in its Application (see paragraphs 2 and 3 above);

10. Whereas in its request for the indication of provisional measures the Congo notes,

"[i]n addition to the numerous heinous crimes perpetrated by Rwanda as set out in the Application instituting proceedings . . . [that] the massacres (begun in August 1998) have continued since January 2002 up to the present time, despite numerous resolutions of the Security Council of the United Nations and of its Commission on Human Rights";

whereas it refers to the "flagrant violation of the Lusaka Ceasefire Agreement", "mass killings", "massive grave and flagrant violations of human rights", "abductions", as well as "the infliction of cruel, inhuman and degrading treatment on the population"; whereas it observes that "[t]he decimation is likely to become total, following fresh deployments of Rwandan troops since 22 May 2002 for the purpose of achieving a further genocide"; and whereas it refers to

"[n]umerous sources, including churches, human rights NGOs and MONUQ, reporting] the grave human rights violations perpetrated by the rebel troops of the RCD [and] by the occupying forces of the RPA in the course of these incidents";

11. Whereas in the request for the indication of provisional measures the Congo contends that "to fail to make an immediate order for the measures sought would have humanitarian consequences which could never be made good again ... in the short term or in the long term"; whereas it adds that

"recent pleas, reports and resolutions by the principal organs of the United Nations, which show how the continuing conflict in the [p 224] Democratic Republic of the Congo is causing massive human rights violations, insist on the urgency of securing the departure of Rwandan forces from Congolese territory and the cessation of the massacres, killings and acts of oppression against the population";

whereas in this connection it cites United Nations Security Council resolution 1304 (2000) of 16 June 2000;
12. Whereas the Congo adds that

"the Court is accordingly requested to order appropriate measures with a view, inter alia, to permitting the implementation of . . . resolution [2000/14] of the United Nations Commission on Human Rights[, adopted on 19 April 2002,] to taking account of the urgency of the situation and to preventing it becoming both irreparable (which, in many respects, it already has) and irreversible";

13. Whereas at the close of its request the Congo states:

"In consequence of the continuation and aggravation of the flagrant massive violations by Rwanda of general and customary international law, in particular of the above-mentioned Conventions and Charters, and pending the Court's decision on the merits and in order to prevent irreparable harm being caused to its lawful rights and to those of its population as a result of the occupation of part of its territory by Rwandan forces, the Democratic Republic of the Congo, with a view to putting an end to present evils and averting the worst, requests the Court to order the following provisional measures:

1. That Rwanda, its agents and auxiliaries he required forthwith to cease and desist from:

The war of aggression in and against the DRC and the occupation of its territory, the said war being the source and cause of all of the massive, grave and flagrant violations of human rights and of international humanitarian law:

— all violations of the sovereignty, territorial integrity or political independence of the Democratic Republic of the Congo, including all intervention, direct and indirect, in the internal affairs of the Democratic Republic of the Congo;

— all use of force, direct or indirect, overt or covert, against the Democratic Republic of the Congo and all threats of use of force against the Democratic Republic of the Congo and its peoples;

— the continuing siege of centres of civil population, in particular Kisangani (demilitarization demanded by numerous resolutions of the United Nations Security Council), and of other towns invaded by Rwandan forces;

— acts which result in the civil population of the Democratic [p 225] Republic of the Congo being deprived of foodstuffs and having difficult and inhuman living conditions inflicted upon them;

— the indiscriminate and savage devastation ... of towns, districts, villages and religious institutions in the Democratic Republic of the Congo, above all in territory occupied by their forces;

— murder, summary execution, torture, rape and the detention of the Congolese peoples, the plundering of the resources of the Democratic Republic of the Congo.
2. That the Court recognize that the Democratic Republic of the Congo has an inalienable sovereign right:

— to demand that its territorial integrity be guaranteed and respected;

— to demand of the United Nations that Rwandan forces forthwith unconditionally vacate its territory, in accordance with the Charter and with the relevant resolutions of the United Nations Security Council, in order to enable its population to have full enjoyment of its rights;

— to enjoy its natural resources in accordance with resolution 1803 (XVII) of 14 December 1962 of the United Nations General Assembly;

— to defend itself and to defend its people, n exercise of its right of self-defence pursuant to Article 51 of the United Nations Charter and to customary international law, for so long as it shall continue to suffer aggression at the hands inter alia of Rwanda, the cost of which in human lives is increasing daily.

3. In order to prevent irreparable harm, the Democratic Republic of the Congo asks the Court to adjudge and declare that:

— Rwanda has violated, and is violating, gravely, flagrantly and on a massive scale, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in particular by intentionally inflicting torture and acute suffering and pain, both physical and mental, on a major part of the Congolese people; the United Nations Charter, the OAU Charter, the International Bill of Human Rights and all the other relevant legal instruments relating to human rights and international humanitarian law;

— Rwanda must put an end to acts prohibited by the Convention on the Prevention and Punishment of the Crime of Genocide, in particular the destruction, in whole or in part, of Congolese national or ethnic groups; the murder and assassination of members of such groups, the grave violations of their physical or mental integrity, the intentional inflict on members of such groups of conditions of life calculated to bring about their physical destruction in whole or in part; the deportation of children. [p 226] the systematic use of rape and the deliberate spread of HIV among Congolese women;

— Rwanda must put an end to acts prohibited by the International Convention on the Elimination of All Forms of Racial Discrimination, and in particular the restrictions aimed at persons belonging to national or ethnic groups specific lo the DRC; [to] acts of non-recognition or nullification of their fundamental rights, such as the right to life, the right to physical and mental integrity, the right to education, etc.;

— Rwanda must put an end to acts covered by the terms of the Convention on the Elimination of All Forms of Discrimination against Women, in particular the right to life, to physical and mental integrity, to dignity, to health, . . .;

— Rwanda must put an end to acts contrary to its obligations deriving from its membership of the WHO and to attacks on the physical and mental health of the Congolese people;

— Rwanda must put an end to all acts of direct and indirect aggression against the DRC; to all use of force, direct or indirect, against the DRC, the fundamental cause of all the flagrant, massive and grave violations of the above-mentioned Conventions being linked to the persistent grave breaches of the sovereignty, territorial integrity and independence of the DRC;

— Rwanda must pay to the DRC, in the letter's own right and as parens patriae of its citizens, fair and just reparation on account of the injury to persons, property, the economy and the environment as a result of the above-mentioned violations of international law, the amount of which shall be determined by the Court. The Democratic Republic of the Congo reserves the right to submit to the Court a precise estimate of the damage caused by Rwanda.

— May it please the Court, in order to preserve the lawful rights and resources of the Congo and its people: — to order an embargo on the delivery of arms to Rwanda, a freeze on all military assistance and other aid and an embargo on gold, diamonds, coltan and other resources and assets derived from the systematic plunder and illegal exploitation of the wealth of the DRC lying within its occupied part;

— the rapid installation of a force to separate the combatants and impose peace along the frontiers of the DRC with Rwanda and with the other belligerent parties;

— in addition to the above-mentioned provisional measures, to indicate also, pursuant to Article 41 of its Statute and Articles 73 to 75 of its Rules, such other measures as the circumstances may require in order to preserve the lawful rights of the DRC and its people and to prevent the aggravation or extension of the dispute"; [p 227]

14. Whereas, immediately after the filing of the Application and the request for the indication of provisional measures, the Registrar, in accordance with Article 38, paragraph 4, and Article 73, paragraph 2, of the Rules of Court, transmitted certified copies thereof to the Rwandan Government; and whereas the Registrar also informed the United Nations Secretary-General thereof;

15. Whereas by letters dated 28 May 2002, the Registrar informed the Parties that the President had fixed 13 June 2002 as the date for the opening of the oral proceedings provided for in Article 74, paragraph 3, of the Rules of Court, during which they could present their observations on the request for the indication of provisional measures;

16. Whereas, pending the notification under Article 40, paragraph 3, of the Statute and Article 42 of the Rules of Court, by transmittal of the printed text of the Application, in the two official anguages of the Court, to all States entitled to appear before the Court, the Registrar, on 30 May 2002 informed those States of the filing of the Application and of its subject-matter, and of the request for the indication of provisional measures;

17. Whereas, since the Court includes upon the Bench no judge of the nationality of the Parties, each of them proceeded in exercise of the right conferred upon it by Article 31, paragraph 3, of the Statute, to choose a judge ad hoc in the case; for this purpose the Congo chose Mr. Jean-Pierre Mavungu, and Rwanda chose Mr. Christopher John Robert Dugard;

18. Whereas at the public hearings held on 13 and 14 June 2002 oral observations were submitted on the request for the indication of provisional measures:

On behalf of the Congo:

by H.E. Mr. Jacques Masangu-a-Mwanza, Agent,
H.E. Mr. Alphonse Ntumba Luaba Lumu,
Mr. Lwamba Katansi,
Mr. Pierre Akele Adau;

On behalf of Rwanda:

by H.E. Mr. Gerard Gahima, Agent,
Mr. Christopher Greenwood;

**

19. Whereas at the hearings the Congo for the most part reiterated the arguments set out in its Application and its request for the indication of provisional measures; whereas it stated, specifically referring to "massacres" having affected "civilian populations in the city of Kisangani", that the recent acts "constituting serious violations of human rights and international humanitarian law . . . are such that their repetition . . . is . . . likely to aggravate the irreparable harm"; whereas it asserted that, in consequence, [p 228]

"in the light of the two criteria of the urgency of the measures to be decided upon and the irreparable nature of the consequences of the repetition of the criminal acts committed by Rwanda, the jurisdiction of the Court should be established on the basis, in addition to the fundamental provisions of Article 41 of it; Statute, of the rule of 'due diligence' with respect to Rwanda's conduct vis-à-vis its international undertakings";

and whereas it stressed the "pressing necessity for the Court to declare that it has jurisdiction and to indicate provisional measures as a matter of urgency";

20. Whereas at the hearings the Congo observed that the Court's jurisdiction over the merits of the case "cannot be established either on the basis of a special agreement . . ., or on acceptance of the compulsory jurisdiction of the Court", since Rwanda has not made any declaration under Article 36, paragraph 2, of the Statute, but rather "on the basis of the international conventions and treaties to which the Applicant and the Respondent are parties";
21. Whereas at the hearings the Congo maintained that the Court's jurisdiction could be founded on Article IX of the Genocide Convention, to which the Congo and Rwanda are parties; whereas it asserted that Rwandan troops, "either directly or through their intermediaries, have committed and continue to commit acts of genocide covered ... in Articles II and III" of that Convention and that those provisions cover "not only genocide but also conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide"; whereas it stated in this connection that "as a result of the war and the occupation of its territory, the Congolese national group has lost at least 5 per cent of its population" and that "particular ethnic groups have been the object of systematic massacres following their resistance"; whereas it alleged, for purposes of proving "Rwanda's genocidal intent", the "perpetration of dramatic mass killings", the "practice of selective massacres", the "systematic spread of the AIDS virus among the female population", "attacks on the moral resources of the population" and the "infliction of difficult conditions of life"; and whereas, referring to the Order handed down by the Court on 2 June 1999 in the case concerning Legality of Use of Force ( Yugoslavia v. France), in which Article IX of the Genocide Convention was invoked as a basis for the Court's jurisdiction, it stated that the acts of which it accuses Rwanda, "far from being of the kind relied on by Yugoslavia . . ., in the event 'bombings', ... do indeed fall within the definition of genocide";

22. Whereas at the hearings the Congo referred to the reservation wherein Rwanda stated at the time it acceded to the Genocide Convention that it did not consider itself bound by Article IX; whereas the Congo stated that it "objected] to [that] reservation", on the grounds that the Convention contains "norms of jus cogens, in other words, . . .[p 229] peremptory rules under the terms of the 1969 Vienna Convention on the Law of Treaties [which,] as such, . . . apply erga crimes"; whereas it also asserted that the reservation was "incompatible with the object and purpose of the . . . Convention", since its effect was "to exclude Rwanda from any mechanism for the monitoring and prosecution of genocide, whereas the object and purpose of the Convention are the abolition of impunity for this serious violation of international law"; whereas it added, referring to the Court's Advisory Opinion of 28 May 1951 concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, that as far as reservations to the Genocide Convention are concerned, international law has evolved and "has now led to the formulation of Article 120 of the Statute of Rome on the International Criminal Court, which provides: '[n]o reservations may be made to this Statute'", that "that Statute deals in particular with genocide" and that Rwanda's reservation should therefore be considered "inoperative"; and whereas at the hearings the Congo maintained that if the Court were to reject its argument based on "the peremptory nature of the norms of the Genocide Convention", it should nevertheless declare that it has jurisdiction given that Rwanda "called for the creation of an international criminal tribunal to try crimes of genocide" committed against a part of its people, and that it would therefore be "necess[ary] for the Respondent to . . . adopt ... a consistent approach", Rwanda being precluded "[i]n the present case . . . [from] rejecting] the jurisdiction of the International Court of Justice";

23. Whereas at the hearings the Congo contended that the Court's jurisdiction could be founded on Article 29, paragraph 1, of the Convention on Discrimination against Women; whereas it stated that Rwanda had violated its obligations under Article 1 of that Convention; whereas, quoting the preamble to that Convention, it observed that "the state of war and . . . occupation by foreign troops can hardly promote respect for women's rights"; and whereas it referred in this connection to the "terrible suffering endured by women and children [as a result of the presence of] Rwandan troops", to "rapes and various acts of oppression", to "mutilations", to the "spread of AIDS" and to "other forms of violence, including the burial of women alive"; whereas it cited resolution 2002/14, adopted on 19 April 2002, pursuant to which the United Nations Commission on Human Rights deplored "the widespread use of sexual violence against women and children, including as a means of warfare";

24. Whereas at the hearings the Congo argued that the Court's jurisdiction could be founded on Article 22 of the Convention on Racial Discrimination, to which the Congo and Rwanda are parties; whereas it claimed that Rwanda has engaged in acts of racial discrimination as defined in Article 1 of that Convention;

25. Whereas at the hearings the Congo referred to the reservation wherein Rwanda stated at the time it acceded to the Convention on Racial Discrimination that it did not consider itself bound by Article 22; [p 230] whereas the Congo asserted that said reservation was "unacceptable, because it would amount to granting Rwanda the right to commit the acts prohibited by the Convention with complete impunity"; and whereas it concluded that such a reservation cannot but "prevent the attainment of the very purposes and object of the treaty";

26. Whereas at the hearings the Congo maintained that the Court's jurisdiction could be founded on the Convention against Torture; whereas it quoted the definition of torture given in Article 1 of that Convention; whereas it also referred in this connection to the provisions of Article 17 of the first 1949 Geneva Convention and Article 20 of the second; and whereas it contended that "burying people alive", in this case "women, for whom conventional international human rights law and international humanitarian law show particular concern", falls within the provisions of Article 1 of the Convention against Torture;

27. Whereas at the hearings the Congo pointed out that it and Rwanda "have both acceded to the statutes of the United Nations specialized agencies, which do not exclude the judicial settlement of disputes" and contended that the Court's jurisdiction could thus be founded on Article 75 of the WHO Constitution; whereas it stated that

"[f]or the four years during which the war of aggression and occupation of a good part of its territory has continued, the right to physical and mental well-being, guaranteed by Article 1 of the Constitution of the World Health Organization . . ., has been seriously ignored, flouted and encroached upon to the detriment of the Congolese people";

and whereas it stated that the "occupying forces have gone so far as to prevent and impede vaccination campaigns [and, at] Goma, . . . during the volcanic eruption of Mount Nyiragongo, . . . did not allow the Congolese Government to provide humanitarian aid to its stricken population";

28. Whereas at the hearings the Congo argued that the jurisdiction of the Court could be founded on Article 14, paragraph 1, of the Montreal Convention;
29. Whereas at the hearings the Congo referred to Article 9 of the 1947 United Nations Convention on the Privileges and Immunities of the Specialized Agencies, providing for the jurisdiction of the Court; and whereas it quoted the statement of 5 June 2002 in which the President of the Security Council stated that the latter "demand[ed] that RCD-Goma [Rassemblement congolais pour la democratie-Goma] immediately cease its harassment of United Nations officials" and "call[ed] upon Rwanda to exert its influence" to have RCD-Goma meet "all it; obligations"; whereas the Congo asserted that in areas under the control of the RCD-Goma "personnel of the United Nations and its specialized agencies [have been prevented] from the normal enjoyment of their privileges and immunities"; [p 231]

30. Whereas at the hearings the Congo noted that a number of the international conventions which it cited

"allow the parties to a dispute, or one of them, where appropriate, to bring the case before the International Court of Justice, provided the machinery for peaceful settlement laid down by the conventions concerned has first been used and exhausted";

whereas it explained that the machinery in question "is . . . 'negotiation', the 'procedures expressly provided for' in the convention or any 'other mode' of settlement to be agreed between the parties"; whereas it cited in this regard the machinery provided for in the Convention on Racial Discrimination, the Montreal Convention and the Convention against Torture; whereas it maintained that Rwanda opposes "a general modus vivendi which would permit a peaceful settlement"; and whereas it stated as follows:

"if bringing the matter before the International Court of Justice by means of a compromissory clause requires exhaustion of the remedies internal to the Convention, each time the Democratic Republic of the Congo approaches Rwanda with a view to a legal settlement, Rwanda can simply plead that . . . the conditions required by the relevant provisions of these Conventions [are not met] . . . [T]he Court should ask itself how the Democratic Republic of the Congo could first 'exhaust' the negotiation or any other procedures . . ., when Rwanda does not even accept the minimum conditions of peace permitting recourse to the machinery peculiar to those conventions";

31. Whereas at the hearings the Congo, relying on "the most widely accepted scholarly opinion . . . and the settled case law of the Court", claimed "the existence of the international obligation to respect human rights, founded upon a general customary principle, whose effect erga omnes postulates and supposes the collective guarantee of States and of the international community as a whole"; and whereas it cited in this regard Article 55, paragraph (c), of the United Nations Charter;

32. Whereas at the hearings the Congo stated that, "in respect of the injurious consequences of the acts which have been committed", it was confining itself, at the current stage in the proceedings, "to maintaining, in accordance with both the doctrine and unanimous, settled international jurisprudence, that . . . Rwanda is under an obligation to provide full reparation for them";
33. Whereas at the close of its first round of oral argument the Congo presented the following request:

"In the light of the circumstances, the Democratic Republic of the Congo, in order to avert irreparable harm — in reality, the aggravation of irreparable harm — requests the following urgent provisional measures: [p 232]

— the cessation by Rwanda of all violations of the sovereignty, territorial integrity or political independence of the Democratic Republic of the Congo, including all intervention, direct and indirect, in the internal affairs of the Democratic Republic of the Congo;

— the cessation of all use of force, direct or indirect, overt or covert, against the Democratic Republic of the Congo and all threats of use of force against the Democratic Republic of the Congo and its peoples;

— the cessation of the continuing siege of centres of civil population, in particular by ensuring the demilitarization of Kisangani, as demanded by numerous resolutions of the Security Council, and of other towns (Goma, Bukavu, Kindu, Pweto, . . .) invaded by Rwandan forces;

— the cessation of acts which result in the Congolese civil population being deprived of foodstuffs and having difficult and inhuman living conditions inflicted upon them;

— the cessation of the indiscriminate and savage devastation of villages, towns, districts, and religious institutions in the Democratic Republic of the Congo;

— the cessation of murder, summary execution, torture, rape, arbitrary detention and the plundering of the resources of the Democratic Republic of the Congo.

In order to prevent irreparable harm, the Democratic Republic of the Congo asks the Court to adjudge and declare that Rwanda must put an end to the acts constituting grave, flagrant and massive violations, to the detriment of the Congolese people, of the provisions of the normative instruments protecting human rights. Those are the following conventions inter alia: the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Elimination of All Forms of Racial Discrimination, the Constitution of the World Health Organization, the Constitution of Unesco, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

May it please the Court, in order to preserve the lawful interests and the resources of the Democratic Republic of the Congo and its population:

— to demand that its territorial integrity be guaranteed and respected;
— to demand that Rwandan forces forthwith unconditionally vacate Congolese territory in accordance with the Charter and with the relevant resolutions of the United Nations Security Council, in order to enable its population to have full enjoyment of its rights, and to ask the Security Council to ensure respect for its own resolutions; [p 233]

— to enable the Congolese people to enjoy its natural resources in accordance with international law;

— to reaffirm the Democratic Republic of the Congo's right to defend itself and to defend its people, in exercise of its right of self-defence pursuant to Article 51 of the United Nations Charter and to customary international law, or so long as it shall continue to suffer aggression at the hands inter alia of Rwanda, the cost of which in human lives is increasing daily;

— to order an embargo on the delivery of arms to Rwanda, a freeze on all military assistance and other aid and an embargo on gold, diamonds, coltan, and other resources and assets deriving from the systematic plunder and illegal exploitation of the wealth of the Democratic Republic of the Congo lying within its occupied part;

— the rapid installation of a force to separate the combatants and impose peace along the frontiers of the Democratic Republic of the Congo with Rwanda and with the other belligerent parties.

While pointing out that Rwanda must pay to the Democratic Republic of the Congo, in the latter's own right and as parens patriae of its citizens, fair and just reparation on account of the injury to persons, property, the economy and the environment, the Democratic Republic of the Congo requests the Court to indicate also, pursuant to Article 41 of its Statute and Articles 73 to 75 of its Rules, such other measures as the circumstances may require in order to preserve the lawful rights of the Democratic Republic of the Congo and its people and to prevent the aggravation of the dispute";

*

34. Whereas at the hearings Rwanda contended that the Court was being called upon by the Congo "to give what would amount to a final judgment on the merits under the guise of provisional measures", to "impose provisional measures directed to States which are not parties to [the] proceedings, and to international organizations which cannot be party" to them, and "to usurp the authority of other institutions by creating its own international peacekeeping force": and whereas it stated that such measures "manifestly fall outside any jurisdiction which the Court might possess in any case between two States";

35. Whereas at the hearings Rwanda, referring to the criteria that govern the indication of provisional measures, asserted:

"[T]he extent of the jurisdiction which can be founded upon the provisions invoked by an applicant will determine which of the [p 234] rights that the applicant asserts (if any) can be the subject of a decision by the Court and therefore which rights are capable of being protected by means of provisional measures'';

and whereas it contended in this connection that '[n]one of the jurisdictional provisions . . . relied [upon] come anywhere near affording even a prima facie basis for the jurisdiction of the Court as between the Congo and Rwanda" and that in any event "those instruments which might — in other circumstances — offer some element of jurisdiction do not afford a basis for jurisdiction in respect of the rights which the Congo seeks to assert";

36. Whereas at the hearings Rwanda, regarding the Congo's reliance on "rules of jus cogens imposing obligations eiga omnes" (see paragraph 22 above), referred to the Court's jurisprudence and asserted that "the jurisdiction of the Court is based exclusively upon consent" and that an "allegation of a violation of jus cogens does not, and cannot act as a substitute for the consent of the respondent State, so as to create jurisdiction where none would otherwise exist"; whereas it also contended that Article 66 of the Vienna Convention on the Law of Treaties had "absolutely no bearing on this case whatever", did not provide for "any dispute regarding contravention of a rule of jus cogens to be referred to the Court", and conferred jurisdiction on the Court 'only in respect of disputes regarding the validity of a treaty which is said to contravene a rule of jus cogens'"; and whereas it concluded that "there is no such dispute here" and that neither Article 66 of the Vienna Convention nor the norms of jus cogens could supply the basis for jurisdiction in the present case;

37. Whereas at the hearings Rwanda, with reference to the "treaty provisions relied upon by the Congo", asserted that "[e]ach of the treaties in question is of a specialized character", that the

"disputes clauses in those treaties — in so far as they confer jurisdiction at all — do so only in respect of disputes directly related to the subject-matter of each treaty and then only to the extent that the dispute is so related",

and that "[n]one of these treaties is concerned with the main elements of the case which [the] Congo seeks to put before the Court";

38. Whereas at the hearings Rwanda, regarding he Convention against Torture, stated that the said Convention could not, in any way. be a basis for the jurisdiction of the Court, since Rwanda was not a party to it;

39. Whereas at the hearings Rwanda claimed with respect to the Genocide Convention that its reservation regarding Article IX of that [p 235] Convention was "identical" to that made by Spain and "identical in its effect" to that made by the United States; whereas it referred to the Court's consideration of the reservations by these two States in the Orders which it made on 2 June 1999 in the cases concerning Legality of Use of Force ( Yugoslavia v. Spain ) and Legality of Use of Force ( Yugoslavia v. United States of America) ; whereas it pointed out that in these cases the Court had taken the view that Article IX of the Genocide Convention "manifestly does not constitute a basis of jurisdiction . . . even prima facie";

40. Whereas at the hearings, in reply to the argument by the Congo, Rwanda maintained that while the Genocide Convention did indeed state norms of jus cogens, only "the substantive provisions prohibiting genocide . . . have the status of jus cogens, not the jurisdictional clause in Article IX"; whereas it argued that while the prohibition of genocide was also a norm creating obligations erga omnes, "that does not alter the jurisdictional position" ; whereas it pointed out that, contrary to what the Congo had implied at the hearings, the Congo had "said nothing whatever about the Rwandese reservation"; whereas it added that the Advisory Opinion of the Court concerning Reservations to the Genocide Convention in no way suggested that Rwanda could not rely in the present case on its reservation; and whereas it rejected tie Congo's argument to the effect that Rwanda, by asking the Security Council to create the International Criminal Tribunal for Rwanda, had "waived, or become estopped from any reliance upon its reservation to the Genocide Convention", giving the following explanation:

"The criminal jurisdiction of a tribunal created by the Security Council and deriving its authority from an exercise of the Council's powers under Chapter VII of the Charter to try individuals for the crime of genocide has nothing whatever to co with the authority of the Court to exercise jurisdiction in inter-State disputes, which can be derived only from Article IX: and Article IX, subject as the Court itself has said, to reservations";

41. Whereas at the hearings Rwanda, in respect of the Convention on Racial Discrimination, stated that it had acceded to the Convention in 1975, coupling the accession with a "reservation which excluded Article 22 in its entirety"; whereas it noted that at the hearings the Congo "may [have] objected] ... to that reservation made by Rwanda, but it certainly did not object in 1975"; and whereas it contended that the Convention on Racial Discrimination could not found the jurisdiction of the Court;

42. Whereas at the hearings Rwanda, on the subject of the Unesco Constitution, noted that Article XIV, paragraph 2, relied on by the Congo, referred "only to disputes concerning the interpretation, not the [p 236] application" of that Constitution; whereas it pointed out that the Congo had "not given the merest hint to the Court of any dispute about the interpretation of provisions of the . . . Constitution"; whereas it stated that Article XIV provided for reference of a dispute to the Court only "as the General Conference may determine under it; Rules of Procedure"; whereas it contended that there was "no question of the procedures laid down in [those] Rules having been followed in this case"; and whereas it concluded: "Article XIV (2) of the Constitution affords no other basis for the jurisdiction of the Court and cannot, therefore, furnish a basis — even prima facie — for the jurisdiction of the Court in the present case";

43. Whereas at the hearings Rwanda, with reference to the Convention on Discrimination against Women, pointed out that Article 29, paragraph 1, of that Convention very clearly laid down a number of preconditions which must be satisfied before the jurisdiction of the Court could be "founded, even on a prima facie basis"; whereas it explained in this connection that there must be "a dispute concerning the interpretation or application of the Convention", that it must "have proved impossible to settle that dispute by negotiation", there must "have been a request for arbitration" and it must "have proved impossible to organize an arbitration within a period of six months"; whereas it stated that Article 29, paragraph 1, did not make the Court "the primary forum for the resolution of the disputes to which it applies", but assigned to the Court the "role . . . [of] guarantor in the event that the provisions for negotiation and arbitration fail, that is to say if the parties to the dispute are unable to resolve their differences by negotiation and cannot agree on the organi2tation of the arbitration":

44. Whereas at the hearings Rwanda contended that none of the preconditions for seising the Court under Article 29, paragraph 1, of the Convention on Discrimination against Women hi d been "satisfied in the present case"; whereas it maintained in this regard that the Congo had made "no claim . . . prior to the filing of the Application" nor had it suggested "that there was a dispute regarding the interpretation of any provision of this Convention", that there had been "no attempt whatever to settle [the] dispute by negotiation" and furthermore that the Congo had not "proposed or attempted to negotiate the organization of an arbitration"; and whereas in reply to the Congo's argument that the absence of normal diplomatic and consular relations meant that any proposal for negotiation or arbitration would have been futile, Rwanda stated that while it was true that diplomatic relations had been "suspended", "there [have been] regular and frequent meetings between representatives of the two countries at all levels — ministerial, official, even Head of State — as part of the Lusaka peace process"; whereas it alleged that during these meetings the Congo has not raised "any dispute regarding the interpretation or application of the Convention" with Rwandan representatives; whereas it contended that furthermore the Congo had not made any pro-posal for arbitration under this Convention; and whereas it noted on the [p 237] latter point that the present case could therefore be distinguished from the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), in which Libya had written to the Government of the United Slates proposing arbitration under a provision very similar to that in tie Convention on Discrimination against Women, and where the Court, in the absence of an answer from the United States, had "rejected the argument [by the latter] that the conditions for seising the Court had not been met";

45. Whereas at the hearings Rwanda contended with regard to the Montreal Convention that Article 14, paragraph 1, of that Convention stated "the same preconditions for the jurisdiction of the Court as those in the Convention [on Discrimination against Women]" and that the Congo had made "no attempt to satisfy those conditions although ... it has had quite enough opportunity to do so"; and whereas Rwanda maintained that the Congo had already invoked the Montreal Convention, on the ground of the "shooting down of a civil aircraft in October 1998", in the proceedings that it instituted in 1999 against Rwanda, that in that case the Congo had not replied to the arguments made by Rwanda in its Memorial and that the Congo, after obtaining an extension of the time-limit for filing its Counter-Memorial, had "let nine months go by" before abandoning its action in January 2000; whereas it argued that for the Congo to re-submit the same request to the Court was "the clearest case of an abuse of process";

46. Whereas at the hearings Rwanda, in respect of the WHO Constitution, referred to Article 75 of that Constitution, relied upon by the Congo to found the jurisdiction of the Court; whereas it asserted that there was no dispute between the two States "concerning the interpretation or application" of the WHO Constitution and that the Congo had not identified the provisions of the Constitution which it considered to be at issue; and whereas it added that the Congo had not made any effort first to satisfy the "procedural condition [under Article 75] for seising the Court", namely that it should "first seek to resolve the dispute by negotiation or by the processes of the Health Assembly";

47. Whereas at the hearings, on the subject of the 1947 United Nations Convention on the Privileges and Immunities of the Specialized Agencies, Rwanda, after stating that this Convention had been "mentioned th[at] morning ... for the first time", and referring to the Court's jurisprudence, contended that it was "too late for a Stat; to invoke an entirely fresh ground of jurisdiction as the basis on which it seeks to seise the Court in a request for provisional measures"; whereas it argued that the Congo had failed "to identify any dispute whatever between [it] and Rwanda about [this] Convention"; whereas it stated: "There may per-[p 238] haps be a dispute . . . between the United Nations and the RCD-Goma, the rebel faction within the Congo, about the treatment of personnel in the MONUC United Nations force. But that is not a dispute which involves either of the two Parties here before [the Court]"; and whereas it submitted on this point that the Convention in question "forms no basis for the jurisdiction of the Court";

48. Whereas at the hearings Rwanda, referring to the Court's jurisprudence, further contended that the Court could grant provisional measures "only for the purpose of preserving rights which might form the subject-matter of a decision of the Court on the merits" and that it could not order measures other than "those needed to protect rights which might form the subject-matter of a judgment under the treaty or treaties which the Court determines afford a prima facie basis for its jurisdiction"; whereas it argued with regard to the Montreal Convention, the Convention on Discrimination against Women and the WHO Constitution that, even if the conditions precedent to such jurisdiction prescribed by these instruments had been met, in any event the provisional measures sought by the Congo could not be indicated because they fell well outside the subject-matter of those instruments; whereas it pointed out in the case of the Montreal Convention that the latter was "concerned with crimes against the safety of civil aviation", that the only bearing claimed concerned an incident four years earlier and that the rights conferred upon the Congo by the Convention had "no point of contact with the relief which Congo is seeking"; whereas it added with regard to the Convention on Discrimination against Women that the

"rights which Congo claims lie at the heart of the present case — respect for sovereignty, territorial integrity, independence, inalienable rights in respect of natural resources — could [not] possibly be said to constitute rights which might form the subject of a decision in exercise of any jurisdiction conferred by Article 29 of this Convention";

and whereas it asserted, in the case of the WHO Constitution, that the lack of any connection between that Constitution and the present case was "stark", referring in this respect to the Advisory Opinion on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, in which "the Court . . . drew a sharp distinction between the health effects of warfare and the legality of the waging of war";

49. Whereas at the hearings Rwanda submitter that none of the jurisdictional grounds advanced by the Congo "offers any prospect whatever of jurisdiction on the merits" and that "that would be reason enough for the Court to remove the case from its List"; and whereas Rwanda added specifically that the Congo had already had the "opportunity of having the issue of jurisdiction tried" in the first proceedings which it had instituted, but had preferred to withdraw; whereas it stated that the Congo's [p 239] new Application was merely "a replica of its old Application"; and whereas it asserted that this was "an abuse of the process of the Court and that the Court should . . . remove the case from its List";

50. Whereas at the hearings Rwanda presented the following submissions: "that the request for provisional measures be dismissed, and that the case be removed from the Court's List forthwith";

51. Whereas in its oral reply the Congo stated that "contrary to Rwanda's allegations, the headquarters agreement between the [Congolese] Government and MONUC was invoked not in support of the argument on the jurisdiction of the Court", but to indicate that "[MONUC] officials enjoy diplomatic privileges and immunities"; whereas it contended, in reply to Rwanda's argument that the Congo had "never made recourse to internal arbitration procedures", that it had "sought to bring Rwanda to arbitration on a number of occasions ' and that

"there have been many such opportunities "or having recourse to arbitration or any other procedure laid down by the conventions concerned:

— in July 2001 at Lusaka, on the occasion of the 37th Conference of Heads of State of the Organization of African Unity and in the presence of the United Nations Secretary-General himself, the President of the Rwandese Republic rejected any proposal for the settlement of certain specific armed conflicts by arbitration;

— in September 2001, at Durban, in the Republic of South Africa, and on the occasion of the World Conference on Racism, President Joseph Kabila of the Democratic Republic of the Congo made the same proposal for a settlement by arbitration to his Rwandan counterpart, who declined the offer;

— in January 2002, at the Blantyre Summit in Malawi, in the presence of the President of the Republic, Bakili Muluzi, the Congolese President reiterated his offer to his Rwandese counterpart, who turned it down;

— in March 2002, lastly, and on the occasion of the meeting of the Joint Political Committee of the Lusaka Agreement and of the Security Council Mission, the President of the Rwandese Republic immediately slammed the door on the proposals for a settlement by arbitration as soon as they were made to him";

52. Whereas at the close of its oral reply the Congo presented the following request:

"In the light of the facts and arguments set out during these oral proceedings, the Government of the Democratic Republic of the Congo asks the Court to adjudge and declare such that the Congolese people can enjoy its natural resources in accordance with inter-[p 240]national law: to reaffirm the Democratic Republic of the Congo's rights to defend itself and to defend its people in exercise of its right of self-defence pursuant to Article 51 of the United Nations Charter and to customary international law, for so long as it shall continue to suffer aggression at the hands inter alia of Rwanda, the cost of which in human lives is increasing daily; to order an embargo on the delivery of [arms] to Rwanda, a freeze on all military assistance and other aid, an embargo on gold, diamonds, coltan, and other resources and assets deriving from the systematic plunder and illegal exploitation of the wealth of the Democratic Republic of the Congo lying within its occupied part (because Rwanda has now become an exporter of diamonds and coltan, even though these do not exist under its soil); the rapid installation of a force to separate the combatants and impose peace along the frontiers of the Democratic Republic of the Congo with Rwanda and with the other belligerent parties. Above all, we insist that Rwanda vacate Kisangani so that its demilitarization can take effect and the MONUC forces can occupy the city — thus, the population will live in peace —, while pointing out that Rwanda must pay to the Democratic Republic of the Congo, in the latter's own right and as parens patriae of its citi-zens, fair and just reparation on account of the injury to persons, property, the economy and the environment.

The Democratic Republic of the Congo requests the Court to indicate also, pursuant to Article 41 of its Statute and Articles 73 to 75 of its Rules, such other measures as the circumstances may require in order to preserve the lawful rights of the Democratic Republic of the Congo and its people and to prevent the aggravation of the dispute";

53. Whereas in its oral reply Rwanda requested the Court to take note that the Congo was not invoking the United Nations Convention on Privileges and Immunities and the headquarters agreement between the United Nations and the Congo to found the jurisdiction of the Court; and whereas at the close of its reply it made the following requests of the Court:

"first, . . . the request of the Democratic Republic of the Congo for the indication of provisional measures should be denied; and secondly, ... in view of the fact that the current proceedings are really an abuse of the process of court, we pray this Court to exercise its discretion and strike this case from its List";

***

54. Whereas the Court is deeply concerned by the deplorable human tragedy, loss of life, and enormous suffering in the east of the Democratic Republic of the Congo resulting from the continued fighting there; [p 241]

55. Whereas the Court is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and the Statute of the Court;

56. Whereas the Court finds it necessary to emphasize that all parties to proceedings before it must act in conformity with their obligations pursuant to the United Nations Charter and other rules of international law, including humanitarian law; whereas the Court cannot in the present case over-emphasize the obligation borne by the Congo and Rwanda to respect the provisions of the Geneva Convention; of 12 August 1949 and of the first Protocol additional to those Conventions, of 8 June 1977, relating to the protection of victims of international armed conflicts, to which instruments both of them are parties;

***

57. Whereas the Court, under its Statute, does not automatically have jurisdiction over legal disputes between States parties to that Statute or between other States entitled to appear before the Court; whereas the Court has repeatedly stated that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction; and whereas the Court therefore has jurisdiction only between States parties to c dispute who not only have access to the Court but also have acceptée the jurisdiction of the Court, either in general form or for the individual dispute concerned {Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, I.C.J. Reports 1999 (I), p. 132, para. 20);

58. Whereas on a request for provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, yet :t ought not to indicate such measures unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established; whereas moreover, once the Court has established the existence of such a basis for jurisdiction, it should not however indicate measures for the protection of any disputed rights other than those which might ultimately form the basis of a judgment in the exercise of that jurisdiction {Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 35);

**

59. Whereas in accordance with Article 36, paragraph 2, of the Statute, the Congo (then Zaire), by means of a declaration dated 8 February 1989, recognized the compulsory jurisdiction of the Court in relation to [p 242] any State accepting the same obligation; whereas Rwanda on the other hand has not made such a declaration; whereas the Court accordingly will consider its prima facie jurisdiction solely on the basis of the treaties and conventions relied upon by the Applicant pursuant to Article 36, paragraph 1, of the Statute, providing: "The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nation:; or in treaties and conventions in force";

*
60. Whereas the Congo claims violations by Rwanda of the Convention against Torture, Article 1 of which reads as follows:

"For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . . .";

and whereas it seeks to found the jurisdiction of the Court on the provisions of Article 30, paragraph 1, of the Convention, pursuant to which:

"Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court";

whereas the Congo has been a party to that Convention since 18 March 1996;

61. Whereas Rwanda stated that it is not, and has never been, party to the 1984 Convention against Torture; and whereas the Court finds that such is indeed the case;

*

62. Whereas the Congo, after referring to the 1947 United Nations Convention on the Privileges and Immunities of the Specialized Agencies, [p 243] invoked "the headquarters agreement between the Government of the Democratic Republic of the Congo and MONUC" of 4 May 2000; whereas, in its argument as finally stated in the present phase of the case, it does not appear to claim to found the jurisdiction of the Court on the former of those two instruments; and whereas, in respect of the latter, the Congo stated in its oral reply that:

"the headquarters agreement . . . was invoked not in support of the argument on the jurisdiction of the Court, but rather to indicate that the Rwandan armed forces are not authorized to attack MONUC officials . . .; those officials enjoy diplomatic privileges and immunities";

whereas accordingly the Court is not required to take those instruments into consideration in the present context;

*

63. Whereas the Congo seeks to found the jurisdiction of the Court on the compromissory clauses contained in the following instruments, to which both it and Rwanda are parties: the Convention on Racial Discrimination, the Genocide Convention, the Vienna Convention on the Law of Treaties, the Convention on Discrimination against Women, the WHO Constitution, the Unesco Constitution and the Montreal Convention; and whereas the Court must now proceed to examine each of those conventions to determine whether the jurisdictional clauses relied upon can furnish a prima facie basis for jurisdiction on the merits such as would allow it, should it think that the circumstances so warranted, to indicate provisional measures;

*
64. Whereas the Congo first seeks to found the jurisdiction of the Court on Article 22 of the Convention on Racial Discrimination, which states:

"Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement";

and whereas the Congo maintains that Rwanda has committed numerous acts of racial discrimination within the meaning o" Article 1 of that Convention, which provides inter alia:

"the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or [p 244] national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life";

65. Whereas both the Congo and Rwanda are parties to the Convention on Racial Discrimination; whereas the Congo acceded to that Convention on 21 April 1976 and Rwanda on 16 April 1975; whereas however Rwanda's instrument of accession to the Convention, deposited with the United Nations Secretary-General, includes a reservation reading as follows: "The Rwandese Republic does not consider itself as bound by article 22 of the Convention";

66. Whereas in the present proceedings the Congo has challenged the validity of that reservation (see paragraph 25 above);

67. Whereas the Convention on Racial Discrimination prohibits reservations incompatible with its object and purpose; whereas under Article 20, paragraph 2, of the Convention, "[a] reservation shall be considered incompatible ... if at least two-thirds of the States Parties to this Convention object to it"; whereas such has not been the case in respect of Rwanda's reservation concerning he jurisdiction of the Court; whereas that reservation does not appear incompatible with the object and purpose of the Convention; whereas the Congo did not object to that reservation when it acceded to the Convention; and whereas Rwanda's reservation is prima facie applicable;

*

68. Whereas the Congo also claims to found the jurisdiction of the Court on Article IX of the Genocide Convention worded as follows:

"Disputes between the Contracting Parties "elating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State or genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute";
and whereas the Congo maintains that Rwanda has violated Articles II and III of the Genocide Convention; whereas Article II prohibits the carrying out of:

"any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental ham to members of the group; [p 245]

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group";

and whereas Article III provides:

"The following acts shall be punishable:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide";

69. Whereas both the Congo and Rwanda are parties to the Genocide Convention; whereas the Congo acceded to that Convention on 31 May 1962 and Rwanda on 16 April 1975; whereas however Rwanda's instrument of accession to the Convention, deposited with the United Nations Secretary-General, includes a reservation worded as follows: "The Rwan-dese Republic does not consider itself as bound by article IX of the Convention";

70. Whereas in the present proceedings the Congo has challenged the validity of that reservation (see paragraph 22 above);

71. Whereas "the principles underlying the [Genocide] Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation" and whereas a consequence of the conception thus adopted is "the universal character both of the condemnation of genocide and of the co-operation required “in order to liberate mankind from such an odious scourge (Preamble to the Convention)” (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J Reports 1951, p. 23); whereas it follows "that the rights and obligations enshrined by the Convention are rights and obligations erga omnes" (Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 616, para. 31); whereas however, as the Court has already had occasion to point out, "the erga omnes character of a norm and the rule of consent to jurisdiction are two different things" (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29); whereas it does not follow from the mere fact that rights and obligations erga omnes are at issue in a dispute that the Court has jurisdiction to adjudicate upon that dispute; whereas, as the Court has noted above (paragraph 57), it has jurisdiction in respect of States only to the extent that they have consented thereto; and whereas, when a compromissory clause in a treaty provides for the Court's jurisdiction, that jurisdiction exists only in respect of the parties to the treaty who are bound by that clause and within the limits set out in that clause;

72. Whereas the Genocide Convention does not prohibit reservations; [p 246] whereas the Congo did not object to Rwanda's reservation when it was made; whereas that reservation does not bear on the substance of the law, but only on the Court's jurisdiction; whereas it therefore does not appear contrary to the object and purpose of the Convention; whereas it is immaterial that different solutions have been adopted for courts of a different character; whereas, specifically, it is immaterial that the International Criminal Tribunal for crimes committed in Rwanda was estab-lished at Rwanda's request by a mandatory decision of the Security Council or that Article 120 of the Statute of the International Criminal Court signed at Rome on 17 July 1998 prohibits all reservations to that Statute;
*

73. Whereas the Congo further seeks to found the jurisdiction of the Court directly on Article 66, paragraph (a,), of the 1969 Vienna Convention on the Law of Treaties, in accordance with which "[a]ny one of the parties to a dispute concerning the application or the interpretation of article 53 or 64", relating to conflicts between treaties and peremptory norms of international law, "may, by a written application, submit it to the International Court of Justice for a decision unless the parties by common consent agree to submit the dispute to arbitration" (see paragraph 3 above);

74. Whereas Article 66 of the Vienna Convention on the Law of Treaties must be read in conjunction with Article 65, entitled "Procedure to be followed with respect to invalidity, termination, withdrawal from or suspension of the operation of a treaty";

75. Whereas the Congo does not maintain at the present time that there is a dispute, which could not be resolved under the procedure prescribed in Article 65 of the Vienna Convention, between it and Rwanda concerning a conflict between a treaty and a peremptory norm of international law; whereas the object of Article 66 cited above is not to allow for the substitution of the judicial settlement, arbitration and conciliation procedures under the Vienna Convention on the Law of Treaties for the settlement machinery for disputes relating to the interpretation or application of specific treaties, notably when a violation of those treaties has been alleged;

*

76. Whereas the Congo further claims to found the jurisdiction of the Court on Article 29 of the Convention on Discrimination against Women, providing:

"Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the [p 247] request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice b) request in conformity with the Statute of the Court";

and whereas the Congo maintains (see paragraph 23 above) that Rwanda has violated its obligations under Article 1, which reads as follows:

"For the purposes of the present Convent on, the term 'discrimination against women' shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field";

77. Whereas both the Congo and Rwanda are parties to the Convention on Discrimination against Women; whereas Rwanda ratified that Convention on 2 March 1981; and whereas the Congo did so on 17 October 1986;

78. Whereas it falls to the Court to consider whether the preconditions on the seisin of the International Court of Justice aid out in Article 29 of the Convention in question have been satisfied;

79. Whereas at this stage in the proceedings the Congo has not shown that its attempts to enter into negotiations or undertake arbitration proceedings with Rwanda (see paragraph 51 above) concerned the application of Article 29 of the Convention on Discrimination against Women; whereas nor has the Congo specified which rights protected by that Convention have allegedly been violated by Rwanda and should be the object of provisional measures; whereas the preconditions on the seisin of the Court set by Article 29 of the Convention therefore do not appear prima facie to have been satisfied;

*

80. Whereas the Congo seeks moreover to found the jurisdiction of the Court on Article 75 of the WHO Constitution, worded as follows:

"Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement";

and whereas the Congo alleges that Rwanda has infringed the rights guaranteed to its population by Article 1 of that Constitution (see paragraph 27 above); [p 248]

81. Whereas the Congo has been a party to the WHO Constitution since 24 February 1961 and Rwanda since 7 November 1962 and both are thus members of that Organization;

82. Whereas at this stage in the proceedings the Congo has also not shown that the preconditions on the seisin of the Court set by Article 75 of the WHO Constitution have been satisfied; whereas moreover an initial examination of that Constitution shows that Article 2 thereof, relied on by the Congo, places obligations on the Organization, not on the Member States;

*
83. Whereas the Congo further claims to found the jurisdiction of the Court on Article XIV, paragraph 2, of the Unesco Constitution, pursuant to which:

"Any question or dispute concerning the interpretation of this Constitution shall be referred for determination to the International Court of Justice or to an arbitral tribunal, as the General Conference may determine under its rules of procedure";

whereas in its Application the Congo invokes Article I of the Constitution and maintains that "[ojwing to the war, the Democratic Republic of the Congo today is unable to fulfil its missions within Unesco . . .";

84. Whereas both the Congo and Rwanda are parties to the Unesco Constitution and have been since 25 November 1960 in the case of the Congo and 7 November 1962 in the case of Rwanda;

85. Whereas Article XIV, paragraph 2, provides for the referral, under the conditions established in that provision, of disputes concerning the Unesco Constitution only in respect of the interpretation of that Constitution; whereas that does not appear to be the object of the Congo's Application; and whereas the Application does not therefore appear to fall within the scope of that article;

*

86. Whereas the Congo lastly seeks to found the jurisdiction of the Court on Article 14, paragraph 1, of the Montreal Convention, which reads as follows:

"Any dispute between two or more Contracting States concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court"; [p 249]

and whereas at the close of its Application the Congo made the following submission inter alia:
"by shooting down a Boeing 727 owned by Congo Airlines on 9 October 1998 in Kindu, thereby causing the death of 40 civilians, Rwanda . . . violated . . . the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971";

87. Whereas both the Congo and Rwanda are parties to the Montreal Convention and have been since 6 July 1977 in the case of the Congo and 3 November 1987 in the case of Rwanda;

88. Whereas the Congo has not however asked the Court to indicate any provisional measure relating to the preservation of rights which it believes it holds under the Montreal Convention; whereas accordingly the Court is not required, at this stage in the proceedings, to rule, even on a prima facie basis, on its jurisdiction under that Convention nor on the conditions precedent to the Court's jurisdiction contained therein;

*
89. Whereas it follows from the preceding considerations taken together that the Court does not in the present case have the prima facie jurisdiction necessary to indicate those provisional measures requested by the Congo;

90. Whereas, however, the findings reached by the Court in the present proceedings in no way prejudge the question of the jurisdiction of the Court to deal with the merits of the case or any questions relating to the admissibility of the Application, or relating to the merits themselves; and whereas they leave unaffected the right of the Governments of the Congo and of Rwanda to submit their arguments in respect of those questions;

91. Whereas in the absence of a manifest lack of jurisdiction, the Court cannot grant Rwanda's request that the case be removed from the List;

**

92. Whereas there is a fundamental distinction between the question of the acceptance by a State of the Court's jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties;

93. Whereas, whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law; whereas in particular they are required to fulfil their obligations under the United Nations Charter; whereas the [p 250] Court cannot but note in this respect that the Security Council has adopted a great number of resolutions concerning the situation in the region, in particular resolutions 1234 (1999), 1291 (2000), 1304 (2000), 1316 (2000), 1323 (2000), 1332 (2000), 1341 (2001), 1355 (2001), 1376 (2001), 1399 (2002) and 1417 (2002); whereas the Security Council has demanded on many occasions that "all the parties to the conflict put an . . . end to violations of human rights and international humanitarian law"; and whereas it has inter alia reminded "all parties of their obligations with respect to the security of civilian populations under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949", and added that "all forces present on the territory of the Democratic Republic of the Congo are responsible for preventing violations of international humanitarian law in the territory under their control"; whereas the Court wishes to stress the necessity for the Parties to these proceedings to use their influence to prevent the repeated grave violations of human rights and international humanitarian law which have been observed even recently;

***

94. For these reasons,

THE COURT,

(1) By fourteen votes to two,

Rejects the request for the indication of provisional measures submitted by the Democratic Republic of the Congo on 28 May 2002;

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal; Judge ad hoc Dugard;

AGAINST: Judge Elaraby; Judge ad hoc Mavungu;

(2) By fifteen votes to one,

Rejects the submissions by the Rwandese Republic seeking the removal of the case from the Court's List.

IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal. Elaraby; Judge ad hoc Mavungu;

AGAINST: Judge ad hoc Dugard.

Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this tenth day of July, two thousand and two, in three copies, one of which will be placed in the archives of the [p 251] Court and the others transmitted to the Government of the Democratic Republic of the Congo and the Government of the Rwandese Republic, respectively.

(Signed) Gilbert Guillaume,
President.

(Signed) Philippe Couvreur,
Registrar.
Judges Koroma, Higgins, Buergenthal and Elaraby append declarations to the Order of the Court; Judges ad hoc Dugard and Mavungu append separate opinions to the Order of the Court.

(Initialled) G.G.
(Initialled) Ph.C. [p 252]


DECLARATION OF JUDGE KOROMA

1. I have voted in favour of the Order because, in my view, it has attempted to address some of the concerns at the heart of the request.

2. In its request for the indication of provisional measures and during the public hearings, the Congo invoked various legal instruments, including inter alia the United Nations Charter, the Charter of the Organization of African Unity, the International Bill of Human Rights, the Geno-cide Convention (1948), the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and the first Protocol additional to the Conventions, of 8 June 1977, relating to the Protection of Victims of International Armed Conflicts, and the Con-vention on the Elimination of All Forms of Discrimination against Women of 18 December 1979, and alleged: the occupation of a "significant part of the eastern [territory]" involving "large-scale massacres", "rape and sexual assault of women", "murders and abductions of political figures and human rights activists", "arrests, arbitrary detentions, inhuman and degrading treatment", systematic looting of public and private institutions and theft of property of the civilian population; genocide against more than 3,500,000 Congolese, including the victims of recent massacres in the city of Kisangani; and the violation of the sacred right to life provided for in the Universal Declaration of Human Rights.

3. In support of its request, the Congo noted the

"continuing grave, flagrant, large-scale acts of torture, cruel, inhuman or degrading punishment or treatment, genocide, massacre, war crimes and crimes against humanity, discrimination, violation of the rights of women and children . . .".

4. The Congo further justifies its request for interim measures of protection on the ground that,

"[i]n addition to the numerous heinous crimes perpetrated by Rwanda as set out in the Application instituting proceedings . . . [that] the massacres (begun in August 1998) have continued since January 2002 up to the present time, despite numerous resolutions of the Security Council of the United Nations and of its Commission on Human Rights".

5. It was also the Congo's contention that "to fail to make an immediate order for the measures sought would have humanitarian consequences which could never be made good again ... in the short term or in the long term". [p 253]

6. During the hearings, the Congo further observed that "the state of war and . . . occupation by foreign troops can hardly promote respect for women's rights" and it referred in this connection to the terrible suffering endured by women and children as a result of the presence of Rwandan troops, to "rapes and various acts of oppression", to "mutilations", and to "other forms of violence, including the burial of women alive", in violation of the Convention on the Elimination of All Forms of Discrimination against Women, citing resolution 2002/14, adopted on 19 April 2002, pursuant to which the United Nations Commission on Human Rights deplored "the widespread use of sexual violence against women and children, including as a means of warfare".

7. It is against the background of the aforesaid allegations that the Congo requested the Court to adjudge and declare that Rwanda must put an end to the acts constituting grave, flagrant and massive violations to the detriment of the Congolese people.

8. Rwanda, for its part, contended that the Court was being called upon by the Congo "to give what would amount to a final judgment on the merits under the guise of provisional measures", to "impose provisional measures directed to States which are not parties to [the] proceedings, and to international organizations which cannot be party" to them, and "to usurp the authority of other institutions by creating its own international peacekeeping force"; it further stated that such measures "manifestly fall outside any jurisdiction which the Court might possess in any case between two States".

9. Referring to the criteria that govern the indication of provisional measures, Rwanda asserted that

"the extent of the jurisdiction which can be founded upon the provisions invoked by an applicant will determine which of the rights that the applicant asserts (if any) can be the subject of a decision by the Court and therefore which rights are capable of being protected by means of provisional measures".

In this connection it contended that "[n]one of the jurisdictional provisions . . . relied [upon] come anywhere near affording even a prima facie basis for the jurisdiction of the Court as between the Congo and Rwanda" and that in any event "those instruments which might — in other circumstances — offer some element of jurisdiction do not afford a basis for jurisdiction in respect of the rights which the Congo seeks to assert".

10. It is apparent from the information submitted to the Court that real, serious threats do exist to the population of the region concerned, including the threat to life.

11. According to Article 41 of its Statute, the Court is empowered to indicate protective measures: "if it considers that circumstances so require . . . which ought to be taken to preserve the respective rights of either party". The Court has set out certain criteria to be satisfied before [p 254] granting such a request. Among these are that there must be prima facie or potential jurisdiction, urgency, and the risk of irreparable harm if an order is not granted. But these criteria, in my view, have to be considered in the context of Article 41, which authorizes the Court to "indicate", if it considers that the circumstances so require, any provisional measure which ought to be taken to preserve the respective rights of either party, and of the Court's role in maintaining international peace and security, including human security and the right to life.

12. Although the Court has been unable to grant the request for want of prima facie jurisdiction, it has, in paragraphs 54, 55, 56 and 93 of the Order, rightly and judiciously, in my view, expressed its deep concern over the deplorable human tragedy, loss of life and enormous suffering in the east of the Democratic Republic of the Congo resulting from the fighting there. The Court has also rightly emphasized that all parties to the proceedings before it must act in conformity with their obligations pursuant to the United Nations Charter and the rules of international law, including humanitarian law and further emphasized the obligation borne by the Congo and Rwanda to respect the provisions of the Geneva Conventions of 12 August 1949 and of the first Protocol additional to those Conventions, of 8 June 1977, relating to the protection of victims of international armed conflicts, to which instruments both of them are parties.

13. It was also appropriate for the Court to emphasize in the context of this case, as it has done in paragraph 93 of the Order, that whether or not States accept the jurisdiction of the Court, they remain, in any event, responsible for acts attributable to them that violate international law and that they are required to fulfil their obligations under the United Nations Charter and in respect of the relevant Security Council resolutions, which have demanded that "all parties to the conflict" put an end to violations of human rights and international humanitarian law, reminded "all parties of their obligations with respect to the security of civilian populations under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949", and added that "all forces present on the territory of the Democratic Republic of the Congo are responsible for preventing violations of international humanitarian law in the territory under their control".

14. Finally, the Court has stressed the necessity for the Parties to these proceedings to use their influence to prevent the repeated grave violations of human rights and international humanitarian law which have been observed even recently.

15. According to the jurisprudence of the Court, a provisional measure may take the form of an exhortation to "ensure that no step [p 255] of any kind is taken capable of prejudicing the rights claimed ... or of aggravating or extending the dispute submitted to the Court" (Electricity Company of Sofia and Bulgaria, Order of 5 December 1939, P.C.I.J., Series AIB, No. 79, p. 199); or it may be granted where it has been shown that there is a risk of irreparable harm or injury which is not illusory or insignificant; or it may consist of a protective measure ordered by the Court encouraging the parties to reach an agreement to preserve the status quo until the merits of the claim are finally adjudged, or it may urge the parties to a dispute not to resort to force and to settle their dispute peacefully on the basis of the law.

16. In my view, if ever a dispute warranted the indication of interim measures of protection, this is it. But while it was not possible for the Court to grant the request owing to certain missing elements, the Court has, in accordance with its obiter dicta in the cited paragraphs, nevertheless discharged its responsibilities in maintaining international peace and security and preventing the aggravation of the dispute. The position taken by the Court can only be viewed as constructive, without however prejudging the merits of the case. It is a judicial position and it is in the interest of all concerned to hearken to the call of the Court.

(Signed) Abdul G. Koroma. [p 256]


DECLARATION OF JUDGE HIGGINS

I do not agree with one of the limbs relied on by the Court in paragraph 79 of its Order.

It is well established in international human rights case law that it is not necessary, for the purpose of establishing jurisdiction over the merits, for an applicant to identify which specific provisions of the treaty said to found jurisdiction are alleged to be breached. See, for example, the findings of the Human Rights Committee on Stephens v. Jamaica (United Nations, Official Records of the General Assembly, Fifty-First Session, Supplement No. 40 (A/51/40)); B.d.B. et al. v. The Netherlands (ibid., Forty-Fourth Session, Supplement No. 40 (A/45/40)); and many other cases. A fortiori is there no reason for the International Court of Justice, in establishing whether it has prima facie jurisdiction for purposes of the indication of provisional measures, to suggest a more stringent test. It should rather be for the Court itself, in accordance with the usual practice, to see whether the claims made by the Congo and the facts alleged could prima facie constitute violations of any particular clause in the Convention on the Elimination of All Forms of Discrimination against Women, the instrument relied on by the Congo as providing the Court with jurisdiction over the merits.

However, as I agree with the other elements in paragraph 79, and with the legal consequence that flows from them, I have voted in favour of the Order.

(Signed) Rosalyn Higgins. [p 257]


DECLARATION OF JUDGE BUERGENTHAL

1. I agree with the Court's decision rejecting the Democratic Republic of the Congo's request for provisional measures as well as the decision not to remove the case from the Court's List.

2. My purpose in appending this declaration to the instant Order is to express my disagreement with the inclusion in the Court's Order of the language found in paragraphs 54-56 and 93. My objection to these paragraphs is not to the high-minded propositions they express. Instead, I consider that they deal with matters the Court has no jurisdiction to address once it has ruled that it lacks prima facie jurisdiction to issue the requested provisional measures.

3. These paragraphs read as follows:

"54. Whereas the Court is deeply concerned by the deplorable human tragedy, loss of life, and enormous suffering in the east of the Democratic Republic of the Congo resulting from the continued fighting there;

55. Whereas the Court is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter and the Statute of the Court;

56. Whereas the Court finds it necessary to emphasize that all parties to proceedings before it must act in conformity with their obligations pursuant to the United Nations Charter and other rules of international law, including humanitarian law; whereas the Court cannot in the present case over-emphasize the obligation borne by the Congo and Rwanda to respect the provisions of the Geneva Conventions of 12 August 1949 and of the first Protocol additional to those Conventions, of 8 June 1977, relating to the protection of victims of international armed conflicts, to which instruments both of them are parties;
………………………………………………………………………………………………
93. Whereas, whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law; whereas in particular they are [p 258] required to fulfil their obligations under the United Nations Charter; whereas the Court cannot but note in this respect that the Security Council has adopted a great number of resolutions concerning the situation in the region, in particular resolutions 1234 (1999), 1291 (2000), 1304 (2000), 1316 (2000), 1323 (2000), 1332 (2000), 1341 (2001), 1355 (2001), 1376 (2001), 1399 (2002) and 1417 (2002); whereas the Security Council has demanded on many occasions that 'all the parties to the conflict put an . . . end to violations of human rights and international humanitarian law'; and whereas it has inter alia reminded 'all parties of their obligations with respect to the security of civilian populations under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949', and added that 'all forces present on the territory of the Democratic Republic of the Congo are responsible for preventing violations of international humanitarian law in the territory under their control'; whereas the Court wishes to stress the necessity for the Parties to these proceedings to use their influence to prevent the repeated grave violations of human rights and international humanitarian law which have been observed even recently."

4. The Court's function is to pronounce itself on matters within its jurisdiction and not to voice personal sentiments or to make comments, general or specific, which, despite their admittedly "feel-good" qualities, have no legitimate place in this Order.

5. Who, for example, would not be "deeply concerned by the deplorable human tragedy, loss of life, and enormous suffering in the east of the Democratic Republic of the Congo resulting from the continued fighting there"? (Order, para. 54.) But the expression of this concern in a formal Order of the Court presupposes that the Court has the requisite jurisdiction to deal with that subject-matter. Having determined that it lacks that jurisdiction, it should not pronounce itself with regard to that subject-matter.

6. In paragraph 55, the Court declares that it "is mindful of the purposes and principles of the United Nations Charter and of its own responsibilities in the maintenance of peace and security under the Charter". Of course, how could it be otherwise? But what is the point of this statement? Is it an apologia for the Court's lack of jurisdiction to do what it would like to do in this case? If so, I wonder whether it is appropriate. But more importantly, the Court's own "responsibilities in the maintenance of peace and security under the Charter" are not general. They are strictly limited to the exercise of its judicial functions in cases over which it has jurisdiction. In making the above statement, the Court is not performing these functions because of its lack of jurisdiction. The paragraph reads like a preamble to a resolution of the United Nations [p 259] General Assembly or Security Council, where it would be entirely appropriate. It is not in this Order.

7. As for paragraph 56, the fact that this statement is even-handed in that it addresses both Parties to the case does not make it any more appropriate than it would be if it had been addressed to only one of them. It is inappropriate, first, because the Court has no jurisdiction in this case to call on the States parties to respect the Geneva Conventions or the other legal instruments and principles mentioned in the paragraph. Second, since the request for preliminary measures by the Democratic Republic of the Congo sought a cessation by Rwanda of activities that might be considered to be violations of the Geneva Conventions, the Court's pronouncement in paragraph 56 can be deemed to lend some credence to this claim.

8. This latter conclusion is strengthened by the language of paragraph 93, which bears close resemblance to the language the Court would use if it had granted the provisional measures request. The fact that the paragraph is addressed to both Parties is irrelevant, for in comparable circumstances the Court has issued provisional measures formulated in similar language addressed to both Parties although they were requested by only one of them. See, for example, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. Ill, para. 47. Besides, the Court lacks jurisdiction in this case to address this appeal to both Parties every bit as much as it would were it to address it to only one of them.

9. Whether intended or not, the Court's pronouncements in the foregoing paragraphs, particularly in paragraphs 56 and 93, might be deemed to lend credence to the factual allegations submitted by the Party seeking the provisional measures. In the future, they might also encourage States to file provisional measures requests, knowing that, despite the fact that they would be unable to sustain the burden of demonstrating the requisite prima facie jurisdiction, they would obtain from the Court some pronouncements that could be interpreted as supporting their claim against the other Party.

10. The foregoing reasons lead me to the conclusion that it was not proper as a matter of law for the Court to include the above paragraphs in this Order.

(Signed) Thomas Buergenthal. [p 260]


DECLARATION OF JUDGE ELARABY

1. I have voted against the rejection of the request for the indication of provisional measures submitted by the Democratic Republic of the Congo, mainly because, in accordance with its Statute and its present jurisprudence, the Court should, in principle grant a request for provisional measures once the requirements of urgency on the one hand and likelihood of irreparable damage to the rights of one or both parties to a dispute, on the other, have been established. I am of the opinion that the Court has, under Article 41 of the Statute, a wide-ranging power of discretion to indicate provisional measures. The jurisprudence of the Court has progressively, albeit gradually, advanced from its earlier strict insistence on established jurisdiction to acceptance of prima facie jurisdiction as the threshold for the exercise of the Court's powers under Article 41 of the Statute. This progressive shift has not, in my view, been reflected in the Order.

2. I see Article 41 of the Statute as the point of departure. Article 41 (1) provides that: "[t]he Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party", while Article 41 (2) stipulates that "notice of the measures suggested shall forthwith be given to the parties and to the Security Council" (emphasis added).

3. My reading of the two subparagraphs together convinces me that the Court is vested with a wide scope of discretion to decide on the circumstances warranting the indication of provisional measures. The reference to the Security Council underlines the prominence of the link between the Court and the Council in matters related to the maintenance of international peace and security. The Statute moreover does not attach additional conditions to the authority of the Court to grant provisional measures. In point of fact, the jurisdiction of the Court need not be established at this early stage of the proceedings.

4. As far back as 1962 Judge G. Fitzmaurice wrote that:

"The distinctive feature of the jurisdiction to indicate interim measures is not, however, that it involves any prejudgment of, or may prejudge the eventual decision, of the Court as to its substantive competence to decide the merits. It is that this exercise of jurisdiction involves a certain jurisdictional determination of its own, for its own purposes, before it can be exercised. In short, it involves both a ques-[p 261]tion of merits and a preliminary question of jurisdiction, or rather perhaps of the propriety of exercising it; and this is not the case with any of the other possible exercises of preliminary jurisdiction." (Sir Gerald Fitzmaurice, "Hersch Lauterpacht — The Scholar as Judge, Part II", 38 British Year Book of International Law, 1962, p. 71.)

5. Judge Fitzmaurice also observed that:

"The jurisdiction to indicate interim measures of protection is, so far as the International Court is concerned, part of the incidental jurisdiction of the Court, the characteristic of which is that it does not depend on any direct consent given by the parties to its exercise, but is an inherent part of the standing powers of the Court under its Statute. Its exercise is therefore governed, not by the consent of the parties (except in a remote sense) but by the relevant provisions of the Statute and the Rules of Court." (The Law and Practice of the International Court of Justice: 1951-1954, p. 304.)

I subscribe to this interpretation of the powers conferred by the Statute on the Court.

6. As for the circumstances of the case, the Court acknowledged the magnitude of the tragic events occurring in the Congo by referring to the eleven resolutions adopted so far by the Security Council. The Congo has relied in its request for the indication of provisional measures on a host of compromissory clauses which, if proven applicable, would have established the requisite prima facie jurisdiction. The Court has analysed each of these clauses and found that it does not have prima facie jurisdiction.

7. The Court however stated in paragraph 87, "both the Congo and Rwanda are parties to the Montreal Convention and have been since 6 July 1977 in the case of the Congo and 3 November 1987 in the case of Rwanda", and in paragraph 88, "the Congo has not however asked the Court to indicate any provisional measure relating to the preservation of rights which it believes it holds under the Montreal Convention". Yet in paragraph 88 it chose to conclude on this point that "accordingly the Court is not required, at this stage in the proceedings, to rule, even on a prima facie basis, on its jurisdiction under that Convention nor on the conditions precedent to the Court's jurisdiction contained therein" and then drew the general conclusion in paragraph 89 that "the Court does not in the present case have the prima facie jurisdiction necessary to indicate those provisional measures requested by the Congo".

8. It is factually accurate that the Congo did not specify what measures the Court has requested to adopt to safeguard its rights under the Montreal Convention. But the Congo did refer to the 1998 incident in which a Congo Airlines plane was shot down. In my view, a degree of inconsistency exists between the possible implication in paragraph 88 that [p 262] prima facie jurisdiction might exist and the conclusion in paragraph 89 that since the Congo did not ask the Court to indicate any provisional measures relating to the Montreal Convention, the Court is not required to rule on its jurisdiction. Somehow I find it difficult to reconcile this conclusion by the Court with the circumstances of the case particularly in light of its recent jurisprudence.

9. The Court was more flexible when it considered the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) in July 2000. It then reached out to adopt a less formalistic interpretation of its mandate. In that case the Court twice asserted its power,

"independently of requests for the indication of provisional measures submitted by the parties to preserve specific rights, . . . by virtue of Article 41 of the Statute ... to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require" (I.C.J. Reports 2000, p. 128, para. 44).

10. I hasten to add that I do realize that in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the assertion of jurisdiction was probably more solidly anchored than in the present case. I also recognize that the Court entertained a degree of doubt as to whether the conditions laid down in Article 14 of the Montreal Convention have been fully met so that a referral of the dispute to the International Court of Justice could be made in accordance with the Statute.

11. Notwithstanding such doubts, which I do not hesitate to confess that I share, the provisions of Article 14 of the Montreal Convention together with the reference to the shooting down of a Congolese plane in 1998 should have been considered adequate to establish a prima facie jurisdiction to indicate provisional measures. It is relevant to recall in this context that Judge H. Lauterpacht

"leaned very definitely in the direction of the view that before the Court could grant a request for interim measures there must exist some documentary or instrumental basis for the view that the Court might be possessed of substantive jurisdiction relative to the eventual merits, such as an adjudication clause in a treaty, 'optional clause' declaration, etc.; and also that the particular case must at least not be clearly excluded in some way from the scope of any such clause or declaration — e.g. by a reservation." (Fitzmaurice, op. cit., p. 74.)

The Montreal Convention should have therefore been regarded as a suitable instrumental basis to serve this purpose. [p 263]

12. Thus, the criteria suggested by Judge H. Lauterpacht have, in my opinion, been satisfied with respect to the Montreal Convention. Indeed it was suggested by Mendelson in this context that

"To lay down in advance a hard-and-fast rule for dealing with one of these factors — the possibility of jurisdiction — is to fail sufficiently to take into account the great variability of the others from case to case. If the other circumstances suggest very strongly that interim measures should be indicated, the Court may be justified in indicating them even in the face of substantial — though not overwhelming — doubts as to its substantive jursidiction.” (M. H. Mendelson, "Interim Measures of Protection in Cases of Contested Jurisdiction", 46 British Year Book of International Law, 1972-1973, p. 319.)

13. Another aspect of the Order which I also fail to appreciate is the absence of any reference to the Court's powers under Article 75 (2) of the Rules of Court. It will be recalled that in the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) the Court stated that "pursuant to Article 75, paragraph 1, of its Rules, the Court may in any event decide to examine proprio motu whether the circumstances of the case require the indication of provisional measures" (I.C.J. Reports 2000, p. 127, para. 38) and reiterated its pronouncement that "Article 75, paragraph 2, of the Rules of Court empowers the Court to indicate measures that are in whole or in part other than those requested" (ibid., p. 128, para. 43).

14. In conclusion, it is to be recalled that in the Fisheries Jurisdiction (United Kingdom v. Iceland) case in 1972 the Court first laid down what has now become settled jurisprudence. It stated that:

"on a request for provisional measures the Court need not, before indicating them, finally satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to act under Article 41 of the Statute if the absence of jurisdiction on the merits is manifest" (I.C.J. Reports 1972, p. 15, para. 15).

This positive approach was maintained and reflected in a different context in paragraph 91 of the Order, where the Court recognized the absence of a manifest lack of jurisdiction and dismissed Rwanda's request that the case be removed from the List. In my view, the cumulative effect of the absence of a manifest lack of jurisdiction, on the one hand, and the implied acceptance of prima facie jurisdiction under the Montreal Convention, on the other, should have been considered an adequate basis to found jurisdiction to indicate provisional measures.

15. I am therefore of the opinion that the circumstances of the case reflect an urgent need to protect the rights and interests of the Demo-[p 264]cratic Republic of the Congo. For the aforementioned reasons, I could not join the majority in voting in favour of rejection of the request for the indication of provisional measures.

(Signed) Nabil Elaraby. [p 265]


SEPARATE OPINION OF JUDGE DUGARD

1. While I agree with the Order of the Court rejecting the request for the indication of provisional measures submitted by the Democratic Republic of the Congo, I am unable to agree with the Order of the Court that the case should not be removed from the Court's List.

2. For many years there has been a debate over the question whether an Order for provisional measures, made under Article 41 of the Statute of the International Court of Justice, is binding or not. In the LaGrand case, the Court gave its answer: such an Order is binding upon States (LaGrand (Germany v. United Slates of America), Judgment, I.C.J. Reports 2001, pp. 498-508, paras. 92-116). As a consequence of this decision, provisional measures will assume a greater importance than before and there will be a greater incentive on the part of States to request such measures. In these circumstances, the Court should be cautious in making Orders for provisional measures where there are serious doubts about the basis for jurisdiction and strict in its response to requests for provisional measures where the jurisdictional basis for the claim is manifestly unfounded. If it fails to adopt such an approach, the Court will be inundated with requests for provisional measures.

3. The Court has expressed itself clearly on the need for caution in the granting of provisional measures where there is inadequate basis for the exercise of jurisdiction on the merits of the caseFN1. In the case concerning Legality of Use of Force ( Yugoslavia v. Belgium) the Court stated that it ought not to grant a request for provisional measures "unless the provisions invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established" (Legality of Use[p 266] of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 132, para. 21). This test is endorsed by the Court in its present Order (para. 58).

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FN1 For a survey of this jurisprudence, see the separate opinion of Judge Higgins in the case concerning Legality of Use of Force ( Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), pp. 164-168, paras. 12-25.
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4. The jurisprudence of the Court is less clear on the action it should take, if any, where the Applicant requesting provisional measures has failed to establish, prima facie, a basis for jurisdiction. No doubt this is because before the cases concerning the Legality of Use of Force between Yugoslavia and ten NATO States in 1999, there was no case in which the Applicant requesting provisional measures had failed to establish a prima facie basis for jurisdiction. In these cases the Court addressed the question of what to do in such circumstances and held that two of the ten Applications, those brought by Yugoslavia against Spain and the United States, should be removed from the List of cases before the Court. In these two cases the Court held that where it "manifestly" lacked jurisdiction, by reason, inter alia, of the reservations by Spain and the United States of America to the Genocide Convention excluding the jurisdiction of the Court, the cases should be removed from the List because

"within a system of consensual jurisdiction, to maintain on the General List a case upon which it appears certain that the Court will not be able to adjudicate on the merits would most assuredly not contribute to the sound administration of justice" (Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 773, para. 35; Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (II), p. 925, para. 29).

In the eight other Applications brought by Yugoslavia against NATO States, which were parties to the Genocide Convention but had failed to exclude the Court's jurisdiction by reservation, the Court held that although "at this stage of the proceedings" it could not find that the acts imputed by Yugoslavia to the respondent States fell within the provisions of the Genocide Convention, and could thus afford a basis for the exercise of jurisdiction under Article IX of the Convention, it might be possible for Yugoslavia to develop its position in this respect at a later stage. Hence it refused to remove the cases from the List.

5. It is not my intention to explore the reasoning of the Court on this matter. Suffice it to say that the Court reached its decision in these cases on the circumstances of these cases without attempting to expound any general test for deciding when it "manifestly" lacked jurisdiction. Several formulations which give greater guidance were, however, [p 267] advanced by individual judges in these cases. Judge Higgins stated that where

"it is clear beyond doubt that no jurisdiction exists in a particular case, good administration of justice requires that the case be immediately struck off the List in limine" (Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 169, para. 29).

Judge Gaja, in considering "the situation in which the Applicant invokes a jurisdictional clause in a treaty, but has not shown that a reasonable connection exists between the dispute submitted to the Court and the treaty including the clause", maintained that in such circumstances the case should be struck off the List "only if no such connection could be established at subsequent stages of the proceedings" (Legality of Use of Force ( Yugoslavia v. Italy), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 502). He continued by stating that

"When on the contrary a reasonable connection may conceivably appear in the future, it would be too drastic a solution to remove the case from the List. The applicant State should therefore be given an opportunity to develop its position in a memorial — whether or not its arguments are meritorious." (Ibid.)
Judge Oda, in holding that all ten of Yugoslavia's Applications against NATO States should be struck off the List, reasoned that where the Court finds in an Application for provisional measures that "there is not even a prima facie basis of jurisdiction", this

"should be interpreted as a ruling that it has no jurisdiction whatsoever to entertain the Applications, without leaving any room to retain these cases and to deal with the issue of jurisdiction in the future" (Legality of Use of Force (Yugoslavia v. Belgium), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 159, para. 27).

6. Judge Oda's suggestion that once the Court has found that there is no prima facie basis for jurisdiction in an Application for provisional measures the case should automatically be struck off the List is probably too drastic a response as it fails to allow for a consideration of the circumstances of individual cases. It seems wiser therefore to adopt guidelines for the interpretation of the test of "manifest lack of jurisdiction" which would enable the Court to consider the factors such as the history of the Application, the likelihood that the Applicant will be able to show in future that there exists a reasonable connection between the dispute and the treaty invoked to found jurisdiction (as suggested by Judge Gaja) and the prospects of any preconditions for the establishment of jurisdiction being met. Such guidelines might be subsumed in a test of [p 268]
reasonableness; a case should be removed from the List where there is no reasonable possibility, based on the facts and circumstances of the unsuccessful Application, that the Applicant will at some future date be able to establish the jurisdiction of the Court on the instruments invoked for jurisdiction in the Application for provisional measures.

7. In the present case the Court has rightly held that the instruments invoked by the Applicant, prima facie, provide no basis for jurisdiction. It does not, however, go so far as to hold that there is a "manifest lack of jurisdiction" warranting the removal of the Application from the List (Order, para. 91). The Court gives no clear reason for this finding, but suggests that the failure of the Applicant to meet preconditions for the establishment of jurisdiction or to show a connection between the dispute before the Court and the treaties relied upon for jurisdiction "at this stage in the proceedings" (Order, paras. 79, 82 and 88) might be remedied at a later stage of the proceedings (Order, para. 90). In my view, such a finding sets too low a threshold for "manifest lack of jurisdiction" in the circumstances of the present case, and sets a dangerous precedent for the Court.

8. In the present Application the Congo has relied on eight instruments to found jurisdiction, six of which manifestly do not provide the remotest basis for jurisdiction — as shown by the Court in its Order. The Convention against Torture of 1984 provides no basis for jurisdiction as Rwanda is not a party to this Convention (Order, para. 61). The Convention on Racial Discrimination of 1966 and the Genocide Convention of 1948 provide no basis for jurisdiction as Rwanda has by reservation excluded the jurisdiction of the Court (Order, paras. 67 and 72). The Vienna Convention on the Law of Treaties is inapplicable as there is no dispute whatsoever between the Congo and Rwanda concerning a conflict between a treaty and peremptory norm of international law, as provided for in Articles 53 and 66 (Order, para. 75). The Unesco Constitution is likewise inapplicable as there is no dispute whatsoever between the Congo and Rwanda over the interpretation of the Unesco Constitution as contemplated by Article XIV, paragraph 2, of this Constitution (Order, para. 85). The Constitution of the World Health Organization places obligations on the World Health Organization and not on member States to promote health (Arts. 1 and 2). Article 75 of the Constitution of the WHO could not therefore give the Court jurisdiction over a dispute concerning an allegation that a State had undermined the health of persons in another country (Order, para. 82).

9. This leaves only the compromissory clauses in the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (hereinafter Montreal Convention) and the Convention on the Elimination of All Forms of Discrimination against Women (hereinafter [p 269] Convention on Discrimination against Women) as possible grounds for the establishment of jurisdiction.

10. The claim that Article 14 of the Montreal Convention provides a basis for jurisdiction must be seen in its historical context. In 1999 the Congo brought an Application before the Court similar to the present one in which it sought to found the jurisdiction of the Court on the corn-promissory clause in the Montreal Convention, alleging that in 1998 a civil aircraft had been shot down by the forces of Rwanda, Uganda or Burundi. Following Rwanda's Memorial in response to this allegation, in which it denied that the Congo had defined the nature of the dispute or complied with the preconditions of negotiation or arbitration laid down in Article 14 of the Convention, the Congo notified the Court on 15 January 2001 that it wished to discontinue the proceedings but that it "reserved the right to invoke subsequently new grounds of jurisdiction of the Court" (I.C.J. Yearbook 2000-2001, No. 55, p. 286). In the present Application the Congo again argued that the Court had jurisdiction over the dispute under Article 14 of the Montreal Convention on the basis of the shooting down of the civil aircraft in 1998, but made no request to indicate any provisional measure relating to rights under the Montreal Convention (Order, para. 88). Nor did it even suggest that it had made any attempt at negotiation or arbitration in respect of the dispute over the shooting down of the aircraft in 1998, before or after the withdrawal of its earlier Application in January 2001, despite Rwanda's warning in its Memorial of 2000 that failure to do this constituted a flaw in its argument on jurisdiction. The accumulation of objections to the establishment of jurisdiction under Article 14 of the Montreal Convention — non-compliance with the preconditions for jurisdiction, failure to specify the nature of the dispute or to request provisional measures relating to rights under the Convention and the resurrection of a complaint of 1998 in the form of a cause of action for urgent measures in 2002 — surely indicates that the Montreal Convention manifestly does not constitute a basis for the establishment of jurisdiction. It is "clear beyond doubt that no jurisdiction exists" in this case on the basis of the Montreal Convention — in the words of Judge Higgins (see paragraph 5 above). Moreover, the discontinuance of proceedings based on this jurisdictional ground in 2001 and the rejection of this jurisdictional argument in the present proceedings demonstrates that there is no real possibility that a reasonable connection between the dispute submitted to the Court and Article 14 of the Montreal Convention could be established at subsequent stages of the proceedings (see the comment by Judge Gaja, paragraph 5 above).

11. It is clear that women have suffered disproportionately in the con-[p 270]flict in the eastern part of the Congo. They have been subjected to rape, torture, mutilation and murder and deliberately infected with HIV by forces employing sexual violence as an instrument of terror and war. Crimes of this kind are the concern of international humanitarian law which brings "rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity" within the definition of crime against humanity (Art. 7, para. 1, of the Rome Statute of the International Criminal Court, 1998) and provides for individual criminal responsibility and punishment for such crimes. Whether the Convention on Discrimination against Women, which obliges States to adopt measures to eliminate discrimination against women in their law and practice, but imposes no effective procedures for its enforcement (such as the procedure for inter-State disputes to be found in Article 11 of the Convention on Race Discrimination), is an appropriate instrument for the protection of women in armed conflict remains uncertain.

The Court was not, however, required to consider this matter as the Congo failed to indicate, even on a prima facie basis, that it had complied with the preconditions for the establishment of the Court's jurisdiction under Article 29 of the Convention (Order, para. 79). There was no evidence of a dispute between the Congo and Rwanda over the interpretation or application of the Convention; no evidence of an attempt to settle any dispute under the Convention by negotiation; and no evidence of an attempt to submit any dispute under this Convention to arbitration. The sad truth is that the dispute between the Congo and Rwanda is not about women's rights or the treatment of women but about the armed conflict in the Congo. This was made clear by the Congo in its oral reply when, in response to Rwanda's argument that there had been no negotiation or request for arbitration as required by the compromissory clause in the Convention on Discrimination against Women, it stated that Rwanda had rejected Congo's proposals for "the settlement of certain specific armed conflicts" at a number of conferences and meetings (Order, para. 51).

In these circumstances it is clear that there is no reasonable possibility that Article 29 of the Convention on Discrimination against Women will provide a jurisdictional basis for the present dispute between the Congo and Rwanda over the armed conflict in the eastern Congo. It manifestly provides no basis for jurisdiction as there is no reasonable possibility that the Applicant will in future be able to establish a connection between the dispute before the Court and Article 29.

12. I have endeavoured to show that none of the eight instruments advanced by the Applicant to found jurisdiction in the present proceedings, viewed separately, offers, prima facie, a basis for jurisdiction in the [p 271] present dispute, either now or in future. The absence of jurisdiction is therefore manifest. This conclusion is even stronger if one views the eight instruments cumulatively. The Applicant is clutching at straws to found jurisdiction in this matter. It has clutched at eight straws in the hope that their cumulative effect might compensate for the failure of each one individually to offer a basis for jurisdiction. The Court should show its displeasure for this strategy by striking the Application from the List.

***

13. Both Rwanda and the Congo have suffered seriously in the past decade as a result of civil strife and armed conflict. The present Order makes no judgment on the conduct of either Party. It rightly expresses concern about the human suffering in the region of the eastern Congo and calls upon States in the region to abide by the rule of law (Order, paras. 54-56 and 93). It is not possible to infer that, because Rwanda is the Respondent in the present proceedings, the comments of the Court apply more to it than tc the Congo. Nor may it be suggested that because Rwanda has declined to accept the Court's jurisdiction in this matter that it has anything to hide. It has simply exercised its right not to submit to the Court's jurisdiction, a right which forms the cornerstone of the present international order in which judicial settlement is premised on consent (Order, paras. 57 and 92).

The Court's call to States to act in conformity with international law, particularly international humanitarian law, applies to all States in the region, including both the Congo and Rwanda. It does not in any way prejudge the issues raised in the present proceedings.

(Signed) John Dugard. [p 272]


SEPARATE OPINION OF JUDGE MAVUNGU
[Translation]

Introduction

1. The Court's findings on the request for the indication of provisional measures submitted by the Democratic Republic of the Congo show — if that were needed — how complex this case is. There are those who may not understand why the Court, principal judicial organ of the United Nations, was not able to indicate provisional measures, including in particular measures having a military dimension FN1, in view of the humanitarian tragedies and serious violations, both of human rights and of the basic principles of international humanitarian law, that have been witnessed on its territory FN2. The Court notes, moreover, that it is deeply concerned by the human tragedy in the eastern provinces of the Democratic Republic of the Congo resulting from the fighting there (paragraph 54 of the Order).

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FN1 For an analysis of the issue, see Raymond Ranjeva, "La prescription par la Cour internationale de Justice de mesures conservatoires à portée militaire", in Emile Yakpo and Tahar Boumedra (eds.), Liber Amicorum Judge Mohammed Bedjaoui, 1999, pp. 449459.
FN2 See in particular the report by Mr. Roberto Garreton, Special Rapporteur on the human rights situation in the Democratic Republic of the Congo, presented at the 57th session of the United Nations Human Rights Commission of 1 February 2001; tenth report of the Secretary-General on the mission of the United Nations in the Democratic Republic of the Congo, S/2002/169, of 15 February 2002; Security Council resolution 1417 (2002) of 14 June 2002; resolution of the European Parliament of 14 June 2002 on the situation in the Democratic Republic of the Congo.
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2. Some may also not understand why the Court should have ordered provisional measures in the "parallel case" between the Democratic Republic of the Congo and Uganda (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. Ill), but not in the case at issue between the Democratic Republic of the Congo and Rwanda. The complaints lodged against both States by the Congo are substantially the same.

3. In its Order of 1 July 2000, the Court indicated the following measure in particular:

"Both Parties must, forthwith, prevent and refrain from any action, and in particular any armed action, which might prejudice the rights of the other Party in respect of whatever judgment the Court may [p 273] render in the case, or which might aggravate or extend the dispute before the Court or make it more difficult to resolve." (I.C.J. Reports 2000, p. 129, para. 47 (1).)

4. There is no such indication in the present case. However, the Court did point out that, "whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law". It further noted that the Security Council has adopted a number of resolutions concerning the situation in the region whereby it demanded an end to violations of human rights and of international humanitarian law (paragraph 93 of the Order).

5. According to its established case law, the Court can only indicate provisional measures if it has prima facie jurisdiction and if so required by the circumstances of a given case: the degree of urgency, the protection of the rights of parties, the need to contain or not to aggravate the dispute (see infra). In the present case, the Court did not indicate provisional measures because the provisions relied on by the Applicant do not appear to furnish a prima facie basis for its jurisdiction.

6. Whilst approving the general tenor of the Order, I can only partially agree with its operative provisions. I believe that the Court could have established its prima facie jurisdiction on the basis of at least two com-promissory clauses and indicated certain provisional measures or, at the very least, could have indicated such measures proprio motu in the light of the deplorable human tragedy, the losses of human life and the terrible suffering in the east of the Democratic Republic of the Congo as a result of the fighting there (paragraph 54 of the Order). My argument will be substantiated in the following paragraphs.

7. The complexity of the case submitted to the Court stems from several elements, and in particular the following: the prior procedural history of the case3, the arguments raised to establish the Court's jurisdiction4, the number of provisional measures sought and the nature of [p 274] certain of them5 and, lastly, the extent of the violations of human rights and of the basic rules of international humanitarian law6.
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FN3 The first Application instituting proceedings by the Democratic Republic of the Congo against Rwanda was lodged on 23 June 1999, before being withdrawn on 15 January 2001.
FN4 The Democratic Republic of the Congo relied on a number of legal grounds to establish the jurisdiction of the Court: general jurisdiction (United Nations Charter, Statute of the Court, case law of the Court); jurisdiction pursuant to specific international treaties (International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Prevention and Punishment of the Crime of Genocide, Convention on the Elimination of All Forms of Discrimination against Women, the Constitution of the World Health Organization, the Constitution of Unesco, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation); jurisdiction derived from the supremacy of peremptory norms - - jus cogens — (International Bill of Human Rights, African Charter on Human and Peoples' Rights, Convention on the Rights of the Child, etc.).
FN5 The Democratic Republic of the Congo called for no less than 19 measures, including some that related to the merits of the case (e.g. "fair and equitable compensation for the damage suffered").
FN6 There is a certain discrepancy between the extent of the violations of human rights and of international humanitarian law and the narrowness of the Court's jurisdiction to indicate provisional measures.
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8. My argument will address two fundamental questions: the foundation of the Court's jurisdiction (I) and the conditions for the indication of provisional measures (II).

I. The Foundation of the Court's Jurisdiction

9. It is a general principle of international law that no State may be brought before an international court by another State without its consent FN7 This principle was upheld by the Washington Committee of Jurists responsible for drafting the Statute of the International Court of Justice when they abandoned the idea of providing therein for the automatic compulsory jurisdiction of the Court in favour of jurisdiction being subject to the acceptance of States FN8. The Committee feared that the institution of automatic compulsory jurisdiction might impede the ratification of the Charter, and indeed of the Statute, by a large number of States and in particular by most of the major powers FN9. A provision for acceptance of an optional compulsory jurisdiction clause appeared to be the most appropriate solution: the Court's jurisdiction is thus both optional and compulsory FN10.

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FN7 In the same vein, see Michel Dubisson, La Cour Internationale de Justice, 1964, p. 152; Shabtai Rosenne, The Law and Practice of the International Court, 1965, p. 313.
FN8 See Article 36, paragraph 1, of the Statute of the International Court of Justice. This Article is essentially the same, save in certain very minor respects, as Article 36 of the Statute of the Permanent Court of International Justice (P.C.I.J.).
FN9 See Dubisson, op. cit. p. 145.
FN10 See Article 36, paragraphs 1 and 2, of the Statute.
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10. The Court has had occasion to assert and reconfirm the principle of State consent in a number of cases. Thus in the case concerning East Timor (Portugal v. Australia) it stated:

"The Court recalls in this respect that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction." (I.C.J. Reports 1995, p. 101, para. 26.)

11. When proceedings before the Court are instituted by means of an [p 275] application, the latter must indicate, in addition to the parties to the dispute and subject-matter, "the legal grounds upon which the jurisdiction of the Court is said to be based" FN11.

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FN11 See Article 40, paragraph 1, of the Statute and Article 38, paragraphs 1 and 2, of the
Rules.
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12. However, in the last resort, any question relating to the Court's jurisdiction must be settled by the Court itself FN12:

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FN12 Article 36, paragraph 6, of the Statute stipulates that: "In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the
Court."
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"The Court points out that the establishment or otherwise of jurisdiction is not a matter for the parties but for the Court itself. Although a party seeking to assert a fact must bear the burden of proving it (see Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para. 101), this has no relevance for the establishment of the Court's jurisdiction, which is a 'question of law to be resolved in the light of the relevant facts' (Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1988, p. 76, para. 16)." (Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, I.C.J. Reports 1998, p. 450, para. 37.)

13. The Democratic Republic of the Congo, in its Application instituting proceedings, its request for the indication of provisional measures and its oral arguments at the public hearings of 13 and 14 June 2002, submitted a number of legal grounds for the jurisdiction of the Court, and in particular: its declaration of acceptance of the compulsory jurisdiction of the Court, and various compromissory clauses and peremptory norms (jus cogens).

1. The Congolese Declaration of Acceptance of the Compulsory Jurisdiction of the Court

14. Article 36, paragraph 2, of the Statute provides:

"The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes . . ."

15. Under this provision, commonly known as the "optional compul-[p 276]sory jurisdiction clause" FN13 any State party to the Statute may accept the Court's jurisdiction and thereby give the Court general compulsory jurisdiction over the disputes provided for in Article 36, paragraph 2, of the Statute.

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FN13 For further analysis of this issue see inter alia: Dubisson, op. cit., pp. 159 et seq.; Edvard Hambro, "Some Observations on the Compulsory Jurisdiction of the International Court of Justice", British Year Book of International Law, Vol. 25, 1948, pp. 133157; "The Jurisdiction of the International Court of Justice", Recueil des cours de l'Académie de droit international de La Haye (RCADI), Vol. 76, 1950, pp. 125-215; Jean-Pierre Quéneudec, "Les Etats africains et la compétence de la CIJ", Annales africaines 1967, pp. 27-50; Humphrey Waldock, "Decline of the Optional Clause", British Year Book of International Law, Vol. 32, 1955-1956, pp. 244-287.
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16. The above-mentioned optional clause is simply a restatement of the clause contained in the Statute of the Permanent Court of International Justice, which only differed in that it allowed States the possibility of accepting the Court's jurisdiction in either all or only certain of the categories of legal disputes provided for in Article 36, whereas acceptance under the Statute of the International Court of Justice covers all such disputes.

17. The optional clause regime leaves it up to the States parties to the Statute to choose whether or not to make such a declaration. In accordance with this principle the Democratic Republic of the Congo accepted the compulsory jurisdiction of the Court by a declaration of 8 February 1989, whose terms are as follows:

"The Executive Council of the Republic of Zaire [currently the Government of the Democratic Republic of the Congo] recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the International Court of Justice in all legal disputes concerning:

(a) the interpretation of a treaty;

(b) any question of international law;

(c) the existence of any fact which, if established, would constitute a breach of an international obligation;

(d) the nature or extent of the reparation to be made for the breach of an international obligation.
………………………………………………………………………………………………

18. Whilst the declaration of acceptance of the Court's compulsory jurisdiction is a unilateral instrument, the declarant State nevertheless establishes a true consensual relationship with the other States parties to the optional clause system. The Rwandese Government has, however, never made any optional declaration under Article 36, paragraph 2, of the Statute. As a result, the Court's jurisdiction cannot be founded on the declaration by the Congolese Government. This was indeed admitted by the Congo in oral argument:

"The Government of the Democratic Republic of the Congo is aware that the present case or, more precisely, that the jurisdiction of the Court in this case, cannot be established either on the basis of a special agreement, which does not exist here, or on acceptance of the compulsory jurisdiction of the Court, the Republic of the Congo having made a declaration of acceptance while Rwanda has hitherto refrained from doing so." (CR 2002/36, p. 32.)

19. The existence of declarations accepting the compulsory jurisdiction of the Court between the parties to a dispute is thus indispensable in order for the Court's jurisdiction to be founded on such instruments. Even then, the Court's jurisdiction can arise only from a comparison between the broadest declaration and the most restrictive one, with the latter prevailing as the lowest common denominator FN14. In the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the Court based its finding of prima facie jurisdiction on the Congolese declaration of 8 February 1989 and on the Ugandan declaration of 3 October 1963:

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FN14 For an analysis of the declarations by African States, see inter alia Mvumbi-di-Ngoma Mavungu, Le règlement judiciaire des différends interétatiques en Afrique, 1992, pp. 156 et seq.
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"Whereas the Court considers that the declarations made by the Parties in accordance with Article 36, paragraph 2, of the Statute constitute a prima facie basis upon which its jurisdiction in the present case might be founded." (I.C.J. Reports 2000, p. 123, para. 34.)

2. The Compromissary Clauses

20. The Democratic Republic of the Congo relied on a number of compromissory clauses for purposes of establishing the Court's jurisdiction. These clauses can be divided into three categories in the light of the reservations submitted by Rwanda, the grounds of defence raised by the Parties and the evolution of international law: those clauses which establish the Court's jurisdiction, those clauses capable of establishing the Court's jurisdiction and those clauses incapable of establishing the Court's jurisdiction.

A. Clauses establishing the Court's jurisdiction

21. I consider that three treaties should be placed under this heading: the Constitution of the World Health Organization of 22 July 1946, the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971 and the Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979.

22. The Rwandese Government has made no reservations with respect to the compromissory clauses providing for the jurisdiction of the Court [p 278] contained in the above-mentioned treaties. The Court's jurisdiction was disputed on the grounds that the prior conditions for its seisin were not fulfilled, that there was no element of urgency, or that the Democratic Republic of the Congo had not stipulated in its Application which rights had been violated in the light of any particular convention.

(I) The Constitution of the World Health Organization (WHO)

23. The Constitution of the WHO of 22 July 1946 contains a compromissory clause which reads as follows:

"Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement." (Art. 75.)

24. Rwanda contested the jurisdiction of the Court founded on Article 75 of the WHO Constitution on the following grounds:

"The Congo has made no attempt to identify which provision of the Constitution it considers to be in issue. Nor has it made any effort to satisfy the procedural condition for seising the Court . . . Article 75 confers jurisdiction on the Court if — and only if — the dispute in question has not been settled by negotiation or by the Health Assembly . . . The Congo has made no attempt to do so. That being the case, Article 75 cannot afford a basis for jurisdiction in the present case." (CR 2002/37, p. 24.)

25. The decline in the health of the Congolese population and in medical infrastructures as a result of the war has been condemned by various institutions, both public and private. The consequences of this situation include: losses of human life, the widespread propagation of the HIV/ AIDS virus, the re-emergence of diseases previously eradicated (tuberculosis, leprosy, onchocercosis or river blindness, sleeping sickness, cholera, etc.), and the appearance of other diseases (cretinism, etc.). The National Vaccination Days (NVD) in the campaign against polio, which involve some 13 million children living in Congolese territory, are often disturbed in the areas of conflict.

26. In a report of 2001 the humanitarian organizations Oxfam, Save the Children and Christian Aid noted the following:

"Prior to start of the conflict in 1998, available health data showed that the existing infrastructure was already failing to deliver quality, affordable care to the majority of the DRC's population. The war has made this situation even worse. Hospitals, clinics, and health posts have been destroyed, medication cannot be delivered, and routine vaccination programmes have been disrupted. Many people [p 279] struggle to pay for health services; some cannot afford to pay at all. Moreover, many people now live in such difficult conditions that they run a much greater risk of falling ill." FN15

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FN15 "No End in Sight: The Human Tragedy of the Conflict in the Democratic Republic of the Congo", Activity Report, August 2001, p. 20; see also Garretôn, op. cit., p. 32.
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27. In the same vein, the European Parliament, in its resolution of 14 June 2002 on the situation in the Democratic Republic of the Congo, reported on the worsening of social conditions as a result of the continuing fighting:

"Whereas the three-and-a-half year conflict in the DRC has dramatically increased the rates of malnutrition and mortality in that country, with 70 per cent of the people living in the war affected areas having no access to health care or adequate food supplies." (Preamble, point D.)

28. These statements clearly establish a link between the situation of conflict and the population's worsening living conditions. It is true that the WHO Constitution provides primarily for obligations to be fulfilled by the organization itself FN16. However, any State which becomes a Member of the WHO has a duty not only to co-operate with the organization to assist in fulfilling the mission assigned to it, but also to act in order to provide the population with the best possible level of health. Any failure to uphold the right to health is contrary to the object and purpose of the WHO Constitution FN17. It would be wrong to assert that this Constitution does not lay down any obligations for Member States. In his dissenting opinion in the case concerning Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Judge Weeramantry raised the issue of the obligations of States under the WHO Constitution:

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FN16 Article 1 stipulates that the objective of the WHO is "the attainment by all peoples of the highest possible level of health".
FN17 For an analysis of the right to health as a human right, see Mohammed Bedjaoui, "Le droit à la santé, espoirs, réalités, illusions", in Journal international de bioéthique,
Vol. 9, No. 3, 1998, pp. 33-38. Article 12 of the International Covenant on Economic, Social and Cultural Rights, of 16 December 1966, enshrines the right to health.
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"Quite apart from their responsibilities under customary international law and any other conventions to which they are parties, the States that are parties to the WHO Constitution, which is itself an international treaty, accepted certain principles and obligations.
………………………………………………………………………………………………
There is thus a commitment to the attainment by all people to the highest possible level of health, to regarding the achievement of the [p 280] highest achievable standard of health as a fundamental right of every person on the planet, a recognition of health as fundamental to peace, and of the duty of State co-operation to achieve this ideal." (I.C.J. Reports 1996 (I), p. 146.) FN18

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FN18 The preamble to the WHO Constitution provides: "The health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States . . . Governments have a responsibility for the health of their peoples."
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29. The dispute between the Democratic Republic of the Congo and Rwanda concerns the application of the WHO Constitution in the case of alleged violations of the obligations thereunder. Article 75 lays down a prior condition before the Court can be seised: negotiation or the inter-vention of the Health Assembly. In oral argument, the Democratic Republic of the Congo, without providing any evidence therefor, informed the Court of various negotiations between the two Parties with a view to achieving a global settlement of the armed conflict on Congolese territory, including by the organization of arbitration (CR 2002/38, pp. 1011). Very possibly the discussions between the Congolese and Rwandan authorities did not specifically concern the obligations of their respective States under the WHO Constitution, but rather the upholding of human rights and of international humanitarian law, as well as the withdrawal of foreign troops from Congolese territory and the conditions for such withdrawal. The allegations by the Democratic Republic of the Congo concerning the violations of the right to health form part of the overall violations of human rights and of international humanitarian law. It may therefore be reasonably considered that the Parties attempted to settle the dispute by negotiation FN19.

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FN19 Concerning the legal value of the principle of recourse to prior diplomatic negotiations, see Georges Abi-Saab, Les exceptions préliminaires dans la procédure de la Cour
internationale, 1967, p. 125; Paul Guggenheim, Traité de droit international public, Vol. II, 1953, p. 148; Charles De Visscher. Aspects récents du droit procédural de la Cour
internationale de Justice, 1966, p. 86; Jacques Soubeyrol, "La négociation diplomatique, élément du contentieux international", Revue générale de droit international public, Vol. 68, 1964, p. 323; Waldock, op. cit., p. 266.
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30. When a jurisdiction clause provides for recourse to prior diplomatic negotiations, it is self-evident that the parties have to comply therewith. This requirement is rather an obligation of conduct than of result. In the light of the Court's case law, it is for the Court itself to rule proprio motu on compliance or non-compliance with that obligation. The Court has moreover given a wide interpretation to the notion of "diplomatic negotiations" (exchanges of views: diplomatic notes, protests, discussions within an international organization, talks) FN20.

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FN20 See inter alia Right of Passage over Indian Territory, I.C.J. Reports 1960, pp. 148-149; South West Africa. Preliminary Objections, I.C.J. Reports 1962, pp. 344 et seq.; Border and Transborder Armed Actions (Nicaragua v. Honduras), I.C.J. Reports 1988, pp. 99 et seq.
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[p 281]
31. The attitude of each Party during the prior negotiations is crucial in order to assess whether or not this requirement has been met:

"Negotiations do not of necessity always presuppose a more or less lengthy series of notes and despatches; it may suffice that a discussion should have been commenced, and this discussion may have been very short; this will be the case if a deadlock is reached, or if finally a point is reached at which one of the Parties definitely declares himself unable, or refuses, to give way, and there can therefore be no doubt that the dispute cannot be settled by diplomatic negotiation." (Mavrommatis Jerusalem Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No. 2, p. 13.)

32. Article 75 of the Constitution of the WHO provides that the dispute "shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement". It was apparent from the Parties' oral pleadings that the dispute was not capable of settlement by arbitration, nor could it be referred to the Court by a special agreement for judicial settlement. The only remaining option was seisin of the Court by an application instituting proceedings.

(2) The Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil A viation

33. The Democratic Republic of the Congo also relied upon Article 14, paragraph 1, of the Montreal Convention of 1971 to establish the jurisdiction of the Court. The compromissory clause contained in that Article provides for prior conditions to be met before seisin of the Court: the dispute must pertain to the interpretation or to the application of the Convention; the parties must have attempted to settle the dispute by means of negotiation or arbitration FN21.

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FN21 In the case concerning Questions of Interpretation and Application of the ¡971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), the Court refused to grant the Libyan request for the indication of provisional measures:

"the requested provisional measures should not be indicated because Libya had not presented a prima facie case that the provisions of the Montreal Convention provide a possible basis for jurisdiction inasmuch as the six-month period prescribed by Article 14, paragraph 1, of the Convention had not yet expired when Libya's Application was filed; and that Libya had not established that the United States had refused to arbitrate" (Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992, p. 122, para. 25).
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34. It should be observed that Rwanda has made no reservation to the above-mentioned compromissory clause. Accordingly, two essential elements have to be considered in order to establish the jurisdiction of the Court and to lead it to indicate one or more provisional measures on the basis of the Montreal Convention: on the one hand, fulfilment of the conditions precedent and, on the other, satisfaction of the conditions [p 282] that govern provisional measures (urgency, the protection of the rights of the parties and the need to avoid any aggravation of the dispute).

35. The arguments in the previous section concerning prior diplomatic negotiations may also be applied here. In regard to arbitration, it would appear that the Democratic Republic of the Congo met with refusal by Rwanda, despite the proposals in this regard stated to have been made in July 2001 (Lusaka), September 2001 (Durban), January 2002 (Blantyre) and March 2002 (Lusaka). Prima facie, the dispute was not susceptible of settlement by arbitration: there was or should have been no other option than to refer it to the Court.

36. Establishment of its jurisdiction is not sufficient in itself for the Court to indicate provisional measures. The applicant has to show, in a given case, that the conditions governing such measures are met. Not only did the Democratic Republic of the Congo fail "to ask the Court to indicate any provisional measure relating to the preservation of rights which it believes it holds under the Montreal Convention", but in addition the disputed event dates back to 9 October 1998. The urgency which justifies the indication of provisional measures would thus seem to have disappeared. The occasion for consideration of the incident would be during the examination of the merits of the case, unless the current intensity of air traffic between Kinshasa and the eastern provinces, following the signing on 19 April 2002 at Sun City of a political agreement (between the Congolese Government, civil society, the unarmed political opposition and the armed political opposition (with the exception of the RCD/Goma)) justifies the indication of a preventive measure for the protection of commercial aircraft and their passengers.

37. Some clarification of the imputability of the wrongful act is called for. The international responsibility of a State derives from the violation of a norm and from the attribution of such violation to that State. In the present case, the shooting-down of the Boeing 727 (belonging to the company Congo Airlines) on 9 October 1998 in Kindu (Maniema Province) was attributed not only to Rwanda, but also to Uganda and to Burundi. In its Memorial of 20 April 2000 FN22, Rwanda denied the Congo's charges on the ground that three States could not be accused of one and the same act.

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FN22 Rwanda submitted a Memorial to the Court, on 21 April 2000, after the first Application had been lodged by the Democratic Republic of the Congo, and stated therein:
"Moreover, Rwanda notes that Congo has made identical allegations in respect of the same incident against both Burundi and Uganda in its separate applications against those two States." (Memorial of the Rwandese Republic, 21 April 2000, p. 13, para. 2.19.)
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38. Since the start of the armed conflict in Congolese territory, in August 1998, Rwanda, Uganda and Burundi have been accused by the [p 283] Democratic Republic of the Congo of involvement in armed activities on its territory. It follows that, depending on the circumstances, the respon-sibility of those States may be established either individually or collectively.

(3) The Convention on the Elimination of All Forms of Discrimination against Women

39. Article 29, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979 was cited by the Democratic Republic of the Congo for the purpose of establishing the Court's prima facie jurisdiction. The following rights are claimed to have been impaired or nullified: the right to life, the right to physical and mental integrity, the right to dignity, the right to health etc. In its oral pleadings, the Democratic Republic of the Congo cited violations of human rights and of international humanitarian law of which women had been the victims: sexual violence, systematic spread of the AIDS virus etc. Further, 15 women were alleged to have been buried alive at Mwenga (South Kivu Province) in November 1999 FN23.

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FN23 See CR 2002/37, p. 23.
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40. All of these acts are claimed to be contrary to Article 1 of the Convention, which provides that discrimination against women

"shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women . . ., on a basis of equality between men and women, of human rights and funda-mental freedoms in the political, economic, social, cultural, civil or any other field".

41. Could Article 29, paragraph 1, of the Convention on Discrimination against Women apply in this case? The compromissory clause contained in that Article is identical to that in Article 14, paragraph 1, of the Montreal Convention of 1971 (see supra). Mutatis mutandis, the same reasoning is equally applicable here.
42. However, it has to be shown that the above-mentioned allegations against the Respondent are covered by the spirit and letter of the 1979 Convention. It is true that the allegations made by the Democratic Republic of the Congo concern violations of the basic rules of international humanitarian law, particularly in light of Article 27, paragraph 2, of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 FN24 and Article 76, paragraph 1, of Additional Protocol I to the Geneva Conventions relating to [p 284] the Protection of Victims of International Armed Conflicts of 8 June 1977 FN25.

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FN24 Article 27, paragraph 2, provides: "Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of
indecent assault."
FN25 Article 76, paragraph 1, of Additional Protocol I incorporates the text of Article 27, paragraph 2, of the Fourth Convention.
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43. It is likewise true that the Convention of 18 December 1979 was adopted in order to provide better protection to women by prohibiting any discrimination between men and women of whatever kind. To this end the States parties have undertaken to "take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise" (Art. 2 (d)).

44. Generally, the main aims of the 1979 Convention are to protect the dignity of women and to allow them full enjoyment of their rights. On an extensive interpretation, it may be concluded that every violation of a right suffered by a woman by reason of being a woman would be covered by the Convention. Here, the Applicant is not seeking to have the alleged violations extended also to men in order that the discrimination should cease, but to secure the cessation of violent acts allegedly committed against women — in this case by armed groups — because they are being targeted as women.

45. The issue of the Court's territorial or ratione loci jurisdiction over violations of human rights alleged to have taken place on the territory of the Applicant and attributable to the Respondent has not been raised at this stage of the proceedings. It is generally accepted that a State party to a convention can incur responsibility if it commits a wrongful act contrary to that convention on the territory of another State party. Thus in the case of Loizidou v. Turkey the European Court of Human Rights, interpreting the term "jurisdiction" in Article 1 of the European Human Rights Convention, stated the following: "the responsibility of a Contracting Party may also arise when as a consequence of military action — whether lawful or unlawful — it exercises effective control of an area outside its national territory" FN26.

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FN26 Cited by Vincent Berger, Jurisprudence de la Cour européenne des droits de l'homme, 2000, p. 554; see also Gérard Cohen-Jonathan, La convention européenne des droits de l'homme, 1989, p. 94.
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46. Addressing the issue of the territorial or ratione loci jurisdiction of the African Commission on Human and Peoples' Rights, Fatsah Ouguergouz takes the view that:
"Neither the African Charter nor the Commission's Rules address this question. It is, however, implicit that the Commission can deal with violations of human and peoples' rights occurring on the territory of any State party to the African Charter. Nor is it excluded that it can also deal with a violation of a human right attributable to [p 285] a State party even if that violation took place outside the territory subject to the latter's jurisdiction." FN27

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FN27 La charte africaine des droits de l'homme et des peuples, 1993, p. 316. Having been seised of a communication-complaint by the Democratic Republic of the Congo on 24 February 1999 against Burundi, Uganda and Rwanda regarding massive grave violations of human and peoples' rights allegedly committed by the armed forces of those countries on Congolese territory, the African Commission on Human and Peoples' Rights declared communication 227/99 admissible under Articles 47, 48, 49, 50. 51 of the Charter and 97, 99 and 100 of the Rules of Procedure.
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47. Thus there can be no dispute as to the Court's jurisdiction ratione loci on account of internationally wrongful acts allegedly committed by one State on the territory of another, even in the case of human rights violations.

B. Provisions capable of founding the Court's jurisdiction

48. Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 was invoked by the Democratic Republic of the Congo as a basis for the Court's jurisdiction. That compromissory clause reads as follows:

"Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute."

49. When it became party to the 1948 Convention, Rwanda made a reservation excluding the Court's jurisdiction: "the Rwandese Republic does not consider itself bound by Article IX of the Convention". That reservation raises a number of issues. Is it compatible with the object and purpose of the Convention? Is the Democratic Republic of the Congo entitled to object to Rwanda's reservation, 27 years after the latter's accession to the Convention? Is the Court entitled to construe the 1948 Convention taking account of the development of international law in this area, particularly in light of the entry into force of the Rome Statute of the International Criminal Court of 17 July 1998?

50. The Democratic Republic of the Congo has objected to Rwanda's reservation on the ground that the Genocide Convention contains norms of jus cogens: genocide is a crime under international law. The Congo likewise considers that Rwanda, having successfully asked the Security Council for the creation of an ad hoc international criminal court to try and punish crimes committed on Rwandan territory in 1994, is not entitled to take two attitudes to genocide:
"In the present case Rwanda cannot, a fortiori, reject the jurisdiction of the International Court of Justice having requested [p 286] (S/l994/1115) and procured the creation by the international community of an ad hoc international criminal tribunal to try the Rwandan perpetrators of genocide in 1994. To conclude otherwise would leave beyond the scope of judicial intervention the serious acts of genocide committed against Congolese populations and the international community of which Rwanda stands accused." (CR 2002/36, p. 52.)

51. Relying on the Court's jurisprudence in the cases concerning Legality of Use of Force ( Yugoslavia v. Spain) ( Yugoslavia v. United States of America) FN28, Rwanda rejected the argument put forward by the Democratic Republic of the Congo. It does not deny that the substantive provisions prohibiting genocide have the status of jus cogens, but it contends that the jurisdictional clause in Article IX does not have that characteristic (see CR 2002/37, p. 16).

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FN28 In those cases, the Court was unable to establish its jurisdiction, even prima facie, on the ground that Spain and the United States had made reservations to the Article IX jurisdictional clause (see I.C.J. Reports 1999 (II). p. 772; ibid., p. 916).
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52. Contrary to the position under other compromissory clauses, the only forum provided in Article IX of the 1948 Convention for the settlement of any dispute relating thereto is the Court. As a result, any State which, on becoming party to that Convention, makes a reservation to the jurisdictional clause would escape judicial sanction in the event that its representatives or agents should commit acts constituting the crime of genocide.

53. It is well established that a reservation to an international treaty is acceptable only if it is not incompatible with the object and purpose of that treaty FN29. It is true, as the Court points out, that the Genocide Convention does not prohibit reservations (see paragraph 72 of the Order). But that does not mean that States may make whatever reservations they please. Moreover, the Court stated as much in its Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide:
---------------------------------------------------------------------------------------------------------------------
FN29 See Article 19 (c) of the Vienna Convention on the Law of Treaties of 23 May 1969. On reservations, see inter alia Suzanne Bastid, Les traités dans la vie internationale. Conclusion et effets, 1985, pp. 71-77. Pierre-Henri Imbert. Les réserves aux truites multilatéraux, 1979; Daniel Kappeler, Les réserves dans les traités internationaux, 1957; José-Maria Ruda, "Reservations to Treaties", RCADI, Vol. 146, 1975, pp. 139-148.
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"It has nevertheless been argued that any State entitled to become a party to the Genocide Convention may do so while making any reservation it chooses by virtue of its sovereignty. The Court cannot share this view. It is obvious that so extreme an application of the idea of State sovereignty could lead to a complete disregard of the object and purpose of the Convention." (I.C.J. Reports 1951, p. 24.)

54. The object and purpose of the 1948 Convention is, on the one [p 287] hand, to clarify the notion of genocide and, on the other, to induce States parties to prevent any act of genocide and, in the event of failure to do so, to punish it. The mechanism for the settlement of disputes between States provided for by the Convention is an essential element in its application, and thus in ensuring its respect by States parties. In this regard Maurice Arbour notes:

"The object and purpose of the Genocide Convention is clearly the punishment of Genocide. But can it be said that certain articles concerning the application of the Convention, such as obligatory recourse to the International Court of Justice in the case of disputes, are necessarily excluded from the scope of the Convention's object and purpose?" FN30

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FN30 Droit international public, 3rd ed., 1997, p. 89.
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55. Without settling the question raised by Maurice Arbour, and adhering to its jurisprudence on the matter, the Court stated: "that reservation does not bear on the substance of the law, but only on the Court's jurisdiction; whereas it therefore does not appear contrary to the object and purpose of the Convention" (see paragraph 72 of the Order).

56. The Court will undoubtedly have to return to this issue when it considers the merits of the case. As principal judicial organ of the United Nations, the Court is under a duty to make its contribution to the punishment of genocide, since this is a "crime under international law" (see Article I of the Convention). It should be noted that Article 120 of the Rome Statute does not allow of any reservation.

57. It would seem that the Court is in a dilemma: to declare any reservation to the Article IX jurisdictional clause incompatible with the object and purpose of the Convention would be to create a veritable "revolution". Not only would such a position represent a break with its previous case law FN31, but it could result in States parties to the Convention which have excluded the Court's jurisdiction by making reservations to the jurisdictional clause denouncing the Convention under Article XIV. A choice will have to be made.

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FN31 See the cases concerning Legality of Use of Force (Yugoslavia v. Spain) (Yugoslavia v. United States of America ), I.C.J. Reports 1999 (II), pp. 772 and 916.
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58. The international community has endowed the Court with a key role in the punishment of genocide. Neither negotiation nor arbitration would be appropriate mechanisms for dealing with a dispute between States in this regard:

"The Genocide Convention is one of the rare cases where the possibility of intervention by the International Court of Justice may be regarded as an essential condition in order to render the Convention effective. For the Court represents the only means of recourse against [p 288] violations of a treaty the object of which is precisely to prohibit States from committing certain acts." FN32

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FN32 Imbert, op. cit., p. 344; see also Joe Verhoeven, "Le crime de génocide. Originalité et ambiguïté", Revue belge de droit international, 1991/1, pp. 5-26.
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59. The Court's jurisdiction will also have to be assessed in light of the facts presented by the Applicant as constituting genocide (see CR 2002/36, pp. 22-24, 44-48).

C. Provisions not capable of founding the Court's jurisdiction

60. Certain of the compromissory clauses cited by the Applicant cannot, for various reasons, constitute a basis for the Court's jurisdiction. This is true in particular of the Constitution of Unesco (Art. XIV, para. 2) and the Convention against Torture and Other Cruel, Inhuman or Degrading Punishments or Treatments (Art. 30. para. 1).

( 1 ) The Unesco Constitution

61. The Unesco Constitution of 16 November 1945 provides in Article XIV, paragraph 2:

"Any question or dispute concerning the interpretation of this Constitution shall be referred for determination to the International Court of Justice or to an arbitral tribunal, as the General Conference may determine under its rules of procedure."

62. This jurisdictional clause is confined to disputes concerning the interpretation of the Constitution. Moreover, seisin of the Court is made subject to special conditions. In the present case the Democratic Republic of the Congo accuses Rwanda of hindering the exercise of the right to education in the areas of Congolese territory which it controls. That dispute concerns the actual application of the Constitution and not the interpretation of some provision thereof FN33.

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FN33 For Rwanda's argument see CR 2002/37, pp. 18-19. See also the Court's position in paragraph 85 of the Order.
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63. As regards the protection of human rights under Unesco, the latter's Executive Board has set up a Committee on Conventions and Recommendations. The task of that Committee is to examine periodic reports from member States on the application of conventions and recommendations at the request of the Executive Board.

64. In its decision 104 EX/3.3 of 1978, the Executive Board gave the Committee power to examine communications concerning the exercise of human rights in respect of matters falling within Unesco's competence (the campaign against discrimination in education, for example). Such communications can come from private individuals or from associations which consider themselves to have been victims of a violation of human [p 289] rights in a field covered by Unesco's remit. The communications must provide relevant evidence, be submitted within a reasonable time and show that attempts have been made to exhaust local remedies FN34.

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FN34 See Nicholas Valticos, "Les mécanismes internationaux de protection des droits de l'homme", in International Law: Achievements and Prospects, general editor Mohammed Bedjaoui, 1991, 2 vols.. Vol. 2, p. 1228.
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(2) The Convention against Torture

65. There are a number of reports of torture and cruel, inhuman or degrading treatment on the territory of the Democratic Republic of the Congo as a result of the armed conflict FN35. The right of every individual not to be subjected to torture or to cruel treatment forms part of the "inviolable core" of human rights which every State must respect, whether or not it is party to the Convention against Torture. That Convention enshrines norms of jus cogens.

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FN35 See in particular Garretôn, op. cit.; White Paper (4 vols.) published by the Democratic Republic of the Congo, Ministry for Human Rights, 1999-2002.
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66. The Democratic Republic of the Congo is party to the Convention against Torture, whereas Rwanda is not. This raises the problem of whether the jurisdictional clause provided for in Article 30, paragraph 1, is opposable to the Rwandese Republic. While it is true that peremptory norms are applicable erga omnes, a compromissory clause is not opposable to a State which is not party to a convention containing that clause. The Court's jurisdiction has to be accepted, either generally, or specifically:

"the Court has repeatedly stated 'that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction' (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 101, para. 26)" (Legality of Use of Force (Yugoslavia v. Canada), Provisional Measures, Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 266, para. 19).

67. The opposability of a norm of jus cogens is one thing, the rule regarding consent to the Court's jurisdiction, whether under a compromissory clause or any other instrument, is quite another FN36. It is a well-established principle that the Court's jurisdiction derives from the consent of the parties FN37.

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FN36 See East Timor (Portugal v. Australia), I.C.J. Reports 1995, p. 102, para. 29.
FN37 See Ian Brownlie, Principles of Public International Lan, 3rd ed., 1979, pp. 716-717.
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II. The Conditions for the Indication of Provisional Measures

68. The hearings at which the Parties made their oral presentations took place at a time when the Security Council was examining a request [p 290] by the Democratic Republic of the Congo for reclassification of the mandate of the United Nations Mission to the Congo (MONUC) FN38 as well as the possibility of extending that mandate FN39. Some might query the compatibility of two United Nations organs being seised of the same matter. In other words, was the Court entitled to indicate provisional measures at a time when the Security Council was considering developments in the armed conflict in the Democratic Republic of the Congo, notably in light of the events which occurred in Kisangani in May 2002?

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FN38 The Democratic Republic of the Congo wants MONUC to become a peacekeeping mission under Chapter VII of the Charter.
FN39 MONUC's mandate was extended to 30 June 2003. See Security Council resolution 1417 (2002) of 14 June 2002.
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69. Under Article 24 of the United Nations Charter, the Security Council has primary responsibility for the maintenance of international peace and security. That responsibility is only primary and not exclusive. The other organs of the United Nations also contribute to the maintenance of international peace and security, by virtue of their statutory and implicit powers. The Court has an important role to play as principal judicial organ of the United Nations; it is the "guardian of international law". In this regard, Laurence Boisson de Chazournes notes:

"The course of the history of the International Court of Justice is marked by cases which have enabled it to contribute to the development and consolidation of the international legal order and to establish a solid basis for its contribution to the maintenance of international peace and security." FN40

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FN40"Les ordonnances en indication de mesures conservatoires dans l'affaire relative à ('Application c/e la convention pour la prévention et la répression du crime de génocide (Bosnie-Herzègovinie c. Yougoslavie)", Annuaire français de droit international, 1993, p. 514; see also pp. 534-536.
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70. Thus there was nothing to prevent the Court from indicating provisional measures once the relevant conditions were satisfied. The Court's action is complementary to that of the Security Council in regard to the maintenance of international peace and security: "The Council has func-tions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same events." {Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, pp. 434-435; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Provisional Measures, Order of 8 April 1993, I.C.J. Reports 1993, p. 19, para. 33; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. 126, para. 36.) [p 291]

71. The indication of provisional measures is subject to a number of conditions: urgency, preservation of the rights of the parties, the need not to aggravate the dispute and prima facie establishment of the Court's jurisdiction.

72. In the present case the request by the Democratic Republic of the Congo comprises 19 items (see paragraph 13 of the Order). The contrast is striking between the scope of the measures sought and the narrowness of the Court's bases of jurisdiction. Thus the measures requested cover almost every aspect of the armed conflict in the Democratic Republic of the Congo: withdrawal of foreign troops, cessation of looting of natural resources and other assets, respect for human rights and international humanitarian law, restoration of the sovereignty and territorial integrity of the Democratic Republic of the Congo, etc. FN41

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FN41See the various Security Council resolutions, inter alia: 1234 (1999), 1304 (2000), 1341 (2001), 1355 (2001), 1376 (2001), 1399 (2002), 1417 (2002).
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1. Urgency

73. When seising the Court under Article 41 of the Statute and Article 73 of the Rules, the applicant must demonstrate the urgency of the request for the indication of provisional measures, since its consideration takes priority over all other cases. The Court is under an obligation to decide on such a request as a matter of urgency FN42.

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FN42 See Article 74, paragraphs 1 and 2, of the Rules of Court. In the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), the Court stated that "such measures are only justified if there is urgency" (I.C J. Reports 2000, p. 127, para. 39); see also LaGrand (Germany v. United Stales of
America). Provisional Measures, Order of'3 March 1999, I.C.J. Reports 1999 (I), p. 15, para. 22.
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74. The urgency of the request is a fundamental requirement in the case of provisional measures FN43. In the present case the Democratic Republic of the Congo seised the Court on 28 May 2002, as a result, in particular, of the events which occurred in Kisangani on 14 and 15 May 2002:

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FN43 See Pierre-Marie Martin, "Renouveau des mesures conservatoires: les ordonnances récentes de la Cour internationale de Justice", Journal du droit international, Vol. 102,
1975, p. 51; Joe Verhoeven, Droit international public, Law Faculty of the Université catholique de Louvain, 2000, p. 767.
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"From 14 to 15 May 2002 in Kisangani, massive grave and flagrant violations of human rights were committed by Rwandan troops and by Congolese and Rwandan troops of the RCD-Goma in reprisal for the legitimate claims of the civil population and of a small number of uniformed individuals, who were simply calling for the departure of Rwandan troops from Congolese territory. Numerous independent sources, including MONUC and RHODECIC, report over 50 persons killed and some ten wounded. Other sources indicate that on that day several policemen and soldiers were killed in cold [p 292] blood, on the pretext that they had been in communication with the rebels on account of their having belonged to the former Zairian Armed Forces (FAZ)." FN44

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FN44 Request for the indication of provisional measures, 28 May 2002, pp. 16-17.
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75. Over and above the events in Kisangani, the Democratic Republic of the Congo in fact cited the entirety of its dispute with Rwanda since the start of the war. Hence the difficulty of identifying the urgency of certain measures requested of the Court.

2. Preservation of the Parties' Rights

76. Provisional measures do not prejudge the parties' rights on the merits and must have as their purpose the preservation of those rights, in order to prevent any irreparable harm. The Court has had occasion to recall this principle in a number of cases:

"Whereas the power to indicate provisional measures which is conferred on the Court by Article 41 of the Statute presupposes the possibility of irreparable damage being caused to the rights at issue in judicial proceedings and has therefore as its purpose to safeguard the rights of each Party pending the delivery of the Court's decision on the merits." (Frontier Dispute (Burkina FasolRepublic of Mali), Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 8, para. 13; see also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. 127, para. 39.)

77. Clearly, the Democratic Republic of the Congo was seeking to limit the irreparable, there having already been fatalities; for Rwanda, the preservation of its rights required avoiding being imputed ab initio with alleged massive serious violations of human rights. In its oral pleadings, the Respondent placed the emphasis rather on issues of the Court's jurisdiction (see CR 2002/37).

3. Non-aggravation of the Dispute

78. Whether or not the parties so request, the Court is entitled to indicate provisional measures in order to avoid any aggravation of the dispute. Any extension of the dispute may set at naught the Court's efforts to contribute to international peace and security by settling international disputes by peaceful means, by applying the law. The Court thus has a discretionary power to indicate provisional measures with a view to restricting the scope of a dispute:

"Considering that, independently of the requests for the indication [p 293] of provisional measures submitted by the Parties to preserve specific rights, the Court possesses by virtue of Article 41 of the Statute the power to indicate provisional measures with a view to preventing the aggravation or extension of the dispute whenever it considers that circumstances so require." (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996 (I), pp. 22-23, para. 41.)

79. The Court is bound to indicate provisional measures, or in any event ought to do so, whenever there is a war situation or where there are serious violations of human rights or of international humanitarian law. Thus the Court has indicated measures having a military dimension in a number of cases FN45, refusing to grant them where they were not appropriate FN46.

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FN45 See Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Provisional Measures, Order of 10 May 1984, I.C.J. Reports
1984, p. 169; Frontier Dispute (Burkina Faso/Republic of Mali), Provisional Measures, Order of 10 January 1986, I.C.J. Reports 1986, p. 554; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), Provisional Measures, Order of 8 April 1993,
I.C.J. Reports 1993, p. 3; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Provisional Measures, Order of 15 March 1996, I.C.J. Reports 1996, p. 13; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). Provisional Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. 111.
FN46 See Ranjeva. op. eit., p. 459.
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4. The Court's Prima Facie Jurisdiction

80. Establishment of the Court's jurisdiction, even prima facie, lies at the heart of the Congo's case. It is the essential, primary condition, from which all the others flow. The Court refused to indicate provisional measures because, following a consideration of the grounds of law presented by the Applicant, it was not apparent that its jurisdiction was established. This approach is consistent with its established case law:

"Whereas, on a request for the indication of provisional measures the Court need not, before deciding whether or not to indicate them, finally satisfy itself that it has jurisdiction on the merits of the case, but whereas it may not indicate them unless the provisions invoked by the Applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be founded." (LaGrand (Germany v. United States of America), Provisional Measures, Order of 3 March 1999, I.C.J. Reports 1999 (I), p. 13, para. 13.) FN47

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FN47 See also Legality of Use of Force (Yugoslavia v. Canada), Provisional Measures,
Order of 2 June 1999. I.C.J. Reports 1999 (I), p. 266, para. 21.
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[p 294]
81. As I have already stated, the contrast is striking between the provisional measures sought by the Applicant and the grounds of law invoked to found the Court's jurisdiction. I am of the opinion that certain provisional measures could have been indicated, having regard to the nature of the dispute, even if the basis of jurisdiction was a narrow one.

(Signed) Jean-Pierrre Mavungu.

 

 
     

 

 

 

 

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