| |
THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 28 May 2002 the Government of the Democratic Republic of the [p 12]
Congo (hereinafter "the DRC") filed in the Registry of the Court an
Application instituting proceedings against the Republic of Rwanda
(hereinafter "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"; in that Application the
DRC stated that "[the] flagrant and serious violations [of human rights and
of international humanitarian law]" of which it complained "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 Charters of the United
Nations and the Organization of African Unity".
In order to found the jurisdiction of the Court, the DRC, referring to
Article 36, paragraph 1, of the Statute, invoked in its Application: Article
22 of the International Convention on the Elimination of All Forms of Racial
Discrimination of 21 December 1965 (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") and
Article 9 of the Convention on the Privileges and Immunities of the
Specialized Agencies of 21 November 1947 (hereinafter "the Convention on
Privileges and Immunities"); 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").
The DRC further contended in its Application that Article 66 of the Vienna
Convention on the Law of Treaties of 23 May 1969 established the
jurisdiction of the Court to settle disputes arising from the violation of
peremptory norms (jus cogens) in the area of human rights, as those norms
were reflected in a number of international instruments.
2. On 28 May 2002, immediately after filing its Application, the DRC also
submitted a request for the indication of provisional measures pursuant to
Article 41 of the Statute of the Court and Articles 73 and 74 of its Rules.
3. In accordance with Article 38, paragraph 4, and Article 73, paragraph 2,
of the Rules, on 28 May 2002 the Registrar transmitted certified copies of
the Application and of the request to the Rwandan Government; in accordance
with Article 40, paragraph 3, of the Statute, all States entitled to appear
before the Court were notified of the Application.
4. Since the Court included upon the Bench no judge of the nationality of
the Parties, each of them availed itself of the right conferred upon it by
Article 31 of the Statute to choose a judge ad hoc to sit in the case. The
DRC chose [p 13] Mr. Jean-Pierre Mavungu, and Rwanda Mr. Christopher John
Robert Dugard.
5. At the hearings on the request for the indication of provisional measures
submitted by the DRC, held on 13 and 14 June 2002, Rwanda asked the Court to
remove the case from the List for manifest lack of jurisdiction.
By Order of 10 July 2002 the Court, after hearing the Parties, found that it
lacked prima facie jurisdiction to indicate the provisional measures
requested by the DRC. The Court also rejected Rwanda's request that the case
be removed from the List.
6. At a meeting held on 4 September 2002 by the President of the Court with
the Agents of the Parties pursuant to Article 31 of the Rules of Court,
Rwanda proposed that the procedure provided for in Article 79, paragraphs 2
and 3, of the Rules of Court be followed, and that the questions of
jurisdiction and admissibility in the case therefore be determined
separately before any proceedings on the merits; the DRC stated that it
would leave the decision in this regard to the Court. At the conclusion of
that meeting the Parties agreed that, in the event that this procedure was
followed, Rwanda would first present a Memorial dealing exclusively with
those questions, to which the DRC would reply in a Counter-Memorial confined
to the same questions.
By Order of 18 September 2002 the Court, taking account of the views of the
Parties regarding the procedure to be followed and the time-limits to be
fixed, decided that the written pleadings would first be addressed to the
questions of the jurisdiction of the Court to entertain the Application and
of its admissibility and fixed 20 January 2003 and 20 May 2003 as respective
time-limits for the filing of a Memorial by Rwanda and of a Counter-Memorial
by the DRC. The Memorial and Counter-Memorial were filed within the
time-limits so prescribed.
7. In accordance with instructions given by the Court under Article 43 of
the Rules of Court, the Registry sent the notification provided for in
Article 63, paragraph 1, of the Statute to all the States parties to the
Convention on Discrimination Against Women, the WHO Constitution, the Unesco
Constitution, the Montreal Convention and the Vienna Convention on the Law
of Treaties.
In accordance likewise with instructions given by the Court under Article
69, paragraph 3, of the Rules of Court, the Registry sent the notifications
provided for in Article 34, paragraph 3, of the Statute and communicated
copies of the written pleadings to the Secretary-General of the United
Nations in respect of the Convention on Discrimination Against Women; to the
Director-General of the WHO in respect of the WHO Constitution; to the
Director-General of Unesco in respect of the Unesco Constitution and to the
Secretary General of the International Civil Aviation Organization in
respect of the Montreal Convention. The organizations concerned were also
asked whether they intended to submit observations in writing within the
meaning of Article 69, paragraph 3, of the Rules of Court. None of them
expressed the wish to do so.
8. Pursuant to Article 53, paragraph 2, of its Rules, the Court, after
ascertaining the views of the Parties, decided that copies of the pleadings
and documents annexed would be made accessible to the public on the opening
of the oral proceedings. [p 14]
9. Public hearings were held between 4 and 8 July 2005, at which the Court
heard the oral arguments and replies of:
For Rwanda: Mr. Martin Ngoga,
Mr. Christopher Greenwood,
Ms Jessica Wells.
For the DRC: H.E. Mr. Jacques Masangu-a-Mwanza,
Mr. Akele Adau,
Mr. Lwamba Katansi,
Mr. Ntumba Luaba Lumu,
Mr. Mukadi Bonyi.
*
10. On the instructions of the Court, on 11 July 2005 the Registrar wrote to
the Parties asking them to send him copies of a certain number of documents
referred to by them at the hearings. Rwanda furnished the Court with copies
of those documents under cover of a letter dated 27 July 2005 received in
the Registry on 28 July 2005, to which were appended two notes from,
respectively, Rwanda's Minister of Justice and the President of its Chamber
of Deputies. The DRC supplied the Court with copies of the requested
documents under cover of two letters dated 29 July and 10 August 2005 and
received in the Registry on 1 and 12 August respectively.
*
11. In its Application the DRC made the following requests:
"Accordingly, while reserving the right to supplement and amplify this claim
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 October 1998 in
Kindu, thereby causing the death of 40 civilians, Rwanda also violated the
United Nations Charter, the Convention on International Civil Aviation of 7
December 1944 signed at Chicago, the Hague Conven-[p 15]tion 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 killing, massacring, raping, throat-cutting, 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 Universal 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 responsible for 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 and other forces from Congolese territory;
(3) the Democratic Republic of the Congo is entitled to compensation from
Rwanda for all acts of looting, destruction, massacre, removal of property
and 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 injury at a later date, in addition to restitution of
the property taken.
It also reserves the right in the course of the proceedings to claim other
injury suffered by it and its people."
12. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Rwandan Government,
in the Memorial:
"Accordingly, Rwanda requests the Court to adjudge and declare that:
The Court lacks jurisdiction to entertain the claims brought by the
Democratic Republic of the Congo. In addition, the claims brought by the
Democratic Republic of the Congo are inadmissible."
On behalf of the Government of the Democratic Republic of the Congo,
in the Counter-Memorial:
"For these reasons, may it please the Court,
To find that the objections to jurisdiction raised by Rwanda are unfounded;
To find that the objections to admissibility raised by Rwanda are unfounded;
And, consequently, to find that the Court has jurisdiction to entertain the
case on the merits and that the Application of the Democratic Republic of
the Congo is admissible as submitted;
To decide to proceed with the case." [p 16]
13. At the hearings, the following submissions were presented by the
Parties:
On behalf of the Rwandan Government,
at the hearing of 6 July 2005:
"For the reasons given in our written preliminary objection and at the oral
hearings, the Republic of Rwanda requests the Court to adjudge and declare
that:
1. it lacks jurisdiction over the claims brought against the Republic of
Rwanda by the Democratic Republic of the Congo; and
2. in the alternative, that the claims brought against the Republic of
Rwanda by the Democratic Republic of the Congo are inadmissible."
On behalf of the Congolese Government,
at the hearing of 8 July 2005:
"May it please the Court,
1. to find that the objections to jurisdiction and admissibility raised by
Rwanda are unfounded;
2. consequently, to find that the Court has jurisdiction to entertain the
case on the merits and that the Application of the Democratic Republic of
the Congo is admissible as submitted;
3. to decide to proceed with the case on the merits."
***
14. The Court notes first of all that at the present stage of the
proceedings it cannot consider any matter relating to the merits of this
dispute between the DRC and Rwanda. In accordance with the decision taken in
its Order of 18 September 2002 (see paragraph 6 above), the Court is
required to address only the questions of whether it is competent to hear
the dispute and whether the DRC's Application is admissible.
***
15. In order to found the jurisdiction of the Court in this case, the DRC
relies in its Application on a certain number of compromissory clauses in
international conventions, namely: Article 22 of the Convention on Racial
Discrimination; Article 29, paragraph 1, of the Convention on Discrimination
Against Women; Article IX of the Genocide Convention; Article 75 of the WHO
Constitution; Article XIV, paragraph 2, of the Unesco Constitution and
Article 9 of the Convention on Privileges and Immunities; Article 30,
paragraph 1, of the Convention against Torture; and Article 14, paragraph 1,
of the Montreal Convention. It further contends that Article 66 of the
Vienna Convention on the Law of Treaties establishes the jurisdiction of the
Court to settle disputes arising from the violation of peremptory norms (jus
cogens) in the area of [p 17] human rights, as those norms are reflected in
a number of international instruments (see paragraph 1 above).
For its part Rwanda contends that none of these instruments cited by the DRC
"or rules of customary international law can found the jurisdiction of the
Court in the present case". In the alternative, Rwanda argues that, even if
one or more of the compromissory clauses invoked by the DRC were to be found
by the Court to be titles giving it jurisdiction to entertain the
Application, the latter would be "nevertheless inadmissible".
*
16. The Court will begin by recalling that, in its Order of 10 July 2002
(I.C.J. Reports 2002, p. 242, para. 61), it noted Rwanda's statement that it
"is not, and never has been, party to the 1984 Convention against Torture",
and found that such was indeed the case. In its Memorial on jurisdiction and
admissibility (hereinafter "Memorial") Rwanda maintained its contention that
it was not a party to this Convention and that, accordingly, that Convention
manifestly could not provide a basis for the jurisdiction of the Court in
these proceedings. The DRC did not raise any argument in response to this
contention by Rwanda, either in its Counter-Memorial on jurisdiction and
admissibility (hereinafter "Counter-Memorial") or at the hearings. The Court
accordingly concludes that the DRC cannot rely upon the Convention against
Torture as a basis of jurisdiction in this case.
17. The Court further recalls that in the above-mentioned Order (ibid., p.
243, para. 62) it also stated that, in the final form of its argument, the
DRC did not appear to found the jurisdiction of the Court on the Convention
on Privileges and Immunities, and that the Court was accordingly not
required to take that instrument into consideration in the context of the
request for the indication of provisional measures. Since the DRC has also
not sought to invoke that instrument in the present phase of the
proceedings, the Court will not take it into consideration in the present
Judgment.
**
18. The Court notes moreover that, both in its Counter-Memorial and at the
hearings, the DRC began by seeking to found the jurisdiction of the Court on
two additional bases: respectively, the doctrine of forum prorogatum and the
Court's Order of 10 July 2002 on the DRC's request for the indication of
provisional measures. The Court will first examine these two bases of
jurisdiction relied on by the DRC before then proceeding to consider the
compromissory clauses which the DRC invokes.[p 18]
In accordance with its established jurisprudence, the Court will examine the
issue of the admissibility of the DRC's Application only should it find that
it has jurisdiction to entertain that Application.
***
19. The DRC argues, first, that the willingness of a State to submit a
dispute to the Court may be apparent not only from an express declaration
but also from any conclusive act, in particular from the conduct of the
respondent State subsequent to seisin of the Court. In particular it
contends that "the Respondent's agreement to plead implies that it accepts
the Court's jurisdiction". In this regard the DRC cites the fact that Rwanda
has "complied with all the procedural steps prescribed or requested by the
Court", that it has "fully and properly participated
in the different procedures in this case, without having itself represented
or failing to appear", and that "it has not refused to appear before the
Court or to make submissions".
20. For its part Rwanda contends that the DRC's argument is without
foundation, since in this case there has been no "voluntary and indisputable
acceptance of the Court's jurisdiction". Rwanda points out that it has, on
the contrary, consistently asserted that the Court has no jurisdiction and
that it has appeared solely for the purpose of challenging that
jurisdiction. Rwanda further observes that "if [the DRC's argument] is
right, then there is no way that a State can challenge the jurisdiction of
[the] Court without conceding that the Court has jurisdiction", and that
therefore "the only safe course . . . is for a respondent State not to
appear before the Court at all". It contends that this argument by the DRC
flies in the face of the Statute of the Court, its Rules and its
jurisprudence.
*
21. The Court recalls its jurisprudence, as well as that of its predecessor,
the Permanent Court of International Justice, regarding the forms which the
parties' expression of their consent to its jurisdiction may take. According
to that jurisprudence, "neither the Statute nor the Rules require that this
consent should be expressed in any particular form", and "there is nothing
to prevent the acceptance of jurisdiction . . . from being effected by two
separate and successive acts, instead of jointly and beforehand by a special
agreement" (Corfu Channel (United Kingdom v. Albania), Preliminary
Objection, Judgment, 1948, I.C.J. Reports 1947-1948, pp. 27-28; see also
Rights of Minorities in Upper Silesia (Minority Schools), Judgment No. 12,
1928, P.C.I.J., Series A, No. 15, p. 23). The attitude of the respondent
State must, however, be capable of being regarded as "an unequivocal
indication" of the desire of that State to accept the Court's jurisdiction
in a "voluntary and indisputable" manner [p 19] (Corfu Channel (United
Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports
1947-1948, pp. 27); 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 13 September 1993,
I.C.J. Reports 1993, p. 342, para. 34; see also Rights of Minorities in
Upper Silesia (Minority Schools), Judgment No. 12, 1928, P.C.I.J., Series A,
No. 15, p. 24).
22. In the present case the Court will confine itself to noting that Rwanda
has expressly and repeatedly objected to its jurisdiction at every stage of
the proceedings (see Armed Activities on the Territory of the Congo (New
Application: 2002)(Democratic Republic of the Congo v. Rwanda), Provisional
Measures, Order of 10 July 2002, I.C.J. Reports 2002, pp. 234, 238).
Rwanda's attitude therefore cannot be regarded as "an unequivocal
indication" of its desire to accept the jurisdiction of the Court in a
"voluntary and indisputable" manner. The fact, as the DRC has pointed out,
that Rwanda has "fully and properly participated in the different procedures
in this case, without having itself represented or failing to appear", and
that "it has not refused to appear before the Court or make submissions",
cannot be interpreted as consent to the Court's jurisdiction over the
merits, inasmuch as the very purpose of this participation was to challenge
that jurisdiction (Anglo-Iranian Oil Co. (United Kingdom v. Iran),
Preliminary Objection, Judgment, I.C.J. Reports 1952, pp. 113-114).
***
23. To found the jurisdiction of the Court in this case, the DRC also relies
on one of the Court's findings in its Order of 10 July 2002, whereby it
stated that, "in the absence of a manifest lack of jurisdiction, the Court
cannot grant Rwanda's request that the case be removed from the List". In
the DRC's view, this finding of an "absence of a manifest lack of
jurisdiction" could be interpreted as an acknowledgement by the Court that
it has jurisdiction. Thus the DRC has expressed its belief that, "in
rejecting Rwanda's request for the removal from the List of the application
on the merits, the Court could only have intended that crimes such as those
committed by the Respondent must not remain unpunished".
24. On this point, for its part Rwanda recalls that in this same Order the
Court clearly stated that the findings reached by it at that stage in the
proceedings in no way prejudged the question of its jurisdiction to deal
with the merits of the case. Rwanda observes in this regard that a finding
by the Court in an Order of this kind that there is no manifest lack of
jurisdiction, coupled, moreover, with a finding that there is no prima facie
basis for jurisdiction, cannot afford any support to the argument of a State
seeking to establish the Court's jurisdiction. Rwanda points out that "the
Court does not possess jurisdiction simply because there is an [p 20]
absence of a manifest lack of jurisdiction; it possesses jurisdiction only
if there is a positive presence of jurisdiction".
*
25. The Court observes that, given the urgency which, ex hypothesi,
characterizes the consideration of requests for the indication of
provisional measures, it does not normally at that stage take a definitive
decision on its jurisdiction. It does so only if it is apparent from the
outset that there is no basis on which jurisdiction could lie, and that it
therefore cannot entertain the case. Where the Court finds such a manifest
lack of jurisdiction, considerations of the sound administration of justice
dictate that it remove the case in question from the List (Legality of Use
of Force (Yugoslavia v. Spain), Order of 2 June 1999, I.C.J. Reports 1999
(II), pp. 773-774, para. 40; Legality of Use of Force (Yugoslavia v. United
States of America), Order of 2 June 1999, I.C.J. Reports 1999 (II), pp.
925-926, para. 34). Where, on the other hand, the Court is unable to
conclude that it manifestly lacks jurisdiction, it retains the case on the
List and reserves the right subsequently to consider further the question of
jurisdiction, making it clear, as it did in its Order of 10 July 2002, that
"the findings reached by [it] in the present proceedings in no way prejudge
the question of [its] jurisdiction . . . to deal with the merits of the case
or any questions relating to the admissibility of the Application, or
relating to the merits themselves" (case concerning Armed Activities on the
Territory of the Congo (New Application: 2002)(Democratic Republic of the
Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J.
Reports 2002, p. 249, para. 90); see also Anglo-Iranian Oil Co. (United
Kingdom v. Iran), Interim Protection, Order of 5 July 1951, I.C.J. Reports
1951, p. 114; Fisheries Jurisdiction (Federal Republic of Germany v.
Iceland), Interim Protection, Order of 17 August 1972, I.C.J. Reports 1972,
p. 34, para. 21; 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. 186, para. 40; Arbitral Award
of 31 July 1989 (Guinea-Bissau v. Senegal), Provisional Measures, Order of 2
March 1990, I.C.J. Reports 1990, p. 69; Legality of Use of Force (Serbia and
Montenegro v. Belgium), Provisional Measures, Order of 2 June 1999, pp.
139-140, para. 46).
The fact that in its Order of 10 July 2002 the Court did not conclude that
it manifestly lacked jurisdiction cannot therefore amount to an
acknowledgement that it has jurisdiction. On the contrary, from the outset
the Court had serious doubts regarding its jurisdiction to entertain the
DRC's Application, for in that same Order it justified its refusal to
indicate provisional measures by the lack of prima facie jurisdiction. In
declining Rwanda's request to remove the case from the List, the Court
simply reserved the right fully to examine further the issue of its
jurisdic-[p 21]tion at a later stage. It is precisely such a further
examination which is the object of the present phase of the proceedings.
***
26. Having concluded that the two additional bases of jurisdiction invoked
by the DRC cannot be accepted, the Court must now consider the compromissory
clauses referred to in the Application, with the exception of those
contained in the Convention against Torture and the Convention on Privileges
and Immunities (see paragraphs 16 and 17 above).
27. The Court will examine in the following order the compromissory clauses
invoked by the DRC: Article IX of the Genocide Convention; Article 22 of the
Convention on Racial Discrimination; Article 29, paragraph 1, of the
Convention on Discrimination Against Women; Article 75 of the WHO
Constitution; Article XIV, paragraph 2, of the Unesco Constitution; Article
14, paragraph 1, of the Montreal Convention; Article 66 of the Vienna
Convention on the Law of Treaties.
***
28. In its Application the DRC contends that Rwanda has violated Articles II
and III of the Genocide Convention.
Article II of that Convention prohibits:
"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 harm to members of the group;
(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."
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."
In order to found the jurisdiction of the Court to entertain its claim, the
DRC invokes Article IX of the Convention, which reads as follows: [p 22]
"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."
29. Rwanda argued in its Memorial that the jurisdiction of the Court under
the Genocide Convention was excluded by its reservation to the entirety of
Article IX. In its Counter-Memorial the DRC disputed the validity of that
reservation. At the hearings it further contended that Rwanda had withdrawn
its reservation; to that end it cited a Rwandan decret-loi of 15 February
1995 and a statement of 17 March 2005 by Rwanda's Minister of Justice at the
Sixty-first Session of the United Nations Commission on Human Rights. Rwanda
has denied the DRC's contention that it has withdrawn its reservation to
Article IX of the Genocide Convention. The Court will therefore begin by
examining whether Rwanda has in fact withdrawn its reservation. Only if it
finds that Rwanda has maintained its reservation will the Court need to
address the DRC's arguments concerning the reservation's validity.
**
30. As just stated, the DRC claimed at the hearings that Rwanda had
withdrawn its reservation to Article IX of the Genocide Convention. Thus the
DRC argued that, in Article 15 of the Protocol of Agreement on Miscellaneous
Issues and Final Provisions signed between the Government of Rwanda and the
Rwandan Patriotic Front at Arusha on 3 August 1993, Rwanda undertook to
withdraw all reservations made by it when it became party to treaty
instruments "on human rights". The DRC contends that Rwanda implemented that
undertaking by adopting decret-loi No. 014/01 of 15 February 1995, whereby
the Broad-Based Transitional Government allegedly withdrew all reservations
made by Rwanda at the accession, approval and ratification of international
instruments relating to human rights.
31. In this regard the DRC observed that the Arusha Peace Agreement
concluded on 4 August 1993 between the Government of Rwanda and the Rwandan
Patriotic Front, of which the above-mentioned Protocol forms an integral
part, was not a mere internal political agreement, as Rwanda contended, but
a text which under Rwandan law, namely Article 1 of the Fundamental Law of
the Rwandese Republic adopted by the Transitional National Assembly on 26
May 1995, formed part of the "constitutional ensemble". The DRC argued,
furthermore, that Rwanda's contention that decret-loi No. 014/01 had fallen
into desuetude or lapsed because it was not confirmed by the new parliament
was unfounded. According to the DRC, "if the Rwandan parliament did not
confirm the Order in Council, without, however leaving any trace of this [p
23] volte-face, that is neither more nor less than . . . a 'wrongful act';
and it was a universal principle of law that 'no one may profit by his own
wrongdoing'". The DRC maintained moreover that the decret-loi was not
subject to the procedure of approval by parliament, since, under Congolese
and Rwandan law, both of which had been influenced by Belgian law, a
decret-loi was a measure enacted by the executive branch in cases of
emergency when parliament is in recess; if these conditions were satisfied,
parliamentary approval was not necessary, save in the case of a
constitutional decret-loi, which was not the case for decret-loi No. 14/01.
32. The DRC further argued that the fact that withdrawal of the reservation
was not notified to the United Nations Secretary-General could not be relied
on against third States, since Rwanda expressed its intention to withdraw
the reservation in a legislative text, namely the decret-loi of 15 February
1995. According to the DRC, the failure to notify that decret-loi to the
United Nations Secretary-General has no relevance in this case, since it is
not the act of notification to an international organization which gives
validity "to a domestic administrative enactment, but rather its
promulgation and/or publication by the competent national authority".
33. Finally, the DRC contended that Rwanda's withdrawal of its reservation
to Article IX of the Genocide Convention was corroborated by a statement by
the latter's Minister of Justice on 17 March 2005 at the Sixty-first Session
of the United Nations Commission on Human Rights. The Minister there
announced that "the few [human rights] instruments not yet ratified" at that
date by Rwanda, as well as reservations "not yet withdrawn", would "shortly
be ratified . . . [or] withdrawn". In the DRC's view, this statement meant
that there were reservations, including that made by Rwanda in respect of
Article IX of the Genocide Convention, which had already been withdrawn by
that State in 1995. The DRC added that the statement by the Rwandan Minister
of Justice "gave material form at international level to the . . . decision
taken by the Rwandan Government [in February 1995] to withdraw all
reservations to human rights treaties", and that this statement, "made
within one of the most representative forums of the international community,
the United Nations Commission on Human Rights, . . . [did] indeed bind the
Rwandan State".
34. For its part, Rwanda contended at the hearings that it had never taken
any measure to withdraw its reservation to Article IX of the Genocide
Convention.
As regards the Arusha Peace Agreement of 4 August 1993, Rwanda considered
that this was not an international instrument but a series of agreements
concluded between the Government of Rwanda and the Rwandan Patriotic Front,
that is to say an internal agreement which did not create any obligation on
Rwanda's part to another State or to the international community as a whole.
Rwanda further observed that Article 15 of the Protocol of Agreement [p 24]
on Miscellaneous Issues and Final Provisions of 3 August 1993 made no
express reference to the Genocide Convention and did not specify whether the
reservations referred to comprised both those concerning procedural
provisions, including provisions relating to the jurisdiction of the Court,
and those concerning substantive provisions.
35. In regard to decret-loi No. 014/01 of 15 February 1995, Rwanda pointed
out that this text, like Article 15 of the Protocol of Agreement, was drawn
in very general terms, since it "authorized the withdrawal of all
reservations entered into by Rwanda to all international agreements". Rwanda
further stated that, "under the constitutional instruments then in force in
Rwanda, a decree of this kind had to be approved by Parliament -- at that
time called the Transitional National Assembly -- at its session immediately
following the adoption of the decree". Rwanda points out that, at the
session immediately following the adoption of decret-loi No. 014/01, which
took place between 12 April and 11 July 1995, the Order was not approved,
and therefore lapsed.
36. Rwanda further observed that it had never notified withdrawal of its
reservation to Article IX of the Genocide Convention to the United Nations
Secretary-General, or taken any measure to withdraw it, and that only such
formal action on the international plane could constitute the definitive
position of a State in regard to its treaty obligations.
37. Regarding the statement made on 17 March 2005 at the Sixty-first Session
of the United Nations Commission on Human Rights by its Minister of Justice,
Rwanda contends that in her speech the Minister simply restated Rwanda's
intention to lift "unspecified" reservations to "unspecified" human rights
treaties "at some time in the future". Rwanda notes that the statement was
inconsistent with the argument of the DRC that it had already withdrawn
those same reservations in 1995. It further observes that the statement
could not bind it or oblige it to withdraw "a particular reservation", since
it was made by a Minister of Justice and not by a Foreign Minister or Head
of Government, "with automatic authority to bind the State in matters of
international relations". Finally, Rwanda asserts that a statement given in
a forum such as the United Nations Commission on Human Rights, almost three
years after the institution of the present proceedings before the Court,
cannot have any effect on the issue of jurisdiction, which "has to be judged
by reference to the situation as it existed at the date the Application was
filed".
*
38. The Court notes that both the DRC and Rwanda are parties to the Genocide
Convention, the DRC having acceded on 31 May 1962 and [p 25] Rwanda on 16
April 1975. The Court observes, however, that Rwanda's instrument of
accession to the Convention, as deposited with the Secretary-General of the
United Nations, contains a reservation worded as follows: "The Rwandese
Republic does not consider itself as bound by Article IX of the Convention."
39. The Court also notes that the Parties take opposing views, first on
whether, in adopting decret-loi No. 014/01 of 15 February 1995, Rwanda
effectively withdrew its reservation to Article IX of the Genocide
Convention and, secondly, on the question of the legal effect of the
statement by Rwanda's Minister of Justice at the Sixty-first Session of the
United Nations Commission on Human Rights. The Court will accordingly
address in turn each of these two questions.
40. In regard to the first question, the Court notes that an instrument
entitled "Decret-loi No. 014/01 of 15 February 1995 withdrawing all
reservations entered by the Rwandese Republic at the accession, approval and
ratification of international instruments" was adopted on 15 February 1995
by the President of the Rwandese Republic following an Opinion of the
Council of Ministers and was countersigned by the Prime Minister and
Minister of Justice of the Rwandese Republic. Article 1 of this decret-loi,
which contains three articles, provides that "all reservations entered by
the Rwandese Republic in respect of the accession, approval and ratification
of international instruments are withdrawn"; Article 2 states that "all
prior provisions contrary to the present decret-loi are abrogated"; while
Article 3 provides that "this decret-loi shall enter into force on the day
of its publication in the Official Journal of the Rwandese Republic". The
decret-loi was published in the Official Journal of the Rwandese Republic,
on a date of which the Court has not been apprised, and entered into force.
41. The validity of this decret-loi under Rwandan domestic law has been
denied by Rwanda. However, in the Court's view the question of the validity
and effect of the decret-loi within the domestic legal order of Rwanda is
different from that of its effect within the international legal order. Thus
a clear distinction has to be drawn between a decision to withdraw a
reservation to a treaty taken within a State's domestic legal order and the
implementation of that decision by the competent national authorities within
the international legal order, which can be effected only by notification of
withdrawal of the reservation to the other States parties to the treaty in
question. It is a rule of international law, deriving from the principle of
legal security and well established in practice, that, subject to agreement
to the contrary, the withdrawal by a contracting State of a reservation to a
multilateral treaty takes effect in relation to the other contracting States
only when they have received notification thereof. This rule is expressed in
Article 22, paragraph 3 (a), of the Vienna Convention on the Law of
Treaties, which provides as follows: "3. Unless the Treaty otherwise
provides, or it is otherwise agreed: (a) the withdrawal of a reservation
becomes operative in relation to another Contracting State only when [p 26]
notice of it has been received by that State." Article 23, paragraph 4, of
that same Convention further provides that "the withdrawal of a reservation
or of an objection to a reservation must be formulated in writing".
42. The Court observes that in this case it has not been shown that Rwanda
notified the withdrawal of its reservations to the other States parties to
the "international instruments" referred to in Article 1 of decret-loi No.
014/01 of 15 February 1995, and in particular to the States parties to the
Genocide Convention. Nor has it been shown that there was any agreement
whereby such withdrawal could have become operative without notification. In
the Court's view, the adoption of that decret-loi and its publication in the
Official Journal of the Rwandese Republic cannot in themselves amount to
such notification. In order to have effect in international law, the
withdrawal would have had to be the subject of a notice received at the
international level.
43. The Court notes that, as regards the Genocide Convention, the Government
of Rwanda has taken no action at international level on the basis of the
decret-loi. It observes that this Convention is a multilateral treaty whose
depositary is the Secretary-General of the United Nations, and it considers
that it was normally through the latter that Rwanda should have notified
withdrawal of its reservation. Thus the Court notes that, although the
Convention does not deal with the question of reservations, Article XVII
thereof confers particular responsibilities on the United Nations
Secretary-General in respect of notifications to States parties to the
Convention or entitled to become parties; it is thus in principle through
the medium of the Secretary-General that such States must be informed both
of the making of a reservation to the Convention and of its withdrawal.
Rwanda notified its reservation to Article IX of the Genocide Convention to
the Secretary-General. However, the Court does not have any evidence that
Rwanda notified the Secretary-General of the withdrawal of this reservation.
44. In light of the foregoing, the Court finds that the adoption and
publication of decret-loi No. 014/01 of 15 February 1995 by Rwanda did not,
as a matter of international law, effect a withdrawal by that State of its
reservation to Article IX of the Genocide Convention.
*
45. The Court will now turn to the second question, that of the legal effect
of the statement made on 17 March 2005 by Ms Mukabagwiza, Minister of
Justice of Rwanda, at the Sixty-first Session of the United Nations
Commission on Human Rights. At the hearings the DRC cited this statement and
contended that it could be interpreted as corroborating Rwanda's withdrawal
of its reservation to Article IX of the Genocide Convention, or as
constituting a unilateral commitment having legal effects in regard to the
withdrawal of that reservation. In her statement Ms Mukabagwiza said inter
alia the following: [p 27]
"Rwanda is one of the countries that has ratified the greatest number of
international human rights instruments. In 2004 alone, our Government
ratified ten of them, including those concerning the rights of women, the
prevention and repression of corruption, the prohibition of weapons of mass
destruction, and the environment. The few instruments not yet ratified will
shortly be ratified and past reservations not yet withdrawn will shortly be
withdrawn."
46. The Court will begin by examining Rwanda's argument that it cannot be
legally bound by the statement in question inasmuch as a statement made not
by a Foreign Minister or a Head of Government "with automatic authority to
bind the State in matters of international relations, but by a Minister of
Justice, cannot bind the State to lift a particular reservation". In this
connection, the Court observes that, in accordance with its consistent
jurisprudence (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports
1974, pp. 269-270, paras. 49-51; Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina
v. Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II),
p. 622, para. 44; Arrest Warrant of 11 April 2000 (Democratic Republic of
the Congo v. Belgium), Judgment, I.C.J. Reports 2002, pp. 21-22, para. 53;
see also Legal Status of Eastern Greenland (Denmark v Norway), Judgment,
1933, P.C.I.J., Series A/B, No. 53, p. 71), it is a well-established rule of
international law that the Head of State, the Head of Government and the
Minister for Foreign Affairs are deemed to represent the State merely by
virtue of exercising their functions, including for the performance, on
behalf of the said State, of unilateral acts having the force of
international commitments. The Court moreover recalls that, in the matter of
the conclusion of treaties, this rule of customary law finds expression in
Article 7, paragraph 2, of the Vienna Convention on the Law of Treaties,
which provides that
"in virtue of their functions and without having to produce full powers, the
following are considered as representing their State: (a) Heads of State,
Heads of Government and Ministers for Foreign Affairs, for the purpose of
performing all acts relating to the conclusion of a treaty".
47. The Court notes, however, that with increasing frequency in modern
international relations other persons representing a State in specific
fields may be authorized by that State to bind it by their statements in
respect of matters falling within their purview. This may be true, for
example, of holders of technical ministerial portfolios exercising powers in
their field of competence in the area of foreign relations, and even of
certain officials.
48. In this case, the Court notes first that Ms Mukabagwiza spoke before the
United Nations Commission on Human Rights in her capacity [p 28] as Minister
of Justice of Rwanda and that she indicated inter alia that she was making
her statement "on behalf of the Rwandan people". The Court further notes
that the questions relating to the protection of human rights which were the
subject of that statement fall within the purview of a Minister of Justice.
It is the Court's view that the possibility cannot be ruled out in principle
that a Minister of Justice may, under certain circumstances, bind the State
he or she represents by his or her statements. The Court cannot therefore
accept Rwanda's argument that Ms Mukabagwiza could not, by her statement,
bind the Rwandan State internationally, merely because of the nature of the
functions that she exercised.
49. In order to determine the legal effect of that statement, the Court
must, however, examine its actual content as well as the circumstances in
which it was made (Nuclear Tests (Australia v. France), Judgment, I.C.J.
Reports 1974, p. 269, para. 51; Frontier Dispute (Burkina Faso/Republic of
Mali), Judgment, I.C.J. Reports 1986, pp. 573-574, paras. 39-40).
50. On the first point, the Court recalls that a statement of this kind can
create legal obligations only if it is made in clear and specific terms (see
Nuclear Tests (Australia v. France)(New Zealand v. France), I.C.J. Reports
1974, p. 267, para. 43; p. 269, para. 51; p. 472, para. 46; p. 474, para.
53). In this regard the Court observes that in her statement the Minister of
Justice of Rwanda indicated that "past reservations not yet withdrawn
[would] shortly be withdrawn", without referring explicitly to the
reservation made by Rwanda to Article IX of the Genocide Convention. The
statement merely raises in general terms the question of Rwandan
reservations. As such, the expression "past reservations not yet withdrawn"
refers without distinction to any reservation made by Rwanda to any
international treaty to which it is a party. Viewed in its context, this
expression may, it is true, be interpreted as referring solely to the
reservations made by Rwanda to "international human rights instruments", to
which reference is made in an earlier passage of the statement. In this
connection the Court notes, however, that the international instruments in
question must in the circumstances be understood in a broad sense, since,
according to the statement itself, they appear to encompass not only
instruments "concerning the rights of women" but also those concerning "the
prevention and repression of corruption, the prohibition of weapons of mass
destruction, and the environment". The Court is therefore bound to note the
indeterminate character of the international treaties referred to by the
Rwandan Minister of Justice in her statement.
51. The Court further observes that this statement merely indicates that
"past reservations not yet withdrawn will shortly be withdrawn", without
indicating any precise time-frame for such withdrawals.
52. It follows from the foregoing that the statement by the Rwandan [p 29]
Minister of Justice was not made in sufficiently specific terms in relation
to the particular question of the withdrawal of reservations. Given the
general nature of its wording, the statement cannot therefore be considered
as confirmation by Rwanda of a previous decision to withdraw its reservation
to Article IX of the Genocide Convention, or as any sort of unilateral
commitment on its part having legal effects in regard to such withdrawal; at
most, it can be interpreted as a declaration of intent, very general in
scope.
53. This conclusion is corroborated by an examination of the circumstances
in which the statement was made. Thus the Court notes that it was in the
context of a presentation of general policy on the promotion and protection
of human rights that the Minister of Justice of Rwanda made her statement
before the United Nations Commission on Human Rights.
54. Finally, the Court will address Rwanda's argument that the statement by
its Minister of Justice could not in any event have any implications for the
question of the Court's jurisdiction in this case, since it was made nearly
three years after the institution of the proceedings. In this connection,
the Court recalls that it has consistently held that, while its jurisdiction
must surely be assessed on the date of the filing of the act instituting
proceedings (Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections, Judgment, I.C.J. Reports 1996 (II), p. 613,
para. 26; Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo
v. Belgium), Judgment, I.C.J. Reports 2002, p. 12, para. 26), the Court
should not, however, penalize a defect in procedure which the Applicant
could easily remedy (Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia),
Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 613, para.
26). In the present case, if the Rwandan Minister's statement had somehow
entailed the withdrawal of Rwanda's reservation to Article IX of the
Genocide Convention in the course of the proceedings, the DRC could on its
own initiative have remedied the procedural defect in its original
Application by filing a new Application. This argument by Rwanda must
accordingly be rejected.
55. Having concluded that the DRC's contention that Rwanda has withdrawn its
reservation to Article IX of the Genocide Convention is unfounded, the Court
must now turn to the DRC's argument that this reservation is invalid.
**
56. In order to show that Rwanda's reservation is invalid, the DRC maintains
that the Genocide Convention has "the force of general law with respect to
all States" including Rwanda, inasmuch as it contains norms of jus cogens.
The DRC further stated at the hearings that, [p 30] "in keeping with the
spirit of Article 53 of the Vienna Convention", Rwanda's reservation to
Article IX of the Genocide Convention is null and void, because it seeks to
"prevent the . . . Court from fulfilling its noble mission of safeguarding
peremptory norms". Hence the fact that the DRC had not objected to that
reservation was of no consequence in the present proceedings.
57. The DRC also contends that Rwanda's reservation is incompatible with the
object and purpose of the Convention, since "its effect is to exclude Rwanda
from any mechanism for the monitoring and prosecution of genocide, whereas
the object and purpose of the Convention are precisely the elimination of
impunity for this serious violation of international law".
58. The DRC further argues that Rwanda's reservation is irrelevant in the
light of the evolution of the international law relating to genocide since
1948, which testifies to a "will" in the international community "to see
full effectiveness given to the . . . Convention" and which is reflected in
Article 120 of the Statute of the International Criminal Court, which
prohibits reservations, and in the recognition of the jus cogens nature of
the prohibition of genocide established by recent doctrine and
jurisprudence.
59. The DRC argues finally that, even if the Court were to reject its
argument based on the peremptory character of the norms contained in the
Genocide Convention, it cannot permit Rwanda to behave in a contradictory
fashion, that is to say, to call on the United Nations Security Council to
set up an international criminal tribunal to try the authors of the genocide
committed against the Rwandan people, while at the same time refusing to
allow those guilty of genocide to be tried when they are Rwandan nationals
or the victims of the genocide are not Rwandans.
60. With respect to its reservation to Article IX of the Genocide
Convention, Rwanda first observes that, although, as the DRC contends, the
norms codified in the substantive provisions of the Genocide Convention have
the status of jus cogens and create rights and obligations erga omnes, that
does not in itself suffice to "confer jurisdiction on the Court with respect
to a dispute concerning the application of those rights and obligations",
as, according to Rwanda, the Court had held in the case concerning East
Timor and in its Order of 10 July 2002 in the present case.
61. Secondly, Rwanda argues that its reservation to Article IX is not
incompatible with the object and purpose of the Genocide Convention,
inasmuch as the reservation relates not "to the substantive obligations of
the parties to the Convention but to a procedural provision". It claims in
this connection that 14 other States maintain similar reservations, and that
the majority of the 133 States parties to the Convention have raised no
objection to those reservations; the DRC itself did not object to Rwanda's
reservation prior to the hearings of June 2002. Rwanda further [p 31]
observes that, at the provisional measures stage in the cases concerning
Legality of Use of Force, the Court, in light of the reservations to Article
IX of the Genocide Convention by Spain and the United States -- which are in
similar terms to Rwanda's reservation -- decided to remove the cases
concerning those two States from its List, on the ground of its manifest
lack of jurisdiction; it necessarily followed that the Court considered that
there was no room for doubt as to the validity and effect of those
reservations. The fact that the Court, in its Order of 10 July 2002, did not
find that there was a manifest lack of jurisdiction did not in any way
support the DRC's argument, inasmuch as this conclusion was addressed to the
totality of the DRC's alleged bases of jurisdiction; it could be explained
only by reference to the other treaties invoked by the DRC, and not to the
Genocide Convention.
62. Rwanda observes thirdly that the fact that Article 120 of the Statute of
the International Criminal Court -- to which Rwanda is not a party and which
it has not even signed -- prohibits reservations has no bearing whatever on
this issue. Thus, according to Rwanda, the fact that the States which drew
up the Statute of the International Criminal Court "chose to prohibit all
reservations to that treaty in no way affects the right of States to make
reservations to other treaties which, like the Genocide Convention, do not
contain such a prohibition".
63. Rwanda contends fourthly that its request to the United Nations Security
Council to establish an international criminal tribunal to try individuals
accused of participation in the genocide perpetrated on Rwandan territory in
1994 is "an entirely separate matter from the jurisdiction of [the] Court to
hear disputes between States". There can be no question, according to
Rwanda, of "an otherwise valid reservation to Article IX being rendered
'inoperative', because the reserving State supported the creation by the
Security Council of a criminal tribunal with jurisdiction over individuals".
*
64. The Court will begin by reaffirming that "the principles underlying the
[Genocide] Convention are principles which are recognized by civilized
nations as binding on States, even without any conventional obligation" and
that a consequence of that conception 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). 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 [p 32] Crime of Genocide (Bosnia and Herzegovina v.
Yugoslavia), Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p.
616, para. 31).
The Court observes, however, as it has already had occasion to emphasize,
that "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), and that the mere fact
that rights and obligations erga omnes may be at issue in a dispute would
not give the Court jurisdiction to entertain that dispute.
The same applies to the relationship between peremptory norms of general
international law (jus cogens) and the establishment of the Court's
jurisdiction: the fact that a dispute relates to compliance with a norm
having such a character, which is assuredly the case with regard to the
prohibition of genocide, cannot of itself provide a basis for the
jurisdiction of the Court to entertain that dispute. Under the Court's
Statute that jurisdiction is always based on the consent of the parties.
65. As it recalled in its Order of 10 July 2002, the Court has jurisdiction
in respect of States only to the extent that they have consented thereto
(Armed Activities on the Territory of the Congo (New Application:
2002)(Democratic Republic of the Congo v. Rwanda), Provisional Measures,
Order of 10 July 2002, I.C.J. Reports 2002, p. 241, para. 57). 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 therein (ibid., p. 245,
para. 71).
66. The Court notes, however, that it has already found that reservations
are not prohibited under the Genocide Convention (Advisory Opinion in the
case concerning Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide, I.C.J. Reports 1951, pp. 22 et seq.).
This legal situation is not altered by the fact that the Statute of the
International Criminal Court, in its Article 120, does not permit
reservations to that Statute, including provisions relating to the
jurisdiction of the International Criminal Court on the crime of genocide.
Thus, in the view of the Court, a reservation under the Genocide Convention
would be permissible to the extent that such reservation is not incompatible
with the object and purpose of the Convention.
67. Rwanda's reservation to Article IX of the Genocide Convention bears on
the jurisdiction of the Court, and does not affect substantive obligations
relating to acts of genocide themselves under that Convention. In the
circumstances of the present case, the Court cannot conclude that the
reservation of Rwanda in question, which is meant to exclude a particular
method of settling a dispute relating to the interpretation, application or
fulfilment of the Convention, is to be regarded as being incompatible with
the object and purpose of the Convention.
68. In fact, the Court has already had occasion in the past to give effect
to such reservations to Article IX of the Convention (see Legality of Use of
Force (Yugoslavia v. Spain), Provisional Measures, Order of 2 June 1999,
I.C.J. Reports 1999, p. 772, paras. 32-33; Legality of [p 33]Use of Force
(Yugoslavia v. United States of America), Provisional Measures, Order of 2
June 1999, I.C.J. Reports 1999, p. 924, paras. 24-25). The Court further
notes that, as a matter of the law of treaties, when Rwanda acceded to the
Genocide Convention and made the reservation in question, the DRC made no
objection to it.
69. In so far as the DRC contended further that Rwanda's reservation is in
conflict with a peremptory norm of general international law, it suffices
for the Court to note that no such norm presently exists requiring a State
to consent to the jurisdiction of the Court in order to settle a dispute
relating to the Genocide Convention. Rwanda's reservation cannot therefore,
on such grounds, be regarded as lacking legal effect.
70. The Court concludes from the foregoing that, having regard to Rwanda's
reservation to Article IX of the Genocide Convention, this Article cannot
constitute the basis for the jurisdiction of the Court in the present case.
***
71. The DRC also 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."
In its Application the DRC alleges that Rwanda has committed numerous acts
of racial discrimination within the meaning of 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 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".
72. Rwanda claims that the jurisdiction of the Court under the Convention on
Racial Discrimination is precluded by its reservation to the entire Article
22. It contends that, as the Court observed in its Order of 10 July 2002,
the said reservation did not attract objections from two-thirds of the
States parties and should therefore be regarded as compatible with the
object and purpose of the Convention pursuant to [p 34] Article 20,
paragraph 2, thereof. Rwanda also points out that the DRC itself did not
raise any objection to that reservation or to any similar reservations made
by other States.
73. For its part, the DRC argues that Rwanda's reservation to Article 22 of
the Convention on Racial Discrimination is unacceptable on the ground of its
incompatibility with the object and purpose of the treaty, "because it would
amount to granting Rwanda the right to commit acts prohibited by the
Convention with complete impunity". The DRC further contended at the
hearings that the prohibition on racial discrimination was a peremptory norm
and that, "in keeping with the spirit of Article 53 of the Vienna
Convention" on the Law of Treaties, Rwanda's reservation to Article 22 of
the Convention on Racial Discrimination should "be considered as contrary to
jus cogens and without effect". Hence the fact that the DRC had not objected
to that reservation was of no consequence in the present proceedings. In
addition, the DRC maintained, as it did in respect of the reservation to
Article IX of the Genocide Convention (see paragraph 30 above), that the
reservation entered by Rwanda to Article 22 of the Convention on Racial
Discrimination has "lapsed or fallen into desuetude as a result of the
undertaking, enshrined in the Rwandan Fundamental Law, to 'withdraw all
reservations entered by Rwanda when it adhered to . . . international
instruments'" relating to human rights.
*
74. The Court notes that both the DRC and Rwanda are parties to the
Convention on Racial Discrimination, the DRC having acceded thereto on 21
April 1976 and Rwanda on 16 April 1975. Rwanda's instrument of accession to
the Convention, as deposited with the United Nations Secretary-General, does
however include a reservation reading as follows: "The Rwandese Republic
does not consider itself as bound by article 22 of the Convention".
75. The Court will first address the DRC's argument that the reservation has
"lapsed or fallen into desuetude as a result of the undertaking, enshrined
in the Rwandan Fundamental Law, to 'withdraw all reservations entered by
Rwanda when it adhered to . . . international instruments'" relating to
human rights. Without prejudice to the applicability mutatis mutandis to the
Convention on Racial Discrimination of the Court's reasoning and conclusions
in respect of the DRC's claim that Rwanda withdrew its reservation to the
Genocide Convention (see paragraphs 38-55 above), the Court observes that
the procedures for withdrawing a reservation to the Convention on Racial
Discrimination are expressly provided for in Article 20, paragraph 3, of
that Convention, which states: "Reservations may be withdrawn at any time by
notification to this effect addressed to the Secretary-General. Such
notification shall take effect on the date on which it is received."
However, there is no evidence before the Court of any notification by Rwanda
to the United [p 35] Nations Secretary-General of its intention to withdraw
its reservation to Article 22 of the Convention on Racial Discrimination.
The Court accordingly concludes that the respondent State has maintained
that reservation.
76. The Court must therefore now consider the DRC's argument that the
reservation is invalid.
77. The Court notes that the Convention on Racial Discrimination prohibits
reservations incompatible with its object and purpose. The Court observes in
this connection that, under Article 20, paragraph 2, of the Convention, "[a]
reservation shall be considered incompatible . . . if at least two-thirds of
the States Parties to [the] Convention object to it". The Court notes,
however, that such has not been the case as regards Rwanda's reservation in
respect of the Court's jurisdiction. Without prejudice to the applicability
mutatis mutandis to Rwanda's reservation to Article 22 of the Convention on
Racial Discrimination of the Court's reasoning and conclusions in respect of
Rwanda's reservation to Article IX of the Genocide Convention (see
paragraphs 66-68 above), the Court is of the view that Rwanda's reservation
to Article 22 cannot therefore be regarded as incompatible with that
Convention's object and purpose. The Court observes, moreover, that the DRC
itself raised no objection to the reservation when it acceded to the
Convention.
78. In relation to the DRC's argument that the reservation in question is
without legal effect because, on the one hand, the prohibition on racial
discrimination is a peremptory norm of general international law and, on the
other, such a reservation is in conflict with a peremptory norm, the Court
refers to its reasoning when dismissing the DRC's similar argument in regard
to Rwanda's reservation to Article IX of the Genocide Convention (see
paragraphs 64-69 above): the fact that a dispute concerns non-compliance
with a peremptory norm of general international law cannot suffice to found
the Court's jurisdiction to entertain such a dispute, and there exists no
peremptory norm requiring States to consent to such jurisdiction in order to
settle disputes relating to the Convention on Racial Discrimination.
79. The Court concludes from the foregoing that, having regard to Rwanda's
reservation to Article 22 of the Convention on Racial Discrimination, this
Article cannot constitute the basis for the jurisdiction of the Court in the
present case.
***
80. The DRC further claims to found the jurisdiction of the Court on Article
29, paragraph 1, of the Convention on Discrimination Against Women, which
provides:
"Any dispute between two or more States Parties concerning the
interpretation or application of the present Convention which is not [p 36]
settled by 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."
The DRC maintains that Rwanda has violated its obligations under Article 1
of the Convention, which reads as follows:
"For the purposes of the present Convention, 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."
81. Rwanda contends that the Court cannot assume jurisdiction on the basis
of Article 29 of the Convention on Discrimination Against Women, on the
ground that in the present case the preconditions required by that provision
for referral to the Court have not been fulfilled. Those preconditions are
cumulative according to Rwanda and are as follows: there must be a dispute
between the parties concerning the interpretation or application of the
Convention; it must have proved impossible to settle that dispute by
negotiation; one of the parties must have requested that the dispute be
submitted to arbitration, but the parties have been unable to agree on the
organization thereof; and, lastly, six months must have elapsed between the
request for arbitration and seisin of the Court.
Rwanda further argues that the objections which it has raised in these
proceedings bear on the jurisdiction of the Court and not on the
admissibility of the Application, as the DRC contends. It states in this
connection that the Court's jurisdiction is based on the consent of the
parties and that they are free to attach substantive or procedural
conditions to that consent; as those conditions circumscribe the recognition
of the Court's jurisdiction, a contention that they have not been complied
with is not an objection as to admissibility but indeed an objection to the
jurisdiction of the Court, as, according to Rwanda, the Court made clear in
the case concerning the Aerial Incident at Lockerbie.
82. In respect of the first of the four conditions laid down by Article 29,
that is to say the existence of a dispute concerning the Convention, Rwanda
asserts that "there has been no claim by the Congo, prior to its filing of
the Application[,]" and that "at no time did the Congo advance any claim
that Rwanda was in breach of the Convention or suggest that there was a
dispute regarding the interpretation of any provision of the Convention". It
argues in this connection that the practice of human rights tribunals, cited
by the DRC, under which an [p 37] individual is not required first to
identify the precise provision of the treaty relied on, does not relieve the
DRC of the duty to specify the nature of the dispute. Rwanda observes that
the present proceedings do not involve a claim brought by an individual
against a State, but are between two equal States and that in this phase of
the case it is no longer just a matter of determining whether the Court has
prima facie jurisdiction to indicate provisional measures, but of
ascertaining whether the preconditions for the seisin of the Court have been
satisfied.
83. In respect of the condition of prior negotiation, Rwanda maintains that
"the Congo has at no time even raised the question of this Convention with
Rwanda in any of the numerous meetings which have taken place between
representatives of the two governments over the last few years", the series
of meetings between the two States referred to by the DRC having involved
general negotiations to settle the armed conflict, not a dispute concerning
the said Convention. The only attempt to negotiate which would be relevant
to satisfying the conditions of Article 29 would be one concerning a
specific dispute over the interpretation or application of the Convention on
Discrimination Against Women. Rwanda points out in particular that the
Court, in its Order of 10 July 2002, decided that the DRC had not shown that
its attempts to enter into negotiations or undertake arbitration proceedings
concerned the application of the Convention. In response to the DRC's
argument that the war between the two Parties rendered negotiations
impossible over a specific dispute under the Convention, Rwanda has cited a
letter of 14 January 2002 from the Minister of Telecommunications of the DRC
to the Secretary-General of the International Telecommunication Union
concerning a question of telephone prefixes; in Rwanda's view, this letter
shows that, if the DRC was able in the middle of an armed conflict to raise
a technical issue of this kind, it would certainly have been capable of
entering into negotiations dealing with a dispute over specific provisions
of the Convention.
84. Lastly, concerning the arbitration requirement, Rwanda contends that
there has been no attempt by the DRC to take any of the steps required to
organize arbitration proceedings, despite the holding of "regular and
frequent meetings between representatives of the two countries at all levels
as part of the Lusaka peace process"; according to Rwanda, the DRC has not
offered any evidence in this connection. Rwanda adds that the lack of
diplomatic relations between the Parties at the time is beside the point; it
notes moreover that in its 2002 Order the Court considered this argument to
be insufficient.
85. For its part, the DRC maintains, first, that "the purported objection to
jurisdiction on grounds of failure to satisfy the preconditions" provided
for in Article 29 of the Convention in reality constitutes an objection to
the admissibility of the Application. [p 38]
Secondly, the DRC denies that the compromissory clause in question contains
four preconditions. According to the DRC, the clause contains only two
conditions, namely that the dispute must involve the application or
interpretation of the Convention and that it must have proved impossible to
organize arbitration proceedings, it being understood that such a failure
"will not become apparent until six months have elapsed from the request for
arbitration".
86. Concerning the fulfilment of those conditions, the DRC asserts that
international law does not prescribe any set form for the filing of
complaints by States; negotiation may be bilateral, but it may also be
conducted within the framework of an international organization, as the
Court stated in the South West Africa cases in 1962. The DRC points out that
it lodged numerous claims against Rwanda in the form of protests made to the
authorities of that State through the intermediary of international
institutions or organizations and through individual contacts between the
respective authorities of the two States. The DRC further asserts that the
protests made through international organizations "were brought to the
attention of Rwanda by the United Nations bodies" and that, "since the
private meetings between the Congolese and Rwandan Presidents took place
mainly under the auspices either of other Heads of States or of
international institutions, the official summit proceedings relating thereto
are in the public domain". As instances of negotiations conducted within the
framework of international organizations, the DRC cites the complaint
referred on 24 February 1999 to the African Commission on Human and Peoples'
Rights, a body which, according to the DRC, plays "a veritable role of
arbitrator" between African States in respect of violations of human rights
guaranteed not only by the African Charter on Human and Peoples' Rights but
also by other international instruments; in the view of the DRC, the
Commission could have ruled on violations of conventions such as the
Convention on Discrimination Against Women if Rwanda had not obstructed the
proceedings by various delaying tactics. The DRC also refers to its
complaints to the United Nations Security Council following various human
rights violations committed by Rwanda and to the adoption by that body of
resolutions, including resolutions 1304 of 16 June 2000 and 1417 of 14 June
2002, in which, according to the DRC, the Council "progressed from mere
requests to actual demands". The DRC contends that there were therefore
indeed attempts on its part to negotiate, but no headway could ever be made
owing to Rwanda's bad faith; the DRC further contends that "the
impossibility of opening or progressing in negotiations with Rwanda"
precluded contemplating "the possibility of moving from negotiations to
arbitration".
*
87. The Court notes that both the DRC and Rwanda are parties to the
Convention on Discrimination Against Women, the DRC having ratified it on 17
October 1986 and Rwanda on 2 March 1981. It also notes that Article 29 of
this Convention gives the Court jurisdiction in respect of any dispute
between States parties concerning its interpretation or application, on
condition that: it has not been possible to settle the dispute by
negotiation; that, following the failure of negotiations, the dispute has,
at the request of one such State, been submitted to arbitration; and that,
if the parties have been unable to agree on the organization of the
arbitration, a period of six months has elapsed from the date of the request
for arbitration.
In the view of the Court, it is apparent from the language of Article 29 of
the Convention that these conditions are cumulative. The Court must
therefore consider whether the preconditions on its seisin set out in the
said Article 29 have been satisfied in this case.
88. The Court will however first address the DRC's argument that the
objection based on non-fulfilment of the preconditions set out in the
compromissory clauses, and in particular in Article 29 of the Convention, is
an objection to the admissibility of its Application rather than to the
jurisdiction of the Court. The Court recalls in this regard that its
jurisdiction is based on the consent of the parties and is confined to the
extent accepted by them (see paragraph 65 above). When that consent is
expressed in a compromissory clause in an international agreement, any
conditions to which such consent is subject must be regarded as constituting
the limits thereon. The Court accordingly considers that the examination of
such conditions relates to its jurisdiction and not to the admissibility of
the application (see Mavrommatis Palestine Concessions, Judgment No. 2,
1924, P.C.I.J., Series A, No. 2, pp. 11-15; Interpretation of the Statute of
the Memel Territory, Merits, Judgment, 1932, P.C.I.J., Series A/B, No. 49,
pp. 327-328; Electricity Company of Sofia and Bulgaria, Judgment, 1939,
P.C.I.J., Series A/B, No. 77, pp. 78-80; South West Africa, (Ethiopia v.
South Africa; Liberia v. South Africa, Preliminary Objections, Judgment,
I.C.J. Reports 1962, pp. 344-346; Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), Jurisdiction
and Admissibility, Judgment, I.C.J. Reports 1984, pp. 427-429, paras. 81-83;
Border and Transborder Armed Actions (Nicaragua v. Honduras), Jurisdiction
and Admissibility, Judgment, I.C.J. Reports 1988, pp. 88-90, paras. 42-48;
Questions of Interpretation and Application of the 1971 Montreal Convention
arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 1998, p.
16, paras. 16-19; p. 24, paras. 39-40; 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),
Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 121-122, paras.
15-19; p. 129, paras. 38-39). It follows that in the present case the
conditions for seisin of the Court set out in Article 29 of the Convention
on Discrimination Against Women must be examined in [p 40] the context of
the issue of the Court's jurisdiction. This conclusion applies mutatis
mutandis to all of the other compromissory clauses invoked by the DRC.
89. The Court will now examine the conditions laid down by Article 29 of the
Convention on Discrimination Against Women. It will begin by considering
whether in this case there exists a dispute between the Parties "concerning
the interpretation or application of [that] Convention" which could not have
been settled by negotiation.
90. The Court recalls in this regard that, as long ago as 1924, the
Permanent Court of International Justice stated that "a dispute is a
disagreement on a point of law or fact, a conflict of legal views or
interests" (Mavrommatis Palestine Concessions, Judgment No. 2, 1924,
P.C.I.J., Series A, No. 2, p. 11).
For its part, the present Court has had occasion a number of times to state
the following:
"In order to establish the existence of a dispute, 'it must be shown that
the claim of one party is positively opposed by the other' (South West
Africa, Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328); and
further, 'Whether there exists an international dispute is a matter for
objective determination' (Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p.
74)." (East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p.
100, para. 22; Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 1998, p. 17, para. 22; 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), Preliminary
Objections, Judgment, I.C.J. Reports 1998, pp. 122-123, para. 21; Certain
Property (Liechtenstein v. Germany), Preliminary Objections, Judgment,
I.C.J. Reports 2005, p. 18, para. 24.)
91. The Court notes that in the present case the DRC made numerous protests
against Rwanda's actions in alleged violation of international human rights
law, both at the bilateral level through direct contact with Rwanda and at
the multilateral level within the framework of international institutions
such as the United Nations Security Council and the Commission on Human and
Peoples' Rights of the Organization of African Unity. In its
Counter-Memorial and at the hearings the DRC presented these protests as
proof that "the DRC has satisfied the preconditions to the seisin of the
Court in the compromissory clauses invoked". Whatever may be the legal
characterization of such protests as regards the requirement of the
existence of a dispute between the DRC and Rwanda for purposes of Article 29
of the Convention, that Article requires also that any such dispute be the
subject of nego-[p 41]tiations. The evidence has not satisfied the Court
that the DRC in fact sought to commence negotiations in respect of the
interpretation or application of the Convention.
92. The Court further notes that the DRC has also failed to prove any
attempts on its part to initiate arbitration proceedings with Rwanda under
Article 29 of the Convention. The Court cannot in this regard accept the
DRC's argument that the impossibility of opening or advancing in
negotiations with Rwanda prevented it from contemplating having recourse to
arbitration; since this is a condition formally set out in Article 29 of the
Convention on Discrimination Against Women, the lack of agreement between
the parties as to the organization of an arbitration cannot be presumed. The
existence of such disagreement can follow only from a proposal for
arbitration by the applicant, to which the respondent has made no answer or
which it has expressed its intention not to accept (see Questions of
Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 17, para. 21;
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), Preliminary Objections, Judgment, I.C.J. Reports
1998, p. 122, para. 20). In the present case, the Court has found nothing in
the file which would enable it to conclude that the DRC made a proposal to
Rwanda that arbitration proceedings should be organized, and that the latter
failed to respond thereto.
93. It follows from the foregoing that Article 29, paragraph 1, of the
Convention on Discrimination Against Women cannot serve to found the
jurisdiction of the Court in the present case.
***
94. The DRC further seeks to found the jurisdiction of the Court on Article
75 of the WHO Constitution, which provides:
"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."
The DRC contends that Rwanda has breached the provisions of Articles 1 and 2
of the Constitution, which respectively concern the Organization's
objectives and functions.
95. Rwanda maintains that Article 75 of the WHO Constitution cannot found
the Court's jurisdiction in this case. In this regard, it begins by [p 42]
arguing that the WHO Constitution is inapplicable for two reasons. First, it
claims that the DRC has failed to specify which particular obligation laid
down by that instrument has allegedly been breached by Rwanda, the only
provision to which it ever made reference having been Article 2; that
Article does not impose any direct obligation on the Member States
themselves, as the Court moreover pointed out in paragraph 82 of its Order
of 10 July 2002. Secondly, Rwanda contends that the DRC's allegations "do
not appear to give rise to a dispute concerning the interpretation or
application of the Constitution", as "it is clear from the Application that
the Congo considers this dispute to be founded on the alleged acts of
aggression of Rwanda".
96. Rwanda further argues that, in addition to requiring the existence of a
dispute concerning the interpretation or application of the Constitution,
Article 75 imposes two further preconditions on the seisin of the Court:
namely, settlement of the dispute by negotiation must have proved impossible
and settlement by the World Health Assembly must also have proved
impossible. According to Rwanda, the two requirements of negotiation and
recourse to the World Health Assembly are cumulative not alternative, as
claimed by the DRC, and they have not been satisfied in the present case.
Rwanda adds that, even if the two requirements were not cumulative, the DRC
would still be unable to rely on Article 75, because it has not proved that
it has satisfied the negotiation requirement. It is not sufficient, in
Rwanda's view, for the DRC to argue that Rwanda's refusal to participate
rendered negotiation impossible; Rwanda considers that the DRC must show
"that it . . . attempted, in good faith, to negotiate a solution to this
particular dispute".
97. In reply, the DRC disputes Rwanda's assertion that the obligations set
out in the WHO Constitution are binding only on the Organization itself; in
the DRC's view, it would be difficult "to accept that Member States,
including Rwanda, are not under an obligation to contribute to the
accomplishment by the World Health Organization of [its] functions" or, at
the very least, to refrain from hindering the fulfilment of its objective
and those functions, as they are defined in Articles 1 and 2 of the
Constitution. The DRC asserts that the principle that Member States must
fulfil in good faith the obligations they have assumed is "a general
principle the basis of which is to be found in international customary law
and which is confirmed by other constituent instruments of international
organizations"; it specifically cites the example of Article 2, paragraph 2,
of the United Nations Charter. The DRC alleges that Rwanda, in resorting to
the spreading of AIDS as an instrument of war and in engaging in large-scale
killings on Congolese territory, has not "in good faith carried out the
Constitution of the WHO, which aims at fostering the highest possible level
of health for all peoples of the world"; the DRC further claims to have made
an ample showing that a number of international organizations, both
governmental and other, "have published detailed reports on the serious
deterioration of the health situation in the DRC as [p 43] a consequence of
the war of aggression" waged by Rwanda.
98. The DRC further contends that Article 75 of the WHO Constitution leaves
it open to the parties to choose between negotiations and recourse to the
World Health Assembly procedure to settle their disputes; according to the
DRC, these two conditions are not cumulative, as is shown by "the use of the
word 'or'". Members of the World Health Organization are accordingly under
no obligation to look first to one and then the other of these modes of
settlement before bringing proceedings before the Court. In the present
case, the DRC opted for negotiations, but these failed "through the fault of
Rwanda".
*
99. The Court observes that the DRC has been a party to the WHO Constitution
since 24 February 1961 and Rwanda since 7 November 1962 and that both are
thus members of that Organization. The Court further notes that Article 75
of the WHO Constitution provides for the Court's jurisdiction, under the
conditions laid down therein, over "any question or dispute concerning the
interpretation or application" of that instrument. The Article requires that
a question or dispute must specifically concern the interpretation or
application of the Constitution. In the opinion of the Court, the DRC has
not shown that there was a question concerning the interpretation or
application of the WHO Constitution on which itself and Rwanda had opposing
views, or that it had a dispute with that State in regard to this matter.
100. The Court further notes that, even if the DRC had demonstrated the
existence of a question or dispute falling within the scope of Article 75 of
the WHO Constitution, it has in any event not proved that the other
preconditions for seisin of the Court established by that provision have
been satisfied, namely that it attempted to settle the question or dispute
by negotiation with Rwanda or that the World Health Assembly had been unable
to settle it.
101. The Court concludes from the foregoing that Article 75 of the WHO
Constitution cannot serve to found its jurisdiction in the present case.
***
102. The DRC further seeks to found the jurisdiction of the Court on Article
XIV, paragraph 2, of the Unesco Constitution, which reads as follows:
"Any question or dispute concerning the interpretation of this Constitution
shall be referred for determination to the International [p 44] Court of
Justice or to an arbitral tribunal, as the General Conference may determine
under its rules of procedure."
In its Application the DRC invokes Article I of the Constitution, which
concerns the Organization's purposes and functions, and maintains that
"owing to the war, the Democratic Republic of the Congo today is unable to
fulfil its missions within Unesco . . .".
103. Rwanda argues that the Court is precluded for various reasons from
finding that it has jurisdiction on the basis of Article XIV of the Unesco
Constitution. It first points out that this provision limits the Court's
jurisdiction to disputes concerning the "interpretation" of the Constitution
and that in this case there is no hint of any dispute between the Parties
regarding interpretation of the Constitution. It contends that the DRC's
allegation that it is unable to fulfil its missions within Unesco owing to
the war "at its highest . . . would only amount to a dispute concerning the
application of the Constitution" of that Organization. Rwanda adds that the
Court itself, in paragraph 85 of its Order of 10 July 2002, stated that the
interpretation of the Unesco Constitution did not appear to be the object of
the DRC's Application; Rwanda notes that Unesco, after being invited by the
Court to submit written observations on the Application, responded that it
concurred entirely with the view expressed in that paragraph of the Court's
Order. Rwanda points out that "no new arguments or evidence have been
presented by the Congo since that Order to suggest that its allegations do
indeed concern the interpretation of the Constitution".
104. Rwanda next argues that, even if Article XIV of the Unesco Constitution
did not confine the Court's jurisdiction solely to matters of interpretation
of the instrument, the DRC has failed to show the relevance of the
Constitution to the present dispute. According to Rwanda, "the essence of
the Congo's case is the alleged acts of aggression" committed by Rwanda and
"the Congo has failed to make clear which . . . obligation under the Unesco
Constitution has been breached". It notes in this connection that Article I
of the Constitution, cited by the DRC in its Application, "simply outlines
the purposes and functions of the organization [and] does not impose any
direct obligations on the Member States".
105. Lastly, Rwanda argues that the procedures laid down in Article XIV of
the Unesco Constitution and in the Rules of Procedure of the Unesco General
Conference, to which that Article refers, were not followed. According to
Rwanda, Article XIV does not empower States unilaterally to refer a dispute
to the Court. It notes that Article 38 of the Rules of Procedure
"provides for questions concerning the interpretation of the Constitution to
be referred to the Legal Committee [of the General [p 45] Conference, which]
may then either 'decide by a simple majority to recommend to the General
Conference that any question concerning the interpretation of the
Constitution be referred to the International Court of Justice' . . . or . .
. may: 'In cases where the Organization is party to a dispute . . . decide
by a simple majority, to recommend to the General Conference that the case
be submitted for final decision to an arbitral tribunal, arrangements for
which shall be made by the Executive Board.'"
Rwanda observes in this regard that "the Congo has at no time suggested that
these procedures have been adhered to".
106. The DRC argues in response that Article XIV of the Unesco Constitution
leaves it open to the parties, in settling their disputes, to choose between
negotiation and referral to the General Conference and imposes no obligation
to try each of those modes of settlement in turn; in the present case, the
DRC opted for negotiations, which "failed through the fault of Rwanda". At
the hearings, the DRC added: "Rwanda's assertion that Unesco concurred with
the opinion of the Court raises a problem". It maintained that, if the
opinion of the Court with which Unesco concurred was "ultimately, . . . the
decision that the Court's lack of jurisdiction was not manifest, then Rwanda
is unfounded in maintaining that the compromissory clause in the Unesco
Constitution cannot serve as a basis for the Court's jurisdiction".
*
107. The Court notes that both the DRC and Rwanda are parties to the Unesco
Constitution and have been since 25 November 1960 in the case of the DRC and
7 November 1962 in the case of Rwanda, and that both are thus members of
that Organization. The Court further observes that Article XIV, paragraph 2,
of the Unesco Constitution provides for the referral, under the conditions
established therein, of questions or disputes concerning the Constitution,
but only in respect of its interpretation. The Court considers that such is
not the object of the DRC's Application. It finds that the DRC has in this
case invoked the Unesco Constitution and Article I thereof for the sole
purpose of maintaining that "owing to the war", it "today is unable to
fulfil its missions within Unesco". The Court is of the opinion that this is
not a question or dispute concerning the interpretation of the Unesco
Constitution. Thus the DRC's Application does not fall within the scope of
Article XIV of the Constitution.
108. The Court further considers that, even if the existence of a question
or dispute falling within the terms of the above provision were established,
the DRC has in any event failed to show that the prior procedure for seisin
of the Court pursuant to that provision and to [p 46] Article 38 of the
Rules of Procedure of the Unesco General Conference was followed.
109. The Court concludes from the foregoing that Article XIV, paragraph 2,
of the Unesco Constitution cannot serve to found its jurisdiction in the
present case.
***
110. The DRC further claims to found the jurisdiction of the Court on
Article 14, paragraph 1, of the Montreal Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation, which provides 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."
In its Application the DRC made the following submission inter alia:
"by shooting down a Boeing 727 owned by Congo Airlines on [10] 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".
111. Rwanda asserts that Article 14, paragraph 1, of the Montreal Convention
lays down a series of requirements, each of which must be met before that
provision can confer jurisdiction upon the Court, namely: there must be a
dispute between the parties concerning the interpretation or application of
the Convention; it must have proved impossible to settle the dispute by
negotiation; one of the parties must have requested that the dispute be
submitted to arbitration and the parties must have been unable to agree upon
the organization of the arbitration; and, finally, six months must have
elapsed from the date of the request for arbitration.
112. Rwanda first contends that the DRC has failed to establish the
existence of a dispute between the Parties falling within the scope of
Article 14 of the Montreal Convention. It argues that under this provision
"it is not open to a Claimant, . . . incidentally and implicitly, to put in
issue the Montreal Convention in the course of proceedings raising a wider
dispute or set of allegations". It asserts that this, however, is precisely
what the DRC seeks to do in the present proceedings, inasmuch as the DRC
maintains that the dispute concerns "acts of armed aggression" and has
submitted a "Statement of Facts" revealing [p 47] no allegation which could
fall within the scope of the Convention. Rwanda concludes: "It is manifest
that the vast majority of issues raised in the Congolese Application have
nothing whatever to do with the Montreal Convention . . ." It notes in this
regard that the DRC's only attempt to identify a dispute concerning the
Montreal Convention is confined to the allegation, "made not in the
'Statement of Facts' but in the prayer for relief at the end of the
Application", concerning the destruction of an aircraft belonging to Congo
Airlines on 10 October 1998 above Kindu.
On this point, Rwanda asserts that the DRC has "not adequately defined the
dispute said to exist between [the Parties] regarding the interpretation or
application of the Montreal Convention". It contends that the incident
alleged to have occurred at Kindu was the subject of a complaint submitted
by the DRC to the International Civil Aviation Organization (hereinafter the
"ICAO") and considered by the ICAO Council, but that the DRC failed to
provide the Council with any clarification of its allegations. In
particular, according to Rwanda, the DRC alleged that the aircraft had been
shot down not by Rwanda but by Congolese rebel forces and then made
identical allegations against Uganda, without any attempt to reconcile its
allegations against those two States. Rwanda further observes that the
Declaration adopted by the ICAO Council on 10 March 1999 contains no
reference to the incident, "let alone any suggestion that there might have
been any violation of the Montreal Convention by Rwanda, or that there might
be a dispute between the Congo and Rwanda concerning the interpretation or
application of the Convention". Rwanda accordingly concludes that, despite
the opportunity afforded the DRC by the ICAO proceedings, it "has not set
out its claim with sufficient particularity for Rwanda to be able to oppose
it".
113. Rwanda next argues that, even if there existed a dispute between the
DRC and itself regarding the interpretation or application of the Montreal
Convention, the DRC would still have to prove that it has met the procedural
requirements set out in Article 14, paragraph 1, of the Convention. Yet,
according to Rwanda, the DRC has failed to show that any such dispute could
not be settled by negotiation; it argues in this connection that
"although the Congo has referred to the alleged impossibility of negotiating
a peaceful settlement with Rwanda, the Congo has here confused the
settlement of the armed conflict, the nub of the allegation it makes, with
the settlement of the specific dispute which it asserts exists under the
Montreal Convention".
Rwanda also observes that the DRC never suggested referring the dispute to
arbitration and that it has thus failed to satisfy another essential
requirement imposed by Article 14, paragraph 1, of the Montreal Convention.
114. In response, the DRC contends first that "the purported object-[p
48]tion to jurisdiction" on grounds of failure to satisfy the preconditions
laid down in Article 14 of the Montreal Convention in reality constitutes an
objection to the admissibility of the Application (see paragraphs 85 and 88
above).
The DRC next asserts that only two preconditions are laid down by that
Article, namely: the dispute must concern the application or interpretation
of the Convention in question; and it must have proved impossible to
organize an arbitration, it being understood that the failure of an attempt
to do so "will not become apparent until six months have elapsed from the
request for arbitration".
Finally, the DRC maintains that these two preconditions for the seisin of
the Court have been satisfied in the present case.
115. As regards the existence of a dispute within the meaning of Article 14
of the Montreal Convention, the DRC observes that Rwanda itself has
acknowledged that the only dispute in respect of which that Convention might
furnish a basis for the Court's jurisdiction is the one relating to the
incident of 10 October 1998 involving the Congo Airlines aircraft above
Kindu.
116. In respect of the requirement of negotiations, the DRC contends that
the Rwandan authorities adopted the "empty chair" policy whenever the DRC
offered to discuss an issue such as the application of the Montreal
Convention to the incident of 10 October 1998. It cites in particular the
Syrte (Libya) Summit, "devoted to the settlement of various disputes between
the Parties", to which Rwanda had been invited but which it did not attend,
and the Blantyre (Malawi) Summit in 2002, in which Rwanda did not take part
either and where, according to the United Nations Secretary-General, "no
substantive issues were discussed" because of Rwanda's absence. At the
hearings, the DRC further stated that a Security Council Group of Experts
described itself in its report of 25 January 2005 as "gravely concerned
about the lack of co-operation received from Rwanda on civil aviation
matters". The DRC also argued
"that negotiation between two States has been initiated either once the
dispute has been the subject of an exchange of views, or indeed where it has
been raised in a specific forum to which both States are party (this was the
case for the ICAO, the United Nations Security Council, and various
multilateral or sub-regional conferences), where the Congo consistently
evoked Rwanda's violations of certain international instruments".
The DRC further contended that "the impossibility of opening or progressing
in negotiations with Rwanda" precluded contemplating "the possibility of
moving from negotiations to arbitration".
*
117. The Court notes that both the DRC and Rwanda are parties to [p 49] the
Montreal Convention and have been since 6 July 1977 in the case of the DRC
and 3 November 1987 in the case of Rwanda, that both are Members of the
ICAO, and that the Montreal Convention was already in force between them at
the time when the Congo Airlines aircraft is stated to have been destroyed
above Kindu, on 10 October 1998, and when the Application was filed, on 28
May 2002. The Court also notes that Article 14, paragraph 1, of the Montreal
Convention gives the Court jurisdiction in respect of any dispute between
contracting States concerning the interpretation or application of the
Convention, on condition that: it has not been possible to settle the
dispute by negotiation; that, following the failure of negotiations, the
dispute has, at the request of one such State, been submitted to
arbitration; and that, if the parties have been unable to agree on the
organization of the arbitration, a period of six months has elapsed from the
date of the request for arbitration. In order to determine whether it has
jurisdiction under this provision, the Court will therefore first have to
ascertain whether there is a dispute between the Parties relating to the
interpretation or application of the Montreal Convention which could not
have been settled by negotiation.
118. The Court observes in this regard that the DRC has not indicated to it
which are the specific provisions of the Montreal Convention which could
apply to its claims on the merits. In its Application the DRC confined
itself to invoking that Convention in connection with the destruction on 10
October 1998, shortly after take-off from Kindu Airport, of a civil aircraft
belonging to Congo Airlines. Even if it could be established that the facts
cited by the DRC might, if proved, fall within the terms of the Convention
and gave rise to a dispute between the Parties concerning its interpretation
or application, and even if it could be considered that the discussions
within the Council of the ICAO amounted to negotiations, the Court finds
that, in any event, the DRC has failed to show that it satisfied the
conditions required by Article 14, paragraph 1, of the Montreal Convention
concerning recourse to arbitration: in particular, it has not shown that it
made a proposal to Rwanda that arbitration proceedings should be organized,
and that the latter failed to respond thereto (cf. paragraph 92 above).
119. The Court considers that Article 14, paragraph 1, of the Montreal
Convention cannot therefore serve to found its jurisdiction in the present
case.
***
120. To found the jurisdiction of the Court in the present case, the DRC
relies finally on Article 66 of the Vienna Convention on the Law of
Treaties, which provides inter alia that "any 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 general
[p 50] 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".
121. In its Counter-Memorial the DRC noted that Rwanda's Memorial invoked
inter alia "the alleged irrelevance of the Congo's reference to the Vienna
Convention on the Law of Treaties", and the DRC referred the Court in this
regard to the arguments which it had presented at the provisional measures
phase. At the hearings, the DRC explained that Article 66 of the Vienna
Convention on the Law of Treaties, to which Rwanda is a party, allows the
Court to rule on any dispute concerning "the validity of a treaty which is
contrary to a norm of jus cogens". In this regard the DRC argued that
reservations to a treaty form an integral part thereof, and that they must
accordingly "avoid either being in direct contradiction with a norm of jus
cogens, or preventing the implementation of that norm". According to the
DRC, Rwanda's reservation to Article IX of the Genocide Convention, as well
as to "other similar provisions and compromissory clauses, seeks to prevent
the . . . Court from fulfilling its noble mission of safeguarding peremptory
norms, including the prohibition of genocide", and must therefore be
regarded as "null and void".
122. In reply to Rwanda's reliance at the hearings on Article 4 of the
Vienna Convention, which provides that the Convention applies only to
treaties which are concluded by States after its entry into force with
regard to such States, the DRC contended that "the supremacy and mandatory
force of the norms referred to in this Convention (Articles 53 and 64) bind
States irrespective of any temporal consideration or any treaty-based link";
according to the DRC, the rule can therefore "have retroactive effect in the
overriding interest of humanity". In this connection, the DRC cited the
Judgment of 27 June 1986 in the case concerning Military and Paramilitary
Activities in and against Nicaragua, where the Court held that there was an
obligation on the United States to respect the four Geneva Conventions "in
all circumstances", since such an obligation "does not derive only from the
Conventions themselves, but from the general principles of humanitarian law
to which the Conventions merely give concrete expression". The DRC also
invoked the "moral and humanitarian principles" to which the Court had
referred in its Advisory Opinion on Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide, and it asked the Court
"to safeguard [those principles] by finding that it has jurisdiction".
123. For its part, Rwanda contended in its Memorial that the DRC's
contention that the norms of jus cogens are capable of conferring
jurisdiction on the Court is without foundation, since it ignores the
principle, well established in the Court's jurisprudence, that jurisdiction
is always dependent on the consent of the parties, even when the norm that a
State is accused of violating is a jus cogens norm. Rwanda added that the
same [p 51] is true of the Court's jurisdiction to entertain a dispute
concerning violation of a norm creating obligations erga omnes. It recalled
that, in its East Timor Judgment, the Court held that "the erga omnes
character of a norm and the rule of consent to jurisdiction are two
different things". Rwanda further contended that Article 66 of the Vienna
Convention on the Law of Treaties did not provide for "any" dispute
regarding contravention of a rule of jus cogens to be referred to the Court;
it was concerned with "a very specific kind of dispute regarding one effect
of norms of jus cogens". According to Rwanda, Article 66 "is part and parcel
of the machinery for the settlement of disputes regarding the interpretation
and application of the Vienna Convention" and confers 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", which is not at all the case in
this instance.
124. At the hearings, and in response to the DRC's argument that Rwanda's
reservations to Article IX of the Genocide Convention and to Article 22 of
the Convention on Racial Discrimination were void because they conflicted
with a peremptory norm of general international law within the meaning of
Article 53 of the 1969 Vienna Convention, Rwanda further argued that Article
66 of the latter Convention cannot in any event apply in the present case in
view of the Convention's temporal scope. In this connection, it observed
that the Genocide Convention, like the Convention on Racial Discrimination,
was concluded prior to the entry into force for the two parties of the
Vienna Convention, Article 4 of which provides that it applies "only to
treaties which are concluded by States after the entry into force of the
present Convention with regard to such States". Rwanda pointed out that the
provisions of Article 66 of the Vienna Convention, "being jurisdictional
rather than substantive", are not declaratory of a rule of customary law and
"can therefore bind States only as a matter of treaty and only in accordance
with the terms of the treaty". Rwanda added that, in any event, the
application of Article 66 to the present case would serve no purpose, since
it could only "give the Court jurisdiction over whether Rwanda's reservation
is valid"; however, Rwanda accepts that the Court "can rule on that question
. . . as part of its task of determining whether the Genocide Convention
affords a basis of jurisdiction".
*
125. The Court recalls that Article 4 of the Vienna Convention on the Law of
Treaties provides for the non-retroactivity of that Convention in the
following terms:
"Without prejudice to the application of any rules set forth in [p 52] the
present Convention to which treaties would be subject under international
law independently of the Convention, the Convention applies only to treaties
which are concluded by States after the entry into force of the present
Convention with regard to such States."
In this connection, the Court notes first that the Genocide Convention was
adopted on 9 December 1948, the DRC and Rwanda having acceded to it on 31
May 1962 and 16 April 1975 respectively (see paragraph 38 above); and that
the Convention on Racial Discrimination was adopted on 21 December 1965, the
DRC and Rwanda having acceded on 21 April 1976 and 16 April 1975
respectively (see paragraph 74 above). The Court notes secondly that the
Vienna Convention on the Law of Treaties entered into force between the DRC
and Rwanda only on 3 February 1980, pursuant to Article 84, paragraph 2,
thereof. The Conventions on Genocide and Racial Discrimination were
concluded before the latter date. Thus in the present case the rules
contained in the Vienna Convention are not applicable, save in so far as
they are declaratory of customary international law. The Court considers
that the rules contained in Article 66 of the Vienna Convention are not of
this character. Nor have the two Parties otherwise agreed to apply Article
66 between themselves.
Finally, the Court deems it necessary to recall that the mere fact that
rights and obligations erga omnes or peremptory norms of general
international law (jus cogens) are at issue in a dispute cannot in itself
constitute an exception to the principle that its jurisdiction always
depends on the consent of the parties (see paragraph 64 above).
***
126. The Court concludes from all of the foregoing considerations that it
cannot accept any of the bases of jurisdiction put forward by the DRC in the
present case. Since it has no jurisdiction to entertain the Application, the
Court is not required to rule on its admissibility.
***
127. While the Court has come to the conclusion that it cannot accept any of
the grounds put forward by the DRC to establish its jurisdiction in the
present case, and cannot therefore entertain the latter's Application, it
stresses that it has reached this conclusion solely in the context of the
preliminary question of whether it has jurisdiction in this case -- the
issue to be determined at this stage of the proceedings (see paragraph 14
above). The Court is precluded by its Statute from taking any position on
the merits of the claims made by the DRC. However, as the Court has stated
on numerous previous occasions, there is a fundamental distinction between
the question of the acceptance by States of the Court's juris-[p 53]diction
and the conformity of their acts with international law. Whether or not
States have accepted the jurisdiction of the Court, they are required to
fulfil their obligations under the United Nations Charter and the other
rules of international law, including international humanitarian and human
rights law, and they remain responsible for acts attributable to them which
are contrary to international law.
***
128. For these reasons,
THE COURT,
By fifteen votes to two,
Finds that it has no jurisdiction to entertain the Application filed by the
Democratic Republic of the Congo on 28 May 2002.
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Vereshchetin,
Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada, Simma, Tomka, Abraham; Judge ad hoc Dugard;
AGAINST: Judge Koroma; Judge ad hoc Mavungu.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this third day of February, two thousand and six,
in three copies, one of which will be placed in the archives of the Court
and the others transmitted to the Government of the Democratic Republic of
the Congo and the Government of the Republic of Rwanda, respectively.
(Signed) SHI Jiuyong,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judge KOROMA appends a dissenting opinion to the Judgment of the Court;
Judges HIGGINS, KOOIJMANS, ELARABY, OWADA and SIMMA append a joint separate
opinion to the Judgment of the Court; Judge KOOIJMANS appends a declaration
to the Judgment of the Court; Judge AL-KHASAWNEH appends a separate opinion
to the Judgment of the Court; Judge ELARABY appends a declaration to the
Judgment of the Court; [p 54] Judge ad hoc DUGARD appends a separate opinion
to the Judgment of the Court; Judge ad hoc MAVUNGU appends a dissenting
opinion to the Judgment of the Court.
(Initialled) J.Y.S.
(Initialled) Ph.C.
[p 55]
DISSENTING OPINION OF JUDGE KOROMA
1. Among the bases of jurisdiction invoked by the Democratic Republic of the
Congo (DRC) in instituting legal proceedings against Rwanda before the Court
is Article IX of the Convention on the Prevention and Punishment of the
Crime of Genocide of 1948, to which both States are parties, the DRC having
acceded on 31 May 1962 and Rwanda on 16 April 1975. Article IX of the
Convention stipulates that:
"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." (Emphasis added.)
2. Article VIII provides that:
"Any Contracting Party may call upon the competent organs of the United
Nations to take such action under the Charter of the United Nations as they
consider appropriate for the prevention and suppression of acts of genocide
. . ." (emphasis added).
3. According to Article III:
"The following acts shall be punishable: [p 56]
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide."
4. Thus, Article IX envisions that disputes between Contracting Parties
relating to a violation of the Convention and disputes relating to the
interpretation, application or fulfilment of the 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.
5. As stated earlier, both the DRC and Rwanda are parties to the Genocide
Convention. In its accession instrument Rwanda entered a reservation that:
"The Rwandese Republic does not consider itself as bound by Article IX of
the Convention." Thus, Rwanda argued, the jurisdiction of the Court under
the Genocide Convention was excluded by the reservation entered by it to
Article IX.
6. However, Rwanda's reservation, in my view, has to be considered in light
of the object and purpose of the Convention. Under Article I of the
Convention,
"The Contracting Parties confirm that genocide, whether committed in time of
peace or in time of war, is a crime under international law which they
undertake to prevent and to punish." (Emphasis added.)
Article I thus imposes an obligation on States to prevent and punish the
crime of genocide.
7. In its Application, the DRC contends that Rwanda has violated Articles II
and III of the Convention.
8. Article II defines genocide to be:
"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 harm to members of the group;
(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."
Article III has been quoted earlier.
9. Specifically, the DRC claims that Rwandan forces, directly or through
their Rassemblement congolais pour la democratie (RCD/Goma) agents,
committed acts of genocide against 3,500,000 Congolese, by [p 57] carrying
out large-scale massacres, assassinations and other murders targeting
well-identified groups (Warega, Bemba, Bashi, Bahemba . . .) in
Rwandan-occupied territories of the DRC.
10. It is in the light of these tragic events that the DRC decided to
exercise its right under Article IX of the Convention, alleging that Rwanda
had violated its obligations under the Convention and bears responsibility
for those violations. Rwanda, for its part, denied the Court's jurisdiction
on the grounds that: it was not bound by the Article as it had entered a
reservation to it; and the Court therefore lacked competence to adjudicate
on the matter.
11. While a reservation to a treaty clause concerning dispute settlement or
the monitoring of the implementation of the treaty is not, in itself,
incompatible with the object and purpose of the treaty, it is incompatible
if the provision to which the reservation relates constitutes the raison
d'etre of the treaty ("Tenth Report on Reservations to Treaties",
International Law Commission, Fifty-seventh Session, A/CN.4/558/Add.2, Ann.,
p. 31, para. 3.1.13 (14 June 2005)).
12. The object and purpose of the Genocide Convention is the prevention and
punishment of the crime of genocide, and this encompasses holding a State
responsible whenever it is found to be in breach of its obligations under
the Convention. As explained below, Article IX is the only provision of the
Convention addressing the question of State responsibility and it provides:
"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." (Emphasis added.)
The Article thus contemplates that disputes concerning acts of genocide, or
the responsibility of a State or government for such acts, will be referred
to the Court for judicial scrutiny, and that a State accused of breaching
its obligations under the Convention should account to the Court for its
conduct.
13. An analysis of the structure of the Genocide Convention reinforces this
conclusion. The title itself of the Convention -- Convention on the
Prevention and Punishment of the Crime of Genocide -- clearly frames it in
terms of both prevention and punishment of genocide (see, for example,
Certain Norwegian Loans (France v. Norway), Judgment, I.C.J. Reports 1957,
p. 24 (deducing the object and purpose of a Convention from its title)).
Having conclusively established that the acts listed in Article III are
punishable, the Genocide Convention then sets up two types of punishment
mechanisms: the first is aimed at persons and the second at State actors. In
keeping with this dichotomy, Articles IV, V, VI and VII treat the punishment
of persons responsible for genocide or any [p 58] of the other acts listed
in Article III. Unlike Articles IV, V, VI and VII, however, Article IX
focuses on disputes at the level of State actors. Indeed, given the nature
of the crime, it is difficult to imagine how genocide could be committed
without some form of State complicity or involvement. Article IX is thus
crucial to fulfilling the object and purpose of the Convention since it is
the only avenue for adjudicating the responsibilities of States. Denying the
Court this function, as Rwanda purports to do by its reservation, not only
prevents the Court from interpreting or applying the Convention but also --
and this in my view is the critical point in the present case before the
Court -- from enquiring into disputes between Contracting Parties relating
to the responsibility of a State for genocide or for any of the other acts
enumerated in Article III, and is thus not conducive to the fulfilment of
the object and purpose of the Convention, namely, the prevention and
punishment of genocide. As the Court stated in the Legality of Use of Force
cases:
"Article IX of the Convention accordingly appears to constitute a basis on
which the jurisdiction of the Court might be founded to the extent that the
subject-matter of the dispute relates to 'the interpretation, application or
fulfilment' of the Convention, including disputes 'relating to the
responsibility of a State for genocide or for any of the other acts
enumerated in article III' of the said Convention" (Provisional Measures,
Order of 2 June 1999, I.C.J. Reports 1999 (I), p. 137, para. 37; emphasis
added).
14. In considering Rwanda's reservation to Article IX of the Genocide
Convention, the Court observed that the Convention does not prohibit
reservations and that the DRC had put forward no objection to Rwanda's
reservation when it was made. This finding notwithstanding, the fact that a
State does not object to such a reservation at the time it is made is not,
in my view, of dispositive significance, given that States are often remiss
in fulfilling their duties of objecting to reservations which they consider
invalid. Moreover, the failure of a State to object should not be regarded
as determinative in the context of human rights treaties like the Genocide
Convention that are not based on reciprocity between States but instead
serve to protect individuals and the international community at large.
15. As the Human Rights Committee stated in its General Comment 24, human
rights treaties
"are not a web of inter-State exchanges of mutual obligations. They concern
the endowment of individuals with rights. The principle of inter-State
reciprocity has no place, save perhaps in the limited context of
reservations to declarations on the Committee's competence under article 41.
And because the operation of the classic rules on reservations is so
inadequate for the Covenant, States have often not [p 59] seen any legal
interest in or need to object to reservations. The absence of protest by
States cannot imply that a reservation is either compatible or incompatible
with the object and purpose of the Covenant." (Human Rights Committee,
General Comment No. 24 (CCPR/C/21/Rev.I/Add.6), 4 November 1994, para. 17.)
The Committee concluded that the pattern of objections to reservations is so
unclear that it is unsafe to assume that a non-objecting State "thinks that
a particular reservation is acceptable" (ibid., para. 17). Although the
Human Rights Committee was speaking about the International Covenant on
Civil and Political Rights, the same holds true for the Genocide Convention.
Because, as the Court itself has stated, the Genocide Convention, like other
human rights treaties, is not based on reciprocity between States, the fact
that the DRC did not object to Rwanda's reservation at the time it was made
has no bearing on the Court's ability to consider it. Hence, the DRC's
failure to object should not have been deemed sufficient to prevent the
Court from examining the issue of Rwanda's reservation on this occasion.
16. While the question of reservations to Article IX of the Genocide
Convention came up in the cases concerning Legality of Use of Force --
(Yugoslavia v. Spain) (Provisional Measures, Order of 2 June 1999, I.C.J.
Reports 1999 (II), p. 772, para. 32) and (Yugoslavia v. United States of
America)(Provisional Measures, Order of 2 June 1999(II), I.C.J. Reports
1999, p. 924, para. 24) -- the Court in those cases did not examine the
issue whether the reservations to Article IX by Spain and the United States
prevented the fulfilment of the object and purpose of the Convention,
because that precise issue was not raised by Yugoslavia. Since Yugoslavia
neither explicitly raised the issue nor alluded to it in its arguments, the
Court concisely concluded that it lacked jurisdiction under Article IX. Be
that as it may, the Court did however confirm that disputes relating to "the
interpretation, application or fulfilment" of the Convention included
disputes "relating to the responsibility of a State for genocide or for any
of the other acts enumerated in article III", even though in those cases the
acts complained of by Yugoslavia were incapable of coming within the
provisions of the Genocide Convention. In the present case, the fact that
the issue of the reservation was addressed by both Parties entitled the
Court to examine Rwanda's reservation in the light of the purpose and object
of the Convention.
17. Moreover, in considering this issue the Court should have taken due
account of the principle of good faith as it relates to the effect of the
Statement made by Rwanda, in the person of its Minister of Justice, before
the United Nations Commission on Human Rights:
"Rwanda is one of the countries that has ratified the greatest number of
international human rights instruments. In 2004 alone, [p 60] our Government
ratified ten of them, including those concerning the rights of women, the
prevention and repression of corruption, the prohibition of weapons of mass
destruction, and the environment. The few instruments not yet ratified will
shortly be ratified and past reservations not yet withdrawn will shortly be
withdrawn." (Sixty-first Session of the United Nations Commission on Human
Rights.)
Among the few instruments to which Rwanda had entered reservations,
reservations that were "shortly [to] be withdrawn", was the Genocide
Convention.
18. The Court made clear in the Nuclear Tests (Australia v. France) case
that:
"Just as the very rule of pacta sunt servanda in the law of treaties is
based on good faith, so also is the binding character of an international
obligation assumed by unilateral declaration. Thus interested States may
take cognizance of unilateral declarations and place confidence in them, and
are entitled to require that the obligation thus created be respected."
(Judgment, I.C.J. Reports 1974, p. 268, para. 46; Nuclear Tests (New Zealand
v. France), Judgment, I.C.J. Reports 1974, p. 473, para. 49.)
It would not be appropriate to regard Rwanda's declaration concerning its
reservation to the "most important" human rights and humanitarian treaty as
nothing more than political posturing devoid of legal effect.
19. This is all the more so given the principles underlying the Convention,
as well as the gravity of the present case, in which 3,500,000 Congolese
citizens are alleged to have been massacred on grounds of ethnicity.
20. As the Court stated in the Barcelona Traction, Light and Power Company,
Limited (Belgium v. Spain) case:
"By [its] very nature [the outlawing of genocide, aggression, slavery and
racial discrimination is] the concern of all States. In view of the
importance of the rights involved, all States can be held to have a legal
interest in their protection; they are obligations erga omnes." (Second
Phase, Judgment, I.C.J. Reports 1970, p. 32; emphasis added.)
21. Thirty years later, the Court confirmed its understanding of the object
and purpose of the Convention and concluded:
"It follows that the rights and obligations enshrined by the Convention are
rights and obligations erga omnes. The Court notes that the obligation each
State thus has to prevent and to punish the crime of genocide is not
territorially limited by the Convention." (Applica-[p 61]tion of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment, I.C.J.
Reports 1996 (II), p. 616, para. 31; emphasis added.)
Hence, in my judgment, a State which denies the Court's jurisdiction to
enquire into allegations alleging violation of the Convention would not be
lending the co-operation required to "liberate mankind from [the] . . .
odious scourge" of genocide or to fulfil the object and purpose of the
Convention. Denying recourse to the Court essentially precludes judicial
scrutiny into the responsibility of a State in a dispute relating to the
violation of the Convention.
22. This point is of particular cogency in this case concerning Rwanda, a
State where genocide took place and which justifiably called on the United
Nations Security Council to set up an international criminal tribunal to try
those who committed the crime against a section of its population. It will
thus not be in keeping with the spirit and objective of the Convention to
refuse to allow judicial consideration of the allegation of genocide
perpetrated in another country because Rwanda itself or its agents are
alleged to be responsible. While this is not to claim that the seriousness
of an obligation, the jus cogens status of a norm or the erga omnes nature
of an obligation per se confers jurisdiction on the Court, as was recognized
in the Judgment, it is nevertheless my opinion that it is incumbent on
Rwanda in this case, as a State party to the Genocide Convention -- and
which itself was a victim of genocide and rightly referred the matter to the
competent organ of the United Nations -- to allow scrutiny of the allegation
that it had breached its obligations under the Genocide Convention.
23. In its letter to the Secretary-General of 28 December 1994 regarding
this issue, Rwanda rightly stressed the gravity of the genocide which had
been committed on its territory and requested the "setting up as soon as
possible [of] an international tribunal to try the criminals". In the
request, Rwanda stated as follows:
"There is evident reluctance by the international community . . . to expose
and punish the criminals . . . still at large. This is tantamount to
diluting the question of genocide that was committed in Rwanda." (Letter
dated 28 September 1994 from the Permanent Representative of Rwanda to the
United Nations addressed to the President of the Security Council, United
Nations doc. S/1994/1115 (29 September 1994).)
Parallel reasoning would suggest that Rwanda's unwillingness to allow the
Court to scrutinize its alleged genocidal conduct in this case not only has
the same effect of diluting the question of genocide, a result which Rwanda
rightly criticized and sought to prevent, but in fact has an even more
drastic effect: denial of the question of genocide. In this connec-[p
62]tion, it is worth stressing that all human lives -- be they Rwandan,
Congolese, or of any other nationality -- are precious; offering redress to
some while denying it to others is neither in conformity with the
Convention, nor with justice; nor does it further the purposes and
principles of the United Nations Charter in respect of the peaceful
settlement of disputes. The spirit of the Convention as well as the letter
of the Convention must be respected at all times.
24. The allegation involving the commission of genocide is far too serious a
matter to be allowed to escape judicial scrutiny by means of a procedural
device. The nature of the Convention and gravity of the allegation dictate
that, wherever possible, it must be subject to judicial scrutiny. Inasmuch
as Rwanda was able to call on the international community to hold to account
those alleged to have committed genocide in Rwanda itself, it cannot
justifiably shield itself from enquiry in respect of the very kinds of acts
for which it succeeded in obtaining scrutiny by a competent organ. In other
words, it is neither morally right nor just for a State to shield itself
from judicial scrutiny under Article IX of the Convention in respect of acts
alleged to have taken place in the territory of a neighbouring State when
those acts constitute the very same conduct as that in response to which the
State successfully urged the establishment of an international tribunal for
the prosecution of persons responsible for genocide and other serious
violations of international humanitarian law.
25. It is indeed a principle of law that the jurisdictional basis of the
Court is consensual. In paragraph 21 of the Judgment the Court recalls that
such consent may take various forms. Among these is forum prorogatum, which
was explained not long ago by Judge ad hoc Lauterpacht in his separate
opinion in the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia
(Serbia and Montenegro)) case as follows:
"the possibility that if State A commences proceedings against State B on a
non-existent or defective jurisdictional basis, State B can remedy the
situation by conduct amounting to an acceptance of the jurisdiction of the
Court." (Provisional Measures, Order of 13 September 1993, I.C.J. Reports
1993, p. 416, para. 24, separate opinion of Judge Lauterpacht.)
While I do not accept the substance of the DRC's argument on this issue, I
do believe that the gravity of the matter and the nature of the allegation
before the Court are such that the Court should have been allowed to
adjudicate the case. There is no impediment in law preventing Rwanda from
expressing its consent and thereby entitling the Court to examine the
alleged breaches of Rwanda's obligations under the Genocide Convention. [p
26]
26. As can be seen from the foregoing, this opinion has, to a great extent,
drawn on the jurisprudence of the Court on the subject of the Genocide
Convention to show why the Court should have been able to exercise its
jurisdiction. The Court has over the years taken cognizance of the
importance of the Genocide Convention, has acknowledged the denial of
humanity that genocide -- described as the "crime of all crimes" --
represents, and has responded appropriately, declaring "the principles
underlying the Convention" to be "principles which are recognized by
civilized nations as binding on States, even without any conventional
obligation" (Application of the Convention on the Prevention and Punishment
of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary
Objections, Judgment, I.C.J. Reports 1996(II), p. 616, para. 31). In
reaching such profound conclusions, the Court, in my view, was reflecting
the gravity of the crime of genocide and the seriousness with which it, the
international community and mankind as a whole take the Convention. While
not denying the right of the States parties to the Convention to enter
reservations to Article IX, the Court, through its jurisprudence, has
stressed the unique nature of the Convention and the necessity for States to
respect their obligations under it. The Court's pronouncements fostered high
hopes and expectations that the object and purpose of the Convention would
be fulfilled. This case presented an opportunity for the Court to apply the
Convention and its principles.
27. It is thus this profound respect for the Court's earlier affirmations of
the principle underlying the Convention, its object and purpose, together
with the seriousness of the matter before it, which leads me to regret the
Court's conclusion that it is not entitled to take on the present case. In
my view, had the Court also, besides the Genocide Convention, taken a
different, but no less valid, view of the other instruments relied upon
including the Convention on the Elimination of All Forms of Discrimination
Against Women and the Montreal Convention for the Suppression of Unlawful
Acts against the Safety of Civil Aviation, it could have reached a different
conclusion with respect to its jurisdiction. My regret that the Court was
not able to do so explains my vote.
28. I have read with considerable interest the joint separate opinion of
Judges Higgins, Kooijmans, Elaraby, Owada and Simma. They have succinctly
reflected the essence of the judicial concern underlying this opinion,
namely, that it is a very grave matter for a State to shield itself from
international judicial scrutiny for
"any claim that might be made against it concerning genocide. A State so
doing shows the world scant confidence that it would never, ever, commit
genocide, one of the greatest crimes known" (p. 5, para. 25).
That concern could not have been more aptly stated. I also agree with the
joint opinion to the effect that in matters relating to the compatibility of
[p 64] a reservation with the object and purpose of a treaty, the reserving
State or States do not have the final word.
29. On the other hand, while not disagreeing with the view of the authors of
the joint opinion that Article IX of the Genocide Convention creates no
monitoring function involving the review of periodic reports by human rights
treaty bodies on States behaviour, I wish to reiterate that Article IX does
provide for the Court to adjudicate:
"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" (emphasis added).
The Article, in my view, therefore provides a basis for the Court, inter
alia, to enquire into State responsibility for genocide.
(Signed) Abdul G. KOROMA.
[p 65]
JOINT SEPARATE OPINION OF JUDGE HIGGINS, JUDGE KOOIJMANS, JUDGE ELARABY,
JUDGE OWADA AND JUDGE SIMMA
1. The Court has in paragraph 67 of its Judgment stated as follows:
"Rwanda's reservation to Article IX of the Genocide Convention bears on the
jurisdiction of the Court, and does not affect substantive obligations
relating to acts of genocide themselves under that Convention. In the
circumstances of the present case, the Court cannot conclude that the
reservation of Rwanda in question, which is meant to exclude a particular
method of settling a dispute relating to the interpretation, application or
fulfilment of the Convention, is to be regarded as being incompatible with
the object and purpose of the Convention."
2. We have voted in favour of the dispositif (paragraph 128). However, some
issues underlying paragraph 67 have concerned us greatly.
3. Our intention in this short opinion is twofold: to draw attention to the
significance of certain recent aspects of the Court's jurisprudence in the
matter of reservations; and to examine the underlying reason for the Court's
repeated finding that a reservation to Article IX of the Genocide Convention
is not contrary to the object and purpose of that treaty.
4. In recent years there has been a tendency for some States, and certain
commentators, to view the Court's 1951 Advisory Opinion on Reservations to
the Convention on the Prevention and Punishment of the Crime of Genocide as
stipulating a regime of inter-State laissez-faire in the matter of
reservations, in the sense that while the object and purpose of a convention
should be borne in mind both by those making reservations and those
objecting to them, everything in the final analysis is left to the States
themselves.
5. In our view a proper reading of the 1951 Advisory Opinion suggests that
this conclusion is too sweeping. The Court in 1951 was answering [p 66]
certain specific questions put to it by the General Assembly; what it said
has to be understood against that background.
6. There were three questions put to the Court, the first two of which have
relevance for present purposes. Problems had arisen, especially as regards
the depository functions of the United Nations Secretary-General, due to the
fact that objections had been made by some States parties to the Convention
to reservations made by other States. Although the questions put to the
Court were formulated in abstract terms, in reality they concerned
reservations that had been made relating to Article IX, which provides for
the jurisdiction of the Court to the settlement of disputes relating to the
Genocide Convention. The Court was asked (i) if a reserving State can be
regarded as a party to the Convention while still maintaining its
reservation, if the reservation is
objected to by one or more parties to the Convention but not by others, and
(ii) if so, what is the effect of a reservation as between the reserving
State and (a) the parties that objected to the reservation and (b) those
that accepted it. (I.C.J. Reports 1951, p. 16.)
7. These questions all started from the assumption that, although there was
no express provision in the Genocide Convention on this matter, reservations
could in principle be made. The Court satisfied itself from the travaux
preparatoires and other factors that reservations were indeed not in
principle prohibited (ibid., pp. 22-23). It then turned to the specific
question of "what kind of reservations may be made" (ibid., p. 23).
Emphasizing the special characteristics of the Genocide Convention, and the
desirability of universal adherence to it, the Court famously determined
that
"it is the compatibility of a reservation with the object and purpose of a
Convention that must furnish the criteria for the attitude of a State in
making the reservation on accession as well as for the appraisal by a State
in objecting to the reservation" (ibid., p. 24).
The Court did not accept that a reservation to a multilateral treaty was
conditional on the assent of all the parties (ibid., p. 25).
8. Turning to the second question, the Court found that
"[as] no State can be bound by a reservation to which it has not consented,
it necessarily follows that each State objecting to it will or will not, on
the basis of its individual appraisal within the limits of the criteria of
the object and purpose stated above, consider the reserving State to be a
party to the Convention" (ibid., p. 26).
9. The Court in 1951 was clearly not unaware of the hazards inherent in its
answers, in the sense that they would entail a veritable web of diverse
reciprocal commitments within the framework of a multilateral convention.
(See on this point the joint dissenting opinion of Judges Guer-[p 67]rero,
Sir Arnold McNair, Read and Hsu Mo, pp. 31 et seq.) The Court's Opinion
conceded that in a convention of this type "one cannot speak of individual
advantages or disadvantages to States, or of the maintenance of a perfect
contractual balance between rights and duties" (ibid., p. 23). And it
acknowledged that "the disadvantages which result from this possible
divergence of views . . . are real" (ibid., p. 26).
10. In the event, the problems which the Court could already envisage in
1951 have turned out to be vastly greater than it could have foreseen. The
Genocide Convention stood virtually alone in the sphere of human rights in
1951. Since then it has been added to by a multitude of multilateral
conventions, to which States have not hesitated to enter a plethora of
reservations -- often of a nature that gives serious concern as to
compatibility with the object and purpose of the treaty concerned. And the
vast majority of States, who the Court in 1951 envisaged would scrutinize
and object to such reservations, have failed to engage in this task. (There
are currently 28 reservations entered by States to the Genocide Convention,
with 18 States making objections, 57 States have entered reservations to the
International Convention on the Elimination of All Forms of Racial
Discrimination, with 26 States making objections; 75 States have entered
reservations to the Convention on the Elimination of All Forms of
Discrimination Against Women, with 18 States making objections; 58 States
have entered reservations to the International Covenant on Civil and
Political Rights, with 17 States making objections; 45 States have entered
reservations to the International Covenant on Economic, Social and Cultural
Rights, with ten States making objections, and 74 States have filed
reservations to the International Convention on the Rights of the Child,
with 13 States filing objections. (See records maintained by the Office of
the United Nations High Commissioner for Human Rights,
http://www.ohchr.org/English/bodies/index.htm, updated to 13 December
2005).)
11. The assumption of the Court in 1951 that "it is the compatibility of a
reservation with the object and purpose of the Convention that must furnish
the criterion for the attitude of a State in making the reservation on
accession as well as for the appraisal by a State in objecting to the
reservation" (ibid., p. 24), with a view to balancing the freedom to make
reservations and the scrutiny and objections of other States, has turned out
to be unrealized: a mere handful of States do this. For the great majority,
political considerations would seem to prevail.
12. The Court itself was not in 1951 asked to pronounce on the compatibility
of particular reservations to the Genocide Convention with its object and
purpose -- nor indeed whether its answers as to the role of States in making
and responding to reservations precluded it from doing [p 68] so. Since 1951
many other issues relating to reservations have emerged, that equally were
not and could not have been before the Court at that time. Among them are
whether, in particular, a role as regards assessment of compatibility with
object and purpose is to be assigned to monitoring bodies established under
United Nations multilateral human rights treaties. Another related question
not asked of the Court in 1951 concerns the scope of powers given to courts
at the centre of great human rights treaties, such as the Inter-American
Court on Human Rights, the European Court of Human Rights, and, for the
future, the African Court on Human and Peoples' Rights. The Court in 1951
had no occasion to address the application of the law of treaties to issues
of severability in the context of reservations to human rights treaties. And
the Vienna Convention on the Law of Treaties, concluded in 1969, is not
wholly unambiguous on these points especially in its Article 19. There are
many other issues concerning reservations that were not covered by the
Court's Advisory Opinion in 1951, either because they had not been put to
the Court or because they had not yet arisen in State practice.
13. The Court's Advisory Opinion in 1951 thus did not settle all matters
relating to reservations. To observe this reality is not to attempt to
fragment a mythical overarching law on all questions of reservations. The
Court's Advisory Opinion in 1951 set out the law as to what it was asked,
and no more; and did not foreclose legal developments in respect of hitherto
uncharted waters in the future.
14. The issue raised here relates to reservations generally, and not just
those to human rights treaties -- though this category has perhaps attracted
the greatest attention. There now exists a substantial practice and a vast
literature as regards many of these problems. A separate opinion attached to
a judgment of the Court is neither the time nor the place for a scholarly,
and inevitably very lengthy, assessment of this practice and literature. The
study of reservations to treaties, in all its complexity, is under
preparation in the International Law Commission. (On the issues under
consideration in this opinion, see, in particular, Second Report on
Reservations to Treaties, by Mr. Alain Pellet, Special Rapporteur, Report of
the International Law Commission, to the General Assembly on the work of its
Forty-ninth Session, Yearbook of the International Law Commission, Vol. II,
Part Two (1997), pp. 44-57 (Chapter V: "Reservations to Treaties"); Tenth
Report on Reservations to Treaties, by Mr. Alain Pellet, Special Rapporteur,
Report of the International Law Commission, Fifty-seventh Session, United
Nations docs. A/CN.4/558 (1 June 2005), A/CN.4/558/Add.1 (14 June 2005),
A/CN.4/558/Add.2 (30 June 2005).) [p 69]
15. In the meantime certain new trends in practice are also discernable.
Both the European Court of Human Rights, and the Inter-American Court of
Human Rights, have not followed the "laissez faire" approach attributed to
the International Court's Advisory Opinion of 1951; they have each
themselves pronounced upon the compatibility of specific reservations to the
European Convention on Human Rights and the American Convention on Human
Rights, respectively. They have not thought that it was simply a matter of
bilateral sets of obligations, left to individual assessment of the States
parties to the Convention concerned. (See in particular, Belilos v.
Switzerland, Judgment of 29 April 1988, 10 Eur. Ct. H.R. (Ser. A) (1988);
Loizidou v. Turkey, Judgment of 23 March 1995, Preliminary Objections, 310
Eur. Ct. H.R. (Ser. A) (1995); The Effect of Reservations on the Entry Into
Force of the American Convention, Advisory Opinion OC-2/82, Inter-Am, Ct.
Hum. Rts (Ser. A) No. 2 (1982); Restrictions to the Death Penalty; Advisory
Opinion OC-3/83, Inter-Am. Ct. Hum. Rts. (Ser. A) No. 3 (1983); see also
Rawle Kennedy v. Trinidad and Tobago, Human Rights Committee, Communication
No. 845, United Nations doc. CCPR/C/67D/845/1999 (31 December 1999).)
16. The Human Rights Committee in General Comment No. 24 (52) has sought to
provide some answers to contemporary problems in the context of the
International Covenant on Civil and Political Rights, with its analysis
being very close to that of the European Court of Human Rights and the
Inter-American Court. The practice of such bodies is not to be viewed as
"making an exception" to the law as determined in 1951 by the International
Court; we take the view that it is rather a development to cover what the
Court was never asked at that time, and to address new issues that have
arisen subsequently.
17. In 1999 the Court issued Orders dismissing the cases brought by
Yugoslavia against Spain and against the United States. The Court satisfied
itself with stating:
"Whereas the Genocide Convention does not prohibit reservations; whereas
Yugoslavia did not object to the United States reservation to Article IX;
and whereas the said reservation had the effect of excluding that Article
from the provisions of the Convention in force between the Parties." (See
Legality of Use of Force (Yugoslavia v. Spain), Provisional Measures, Order
of 2 June 1999, I.C.J. Reports 1999, p. 761, at p. 772, paras. 32 and 33,
and Legality of Use of Force (Yugoslavia v. United States), Provisional
Measures, Order of 2 June 1999, I.C.J. Reports 1999, p. 916, at p. 924,
paras. 24 and 25.)
18. Spain had contented itself with submitting that Article IX was
inapplicable in the mutual relations between Spain and Yugoslavia. The
United States, interestingly, had gone beyond this and contended that its [p
70] reservation was not contrary to the object and purpose of the
Convention. Yugoslavia (in contrast to the present case) had not introduced
any argument during the pleadings that the reservations were contrary to the
object and purpose of the Convention. So the Court did not pronounce on that
issue.
19. In its Order of 10 July 2002 in the present case, the Court did not
limit itself to recalling the fact that the Congo had not objected to
Rwanda's reservation. It sought also briefly to respond to various other
arguments made by the Congo including the claim that such a reservation was
contrary to the object and purpose of the Convention. In paragraph 72 the
Court stated that:
"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" (see Armed Activities
on the Territory of the Congo (New Application: 2002) (Democratic Republic
of the Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, I.C.J.
Reports 2002, p. 246, para. 72).
20. The Court thus added its own assessment as to the compatibility of
Rwanda's reservation with object and purpose of the Genocide Convention.
Paragraph 67 of the present Judgment contains no more generalized finding.
21. The Court has in the present Judgment on jurisdiction again gone beyond
noting a reservation by one State and a failure by the other to object. The
terms of paragraph 67 (quoted in paragraph 1 above) are not entirely
identical to the comparable paragraph 72 in the 2002 Order on provisional
measures. We believe it is now clear that it had not been intended to
suggest that the fact that a reservation relates to jurisdiction rather than
substance necessarily results in its compatibility with the object and
purpose of a convention. Much will depend upon the particular convention
concerned and the particular reservation. In some treaties not all
reservations to specific substantive clauses will necessarily be contrary to
the object and purpose of the treaty. Some such reservations to particular
substantive clauses in, for example, the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and
Cultural Rights, may be of this character. Conversely, a reservation to a
specific "procedural" provision in a certain convention, could be contrary
to the treaty's object and purpose. For example, the treaty bodies set up
under certain United Nations conventions may well be central to the whole
efficacy of those instruments. As the Human Rights Committee pointed out in
General Comment 24, the periodic submission of reports by States parties to
the Committee, and its examination thereof, are at the heart of the covenant
system. If a State purported to accept the substantive obligations of the
Covenant, but refused to report on them or to participate in the examination
of [p 71] States reports by the Committee, that could be contrary to the
object and purpose of the Covenant. The same might well be true of other
monitoring bodies in instruments whose whole efficacy turns upon the State
reporting system.
22. Human Rights courts and tribunals have not regarded themselves as
precluded by this Court's 1951 Advisory Opinion from doing other than noting
whether a particular State has objected to a reservation. This development
does not create a "schism" between general international law as represented
by the Court's 1951 Advisory Opinion, a "deviation" therefrom by these
various courts and tribunals.
23. Rather, it is to be regarded as developing the law to meet contemporary
realities, nothing in the specific findings of the Court in 1951 prohibiting
this. Indeed, it is clear that the practice of the International Court
itself reflects this trend for tribunals and courts themselves to pronounce
on compatibility with object and purpose, when the need arises.
***
24. We now turn to our second point. While we voted in favour of paragraph
128 of this Judgment, it has become apparent to us that some issues do
require further consideration.
25. It is a matter for serious concern that at the beginning of the
twenty-first century it is still for States to choose whether they consent
to the Court adjudicating claims that they have committed genocide. It must
be regarded as a very grave matter that a State should be in a position to
shield from international judicial scrutiny any claim that might be made
against it concerning genocide. A State so doing shows the world scant
confidence that it would never, ever, commit genocide, one of the greatest
crimes known.
26. Judicial settlement of claims relating to genocide is highly desirable.
At the same time, it cannot be said that the entire scheme of the Genocide
Convention would necessarily collapse if some States make reservations to
Article IX. Were it so, adherence to the jurisdiction of the Court could
have been made compulsory, as is now the case as regards the European
Convention on Human Rights in relation to the European Court of Human
Rights. The International Court in 1951 held that no prohibition against
reservations was to be inferred from the silence in the Genocide Convention
itself. Further, it did so fully aware that the reservations in question in
fact related to Article IX. In that context it may be recalled that the
Convention defines Genocide (Article II), and identifies acts that "shall be
punishable" (Article III). Articles IV to VII concern measures to be
undertaken by States to punish persons charged with genocide, primarily by
enacting legislation within their own territory. [p 72] There is also
reference to trial by "such international penal tribunal as may have
jurisdiction with respect to those Contracting Parties which shall have
accepted its jurisdiction". The International Court of Justice is clearly
not the penal tribunal envisaged to try and punish individuals.
27. No doubt these are the considerations that the Court has had in mind in
its findings, thus far, that a reservation to Article IX is not incompatible
with the objects and purposes of the Convention.
28. There are other elements, however, that continue to concern us. While
the Court is not a monitoring body under a treaty in the normal sense of
that term (that is to say, it does not receive obligatory reports from
States upon which it examines them for compliance), it nonetheless does have
an important role under the Genocide Convention. Under that Convention it is
States who are the monitors of each other's compliance with prohibition on
genocide. Article IX then gives a State who believes another State is
committing genocide the chance to come to the Court. Article IX speaks not
only of disputes over the interpretation and application of the Convention,
but over the "fulfilment of the Convention". Further, the disputes that may
be referred to the Court under Article IX "include[e] those relating to the
responsibility of a State for genocide".
29. It is thus not self-evident that a reservation to Article IX could not
be regarded as incompatible with the object and purpose of the Convention
and we believe that this is a matter that the Court should revisit for
further consideration.
(Signed) Rosalyn HIGGINS.
(Signed) Pieter H. KOOIJMANS.
(Signed) Nabil ELARABY.
(Signed) Hisashi OWADA.
(Signed) Bruno SIMMA.
[p 73]
DECLARATION OF JUDGE KOOIJMANS
1. I subscribe to the finding of the Court that it has no jurisdiction to
entertain the DRC's Application. I have serious doubts, however, as to the
appropriateness of one of the elements of the Court's conclusion that it
lacks jurisdiction under Article 29, paragraph 1, of the Convention on the
Elimination of All Forms of Discrimination Against Women. Since in my view
this issue transcends the scope of the present case, I wish to give
expression to my concerns in this respect.
2. Article 29, paragraph 1, of the Convention reads as follows:
"Any dispute between two or more States 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 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."
3. In the Judgment the Court observes that the Convention subjects its
jurisdiction to the following conditions: firstly, an unsuccessful attempt
must have been made to settle the dispute through negotiation; secondly, a
request for arbitration must have been submitted; and finally, a period of
six months must have elapsed from the date of that request (Judgment,
paragraph 87).
4. As for the first condition, the Court finds that
"the evidence has not satisfied the Court that the DRC in fact sought to
commence negotiations in respect of the interpretation or application of the
Convention" (Judgment, paragraph 91).
5. The Court evidently accepts the DRC's argument that such negotiations do
not necessarily have to take the form of bilateral negotiations but can also
take place in a multilateral context and be initiated on the basis of
protests or complaints brought to the attention of international [p 74]
institutions. In this respect the DRC has cited the complaint it referred on
24 February 1999 to the African Commission on Human and Peoples' Rights and
its many complaints, inter alia, about human rights violations, to the
Security Council. The Court's position in this respect is in line with its
previous pronouncement:
"Diplomacy by conference or parliamentary diplomacy has come to be
recognized in the past four or five decades as one of the established modes
of international negotiation." (South West Africa (Ethiopia v. South Africa;
Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J. Reports
1962, p. 346.)
6. In the view of the Court, these complaints are, however, unfit to be
considered as attempts to settle the dispute by negotiation in the sense of
Article 29, paragraph 1, of the Convention merely by virtue of the fact that
the DRC failed to refer explicitly to the Convention on Discrimination
Against Women in them.
7. I am of the view that this position of the Court is unrealistic, in
particular in the case of a multifaceted conflict like the present one. In
its complaints to the Security Council the DRC alleged violations by Rwanda
of a wide variety of legal norms dealing with the use of force, humanitarian
law and human rights law. In view of the character and mandate of the
international institutions to which these grievances were addressed, the
complaints could not be expected to itemize on a treaty-by-treaty basis the
provisions allegedly breached. By requiring the complainant nevertheless to
do so, the Court in actual fact makes it virtually impossible to
characterize such protests in a multilateral context as attempts to
negotiate as required by, inter alia, the compromissory clause in the
Convention on Discrimination Against Women.
8. In this respect it deserves mentioning that specific concern about the
rights of women was expressed by the international community. Resolution
2002/14 of 19 April 2002 of the United Nations Commission on Human Rights,
for instance, urged all parties to the conflict in the Democratic Republic
of Congo to respect, in particular, the rights of women and children.
9. Moreover, in the White Books it published during the years of the armed
conflict (1998-2002) the DRC had regularly complained of the violation of a
wide range of norms of international humanitarian and human rights law. A
number of specific examples of atrocities committed by Rwandese troops
against women were cited there. Rwanda, therefore, cannot have been unaware
that it was accused of the breach of multiple treaty-based human rights
norms, including norms providing for the protection of women. [p 75]
10. In this respect the present case resembles that concerning Military and
Paramilitary Activities in and against Nicaragua, in which the Court in its
Judgment on issues of jurisdiction and admissibility stated its view that
"it does not necessarily follow that, because a State has not expressly
referred in negotiations with another State to a particular treaty as having
been violated by conduct of that other State, it is debarred from invoking a
compromissory clause in that treaty. The United States was well aware that
Nicaragua alleged that its conduct was a breach of international law before
the present case was instituted; and it is now aware that specific articles
of the 1956 Treaty are alleged to have been violated." (I.C.J. Reports 1984,
p. 428, para. 83.)
11. I therefore disagree with the Court when it finds that the DRC cannot be
deemed to have sought to commence negotiations in respect of the
interpretation or application of the Convention, particularly in view of the
fact that the attempts to negotiate in this more general, multilateral
context did not lead to any positive response by the other party. I find the
Court's position unduly restrictive and not in line with its previous case
law, which reflects a certain flexibility with regard to the requirement of
prior negotiations.
12. It is quite another matter whether the alleged breaches of the
Convention on Discrimination Against Women are capable of falling within the
provisions of that instrument and whether, therefore, the dispute is one
which the Court has jurisdiction ratione materiae to entertain pursuant to
Article 29, paragraph 1, of the Convention. In the present case Rwanda has
submitted no arguments in this respect and the Court has made no finding on
this matter.
13. The foregoing observations hold good even more in light of the fact that
the second condition laid down in Article 29, paragraph 1 -- the request for
arbitration -- would have compelled the complainant to identify the specific
character of the dispute. A request for arbitration under Article 29
necessarily implies the specification of the treaty provision allegedly
breached.
14. It is this requirement -- that an attempt has been made to settle by
arbitration -- which is the key element of Article 29, paragraph 1. The
Court has no jurisdiction unless this condition has been met (see 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 Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 1998, p. 17, para. 21). Since the Court found no evidence that the
DRC attempted to initiate arbitration proceedings (Judgment, paragraph 92),
it could not but conclude that it has no jurisdiction under Article 29,
paragraph 1, of the Convention.
15. It may be regrettable that the threshold for bringing complaints to the
Court's attention by States parties about alleged breaches of human [p 76]
rights conventions by other States parties is set rather high by the
requirement that a number of preconditions must be met. This is true in
particular when a convention with a compromissory clause (like the present
one) does not contain a (parallel) procedure for State complaints to a body
established under that treaty. Yet the Court has no choice but to ascertain
whether a precondition, explicitly laid down by the Contracting States, is
met and to decline jurisdiction if it is not. The Convention does not,
however, set out any specific criteria for the element of "not settled by
negotiation". It leaves sufficient room to allow full consideration to be
given to the context of such (attempted) negotiations. The words "any
dispute concerning the interpretation or application of the present
Convention" in Article 29, paragraph 1, refer in a direct sense only to the
precondition of arbitration and thus only become relevant when negotiations,
in whatever form they have been conducted, have proved fruitless.
(Signed) P. H. KOOIJMANS.
[p 77]
SEPARATE OPINION OF JUDGE AL-KHASAWNEH
1. Whilst I have concurred with the Court's finding that "it has no
jurisdiction to entertain the Application filed by the Democratic Republic
of the Congo on 28 May 2002" (Judgment, paragraph 128), I continue to have
serious doubts regarding some elements in the Court's reasoning leading to
the conclusion that it has no jurisdiction under Article 29 of the
Convention on the Elimination of All Forms of Discrimination Against Women.
2. It is readily apparent that the consequences of that conclusion go beyond
the present case and affect not only the many compromissory clauses which
are
"rapidly replacing declarations accepting the compulsory jurisdiction of the
Court under Article 36 (2) as the primary method by which the Court gains
jurisdiction in contentious cases" (Jonathan I. Charney, Compromissory
Clauses and the Jurisdiction of the International Court of Justice, 81,
American Journal of International Law 855 (1987))
but also the very definition of what constitutes a dispute.
3. In view of this and of the fact that I find that conclusion
disconcerting, I feel that I should set out in this brief separate opinion
my views on this issue.
4. In paragraph 91 of the Judgment, the Court took note of the fact that:
"the DRC made numerous protests against Rwanda's actions in [p 78] alleged
violation of international human rights law, both at the bilateral level
through direct contact with Rwanda and at the multilateral level within the
framework of international institutions".
However the Court went on to conclude that:
"Whatever may be the legal characterization of such protests as regards the
requirement of the existence of a dispute between the DRC and Rwanda for
purposes of Article 29 of the Convention, that Article requires also that
any such dispute be the subject of negotiations. The evidence has not
satisfied the Court that the DRC in fact sought to commence negotiations in
respect of the interpretation or application of the Convention." (Judgment,
paragraph 91.)
5. In paragraph 79 of its Order of 10 July 2002 indicating provisional
measures the Court had already had a chance to reason that:
"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. . . concerned the application of Article 29 of the Convention
on Discrimination against Women; whereas nor has the Congo specified which
rights protected by the 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" (Armed Activities on the
Territory of the Congo (New Application: 2002)(Democratic Republic of the
Congo v. Rwanda), Provisional Measures, Order of 10 July 2002, p. 247, para.
79).
6. In other words, the Court acknowledged the DRC's attempts to enter into
negotiations or to undertake arbitration proceedings but was not satisfied
that those negotiations were "in respect of the interpretation or
application of the Convention" (Judgment, paragraph 91).
7. As the whole world knows, the dispute between the two neighbouring States
was not confined to the application or interpretation of the Convention on
Discrimination Against Women but encompassed wide-ranging and multifaceted
aspects, where, nevertheless, allegations of serious human rights abuses
permeated the entire dispute. In such a situation, should diplomatic
negotiations including "diplomacy by congress" (South West Africa (Ethiopia
v. South Africa; Libya v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 346) be compelled to itemize complaints on a
treaty-by-treaty basis? I am of the view that such a requirement would be
unrealistic as anyone reasonably acquainted with diplomatic negotiations
would agree. Much depends on [p 79] context. Complaints before the Security
Council are not usually compartmentalized on a treaty-by-treaty or
provision-by-provision basis. In addition, much would depend on the content
of the conventions in question. In a treaty on maritime delimitation, for
example, the very subject-matter would suggest, even compel, by its
technicality, very specific references to individual provisions. The same
might not be true in cases of allegations of human rights violations where a
general reference to human rights abuses might be sufficient.
The crucial consideration is that the substantive relevance of the
Convention on Discrimination Against Women seems obvious as the DRC has
included numerous allegations of rape and sexual assault of the most
horrible forms imaginable committed against thousands of Congolese women and
girls. The Committee on the Elimination of All Forms of Discrimination
Against Women had the following to say:
"General comments
6. The Convention in article 1 defines discrimination against women. The
definition of discrimination includes gender-based violence, that is,
violence that is directed against a woman because she is a woman or that
affects women disproportionately. It includes acts that inflict physical,
mental, or sexual harm or suffering, threats of such acts, coercion and
other deprivations of liberty. Gender-based violence may breach specific
provisions of the Convention regardless of whether those provisions
expressly mention violence." (General Recommendations, No. 19 (11th session,
1992).)
The Committee went on to describe gender-based violence which impairs the
enjoyment by women of human rights and fundamental freedoms as
discrimination within the meaning of Article 1 of the Convention and
referred specifically in that context to "the right to enjoy protection
according to humanitarian norms in time of international or internal armed
conflict" (ibid.).
8. To be sure this clear language emanating from the human rights body
charged with monitoring compliance with the Convention is not in itself
determinative of the matter nor does it relieve judges of the duty of
interpreting the provisions of the Convention with the aim of ascertaining
their substantive relevance to complaints alleging human rights violations
against women. Nevertheless it carries considerable weight.
9. What is more important is that the Court's own jurisprudence regarding
the interpretation of compromissory clauses is well-developed and favours a
broad interpretation of such provisions. It can be safely asserted that when
the applicant provides a "plausible" or "reasonable" argument that
substantive provisions of the treaty containing a compromissory clause have
been violated, the Court will not impose an [p 80] additional burden on the
applicant to establish that the dispute concerns the application of
interpretation of the treaty. This plausibility test was described in the
Ambatielos case of 1953 in the following terms:
"If it is made to appear that the [party] is relying upon an arguable
construction of the Treaty, that is to say, a construction which can be
defended, whether or not it ultimately prevails, then there are reasonable
grounds for concluding that its claim is based on the Treaty" (Ambatielos
(Greece v. United Kingdom), Merits, Judgment, I.C.J. Reports 1953, p. 18).
10. Indeed the suggestion is often made that the Court's jurisprudence
reveals a consistent willingness on the part of the Court to adjudicate on
subject-matter that is merely reasonably or tangibly connected to the treaty
containing the compromissory clause. For the purposes of this brief opinion
it would suffice to refer to one recent case, the Oil Platforms case where
the Court adjudicated on the whole of the law of force contained in the
United Nations Charter and customary international law in the context of the
interpretation or application of the compromissory clause (Oil Platforms
(Islamic Republic of Iran v. United States of America), Judgment, I.C.J.
Reports 2003; Art. X, para. 1, of the 1955 Treaty and the exception thereto,
Art. XX, para. 1 (d) 1).
11. In the present case the subject-matter of the dispute is directly
related to the substantive provisions of the treaty, i.e., the allegation of
widespread violence directed against women.
12. I have indicated earlier (paragraph 7) that as a matter of diplomatic
negotiations the requirement that reference be made to a particular treaty
or provisions thereof is unrealistic and I would also, with reference to the
Court's jurisprudence, venture the opinion that it is not required, provided
of course, a link exists between substantive provisions of the treaty in
question and the dispute. It would be recalled that in the Nicaragua case a
similar claim regarding the requirement of prior negotiations was made by
the United States in the following terms:
"Since . . . Nicaragua has never even raised in negotiations with the United
States the application or interpretation of the Treaty to any of the factual
or legal allegations in its Application, Nicaragua has failed to satisfy the
Treaty's own terms for invoking the compromissory clause." (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984,
pp. 427-428.)
The Court dismissed this objection and stated:
"In the view of the Court, it does not necessarily follow that, because a
State has not expressly referred in negotiations with another State to a
particular treaty as having been violated by conduct of that other State, it
is debarred from invoking a compro-[p 81] missory clause in that treaty. The
United States was well aware that Nicaragua alleged that its conduct was a
breach of international obligations before the present case was instituted;
and it is now aware that specific articles of the 1956 Treaty are alleged to
have been violated." (Ibid.)
13. In conclusion, whilst the requirement of prior negotiations is a prior
condition that has to be met in determining the limits of consent to submit
to the jurisdiction of the Court, the manner in which these negotiations
take place is ultimately a matter of form and there are no general
requirements that negotiations should be itemized. Nor that they should
refer expressly to a particular treaty. The decisive factor will seem to be
the relevance of the substantive provisions of the treaty in question to the
subject-matter of the dispute. An attempt by the DRC to enter into
negotiations bilaterally or multilaterally with Rwanda with regard to the
alleged human rights violations against women should suffice to meet the
requirement of prior diplomatic negotiations under Article 29 of the
Convention on the Elimination of All Forms of Discrimination Against Women.
The complaint referred by the DRC on 24 February 1999 to the African
Commission on Human and Peoples' Rights as well as its complaints to the
Security Council in which it referred to human rights abuses would meet the
requirement of attempting to enter into prior negotiations for the purposes
of Article 29.
14. Having reached this conclusion, I should nevertheless recall that, in
addition to the requirements of prior negotiations, Article 29 of the
Convention on Discrimination Against Women contains other conditions
precedent, namely the undertaking of arbitral proceedings and the lapse of
six months before referral to the Court. With respect to arbitration and
notwithstanding the confusing language of paragraph 79 of the 2002 Order,
which spoke of the DRC's "attempts to enter into negotiations or undertake
arbitration proceedings with Rwanda", there is nothing that would enable me
to conclude "that the DRC made a proposal to Rwanda that arbitration
proceedings should be organized, and that the latter failed to respond
thereto" (Judgment, paragraph 92). It is on this basis that I concurred with
the judgment that the Court lacks jurisdiction.
(Signed) Awn AL-KHASAWNEH.
[p 82]
DECLARATION OF JUDGE ELARABY
1. I have voted with a degree of reluctance in favour of the Judgment that
the Court has no jurisdiction to entertain the Application of the Democratic
Republic of the Congo. While I accept the findings and conclusions therein
as consistent with the Statute and hence sound in law, I do firmly believe
that States, in general, should not be permitted to evade international
judicial scrutiny regarding a crime as grave as genocide. The Court's
inability to examine the merits due to jurisdictional limitations cogently
demonstrates a major weakness in the contemporary international legal
system. I have therefore joined other judges in a separate opinion which
examines certain aspects of the Court's jurisprudence in the matter of
reservations. In addition, I consider it appropriate to append a brief
declaration to elaborate further on some other aspects relating to the
jurisdiction of the Court.
2. In the instant case, the Court was precluded, by virtue of the nature and
limitations of the international legal system as it exists today, from the
appropriate administration of justice. As a result, the Court has not been
able to examine the merits of the claims of the Democratic Republic of the
Congo. This inability is compounded by the fact that the case forms part of
a series of cases brought before the Court by the Democratic Republic of the
Congo relating to armed activities of neighbouring States on its territory.
Although these cases are related and, to a considerable extent, the facts,
circumstances and situations at issue overlap, they are nonetheless distinct
cases, each brought upon its own grounds for jurisdiction and giving rise to
its own legal considerations. The Court referred to this fact in the
Judgment by stating that:
"The Court notes first of all that at the present stage of the proceedings
it cannot consider any matter relating to the merits of this dispute between
the DRC and Rwanda. In accordance with the deci-[p 83]sion taken in its
Order of 18 September 2002 (see paragraph 6 above), the Court is required to
address only the questions of whether it is competent to hear the dispute
and whether the DRC's Application is admissible." (Judgment, para. 14.)
3. This is particularly clear in relation to the jurisdictional bases upon
which the Court has been asked to examine the individual cases. In the case
concerning Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), both States had made declarations of
acceptance of compulsory jurisdiction in accordance with Article 36,
paragraph 2, of the Statute. The case was brought on the basis, inter alia,
of the Charter of the United Nations, the Charter of the Organization of
African Unity and other multilateral treaties to which both States were
parties. The Court thus proceeded to a full examination of the case on its
merits, delivering its Judgment on 19 December 2005. In the instant case,
however, while the Democratic Republic of the Congo has accepted the
compulsory jurisdiction, Rwanda has not. Thus the Democratic Republic of the
Congo has instead invoked the dispute settlement clauses of a number of
multilateral conventions as the basis for establishing jurisdiction in these
proceedings.
4. In the Court's Judgment, it examines each individual basis of
jurisdiction asserted by the Democratic Republic of the Congo. The Court has
found that none of these suggested bases would establish jurisdiction. In
each case, it has given reasons supporting its findings. Thus, the Court has
been unable to proceed to the merits of the case at hand.
5. The Court has made such a finding even though it acknowledges that the
allegations made by the Democratic Republic of the Congo are of a most
serious nature. This seriousness has already been acknowledged in the
Court's Order of 10 July 2002 on the request for the indication of
provisional measures (Armed Activities on the Territory of the Congo (New
Application: 2002)(Democratic Republic of the Congo v. Rwanda), Provisional
Measures, Order of 10 July 2002, I.C.J. Reports 2002, pp. 240-241, paras.
54-56 and pp. 249-250, para. 93).
6. At the provisional measures stage, the Court stated:
"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" (Armed Activities on the Territory of the Congo (New
Application: 2002)(Democratic Republic of the Congo v. Rwanda), Provisional
Measures, Order of 10 July 2002, I.C.J. Reports 2002, p. 249, para. 92).
This distinction must be reiterated today. This is all the more so in the [p
84] light of the Court's Judgment of 19 December 2005 in the case concerning
Armed Activities on the Territory of the Congo (Democratic Republic of the
Congo v. Uganda). That case highlighted the complexity of the circumstances
in the Great Lakes region and the role of all States in the region in the
instability and turmoil which are at the heart of the claims advanced by the
Democratic Republic of the Congo. Yet it is crucial to note that, whereas in
the case concerning Uganda, the Court clearly had jurisdiction on the basis
of the declarations of both States accepting compulsory jurisdiction under
Article 36, paragraph 2, in the instant case -- by way of contrast -- no
such jurisdiction exists. Thus, the Court is not competent to examine the
merits and accordingly must not prejudge the substantive issues of
international law asserted by the Democratic Republic of the Congo.
7. At present, the jurisdiction of the Court in particular, and
international adjudication in general, is of a consensual nature. Consent is
its cornerstone and can manifest itself through a declaration under Article
36, paragraph 2, of the Statute, an appropriate compromissory clause in a
treaty, special agreement or even through tacit acceptance referred to as
forum prorogatum. Without such consent, however, the Court has no
jurisdiction to examine the merits of a particular case.
8. The promise and possibilities of the Court, as the principal judicial
organ of the United Nations entrusted with the responsibility of settling
disputes, requires that States submit their disputes to the Court and accept
its jurisdiction. The duty of States to settle their disputes peacefully and
in accordance with international law is emphasized in a number of important
provisions enshrined in the Charter of the United Nations. Efforts to
realize the objective of wider acceptance of the compulsory jurisdiction of
the Court have been exerted on many occasions in recent years. The Manila
Declaration on the Peaceful Settlement of International Disputes was adopted
by the General Assembly on 15 November 1982 (A/RES/37/10) with a particular
emphasis on the importance of States recognizing the compulsory jurisdiction
of the Court. In 1992 the then Secretary-General, Boutros-Ghali, in his
Agenda for Peace Report called on all Member States to accept the "general
jurisdiction of the International Court under Article 36 of its Statute,
without any reservation, before the end of the United Nations Decade of
International Law in the year 2000" (An Agenda for Peace: Preventive
Diplomacy, Peacemaking and Peace-keeping, Report of the Secretary-General
adopted by a summit meeting of the Security Council on 31 January 1992,
A/47/277-S/24111, para. 39).
9. More recently, Secretary-General Kofi Annan has called on States to
submit to the compulsory jurisdiction of the Court. In his 2001 Report on
the Prevention of Armed Conflict, he "reiterated [his] appeal to [p 85]
Member States who have not yet done so to consider accepting the compulsory
jurisdiction of the Court" (Prevention of Armed Conflict, Report of the
Secretary-General, 7 June 2001, A/55/985, S/2001/574, para. 48). He
continued: "the more States that accept compulsory jurisdiction of the
Court, the higher the chances that potential disputes can be expeditiously
resolved through peaceful means" (ibid., para. 48). Recommendation 6 of this
Report "urged Member States to accept the general jurisdiction of the Court"
(ibid., para. 50). Thus, while consent forms the cornerstone of the system
of international adjudication, States have a duty under the Charter to
settle their disputes peacefully. Recognition of the compulsory jurisdiction
of the Court fulfils this duty.
10. Some built-in limitations of the Statute, resonant of limitations of the
international legal system generally, are relics of a past era which need to
be revisited. The case before the Court today represents a clear reflection
of these limitations. It [9] serves as a reminder to the international
community in the twenty-first century of the imperative of actively seeking
to overcome the hurdles in establishing jurisdiction. The Court may thereby
play a stronger role in the peaceful settlement of international disputes
and in enhancing respect for international law among States, thus
contributing in fact
"to bring[ing] about by peaceful means, and in conformity with the
principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the
peace" (Article 1, paragraph 1, of the Charter of the United Nations).
(Signed) Nabil ELARABY.
[p 86]
SEPARATE OPINION OF JUDGE AD HOC DUGARD
1. The Democratic Republic of the Congo (hereinafter the DRC) has failed to
show that the Court has jurisdiction to hear the present Application, either
in terms of the compromissory clauses of several treaties that it claims
have been violated by Rwanda or in terms of a number of other bases for
jurisdiction that it has advanced. In these circumstances I agree fully with
the decision of the Court that it has no jurisdiction to entertain the
Application filed by the DRC on 28 May 2002.
2. There are, however, two issues on which I wish to add some comments of my
own. First, as this is the first occasion on which the Court has expressly
acknowledged the existence of peremptory norms (jus cogens), I wish to
examine, albeit in a tentative manner, the role that jus cogens may play in
international litigation and the limits that must be placed on its use, with
special reference to the present Application. Secondly, I wish to comment on
the subject of negotiations within the political organs of the United
Nations for the purpose of satisfying the requirement in a compromissory
clause for the exercise of jurisdiction that a dispute must be shown to be
not capable of settlement by negotiation.
Jus cogens in international litigation
3. The DRC has sought to invoke the jurisdiction of the Court on the basis
of a number of arguments premised on the violation of peremptory norms (jus
cogens) by Rwanda. These arguments, in essence, may be reduced to two.
First, the allegation of the violation of a norm of jus cogens per se
confers jurisdiction on the Court. Secondly, where a violation of a norm of
jus cogens is alleged, the respondent State cannot [p 87] raise a
reservation to the Court's jurisdiction to defeat that jurisdiction. In such
a case, jus cogens in effect trumps the reservation. Aware, no doubt, of the
novelty and far-reaching implications of its argument, the DRC has urged the
Court to act "boldly and creatively". The Court has responded boldly by
acknowledging the existence of norms of jus cogens but it has, rightly,
declined the DRC's invitation to go beyond this. Instead it has, correctly
in my judgment, rejected the DRC's submissions in holding that the fact that
a dispute relates to compliance with a peremptory norm, such as genocide,
cannot of itself provide a basis for the Court's jurisdiction; and that a
reservation to the Court's jurisdiction cannot be held to be invalid on the
ground that it violates a norm of jus cogens. In so finding the Court has
emphasized that its jurisdiction is based on consent and that no peremptory
norm requires States to consent to jurisdiction where the compliance with a
peremptory norm is the issue before the Court.
4. This is the first occasion on which the International Court of Justice
has given its support to the notion of jus cogens. It is strange that the
Court has taken so long to reach this point because it has shown no
hesitation in recognizing the notion of obligation erga omnes, which
together with jus cogens affirms the normative hierarchy of international
law. Indeed, the Court itself initiated the notion of obligation erga omnes
in 1970 in the Barcelona Traction case (Barcelona Traction, Light and Power
Company, Limited, (Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports
1970, p. 32) and has recently confirmed its adherence to the notion in its
Advisory Opinion in the case concerning Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory (I.C.J. Reports
2004, p. 136, para. 155). Until the present Judgment the Court carefully and
deliberately avoided endorsing the notion of jus cogens despite the many
opportunities it had to do so. In 1969 it refrained from pronouncing "on any
question of jus cogens" (North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J.
Reports 1969, p. 42, para. 72); in 1986 it acknowledged that the
International Law Commission had found the prohibition on the use of force
to have the character of jus cogens, but declined to align itself with this
position (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports
1986, p. 258, para. 83); and in 2002 it failed to respond to an argument
that the granting of immunity to a Foreign Minister for crimes against
humanity violated a norm of jus cogens (Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports
2002, pp. 23-26). Despite this, jus cogens has been invoked by individual
judges in cases before the Court in separate and dissenting opinions going
back to the 1960s. In 1960, in a dissenting opinion in the Right of Passage
case, Judge ad hoc Fernandes referred to the "rules of ius cogens, over
which no special practice can prevail" (Right of Passage over Indian Te-[p
88]rritory (Portugal v. India), Merits, Judgment, I.C.J. Reports 1960, p.
135). Then in 1966, in his dissenting opinion in the South West Africa
cases, Judge Tanaka declared:
"If we can introduce in the international field a category of law, namely
jus cogens examined the International Law Commission, a kind of imperative
law which constitutes the contrast to the jus dispositivum, capable of being
changed by way of agreement between States, surely the law concerning the
protection of human rights may be considered to belong to the jus cogens."
(South West Africa, (Ethiopia v. South Africa; Liberia v. South Africa),
Second Phase, Judgment, I.C.J. Reports 1966, p. 298.)
5. The failure of the International Court to endorse or pronounce on the
subject of jus cogens has not gone unnoticed. Its silence has been
aggravated by the fact that both other international tribunals (Al-Adsani v.
United Kingdom, 123 International Law Reports 24 (European Court of Human
Rights); Prosecutor v. Furundzija, IT-95-17/1-T, paras. 153-156, 121
International Law Reports 214, 260 (International Criminal Tribunal for the
former Yugoslavia)) and national courts (see, for example, R. v. Bow Street
Metropolitan Stipendiary Magistrate: Ex Parte Pinochet Ugarte (No. 3) [1999]
2 All ER 97 (HL); Ferrini v. Federal Republic of Germany (Italian Court of
Cassation), 11 March 2004; (2005) 99 American Journal of International Law
242) have invoked the term jus cogens to portray higher norms of
international law.
6. The approval given to jus cogens by the Court in the present Judgment is
to be welcomed. However, the Judgment stresses that the scope of jus cogens
is not unlimited and that the concept is not to be used as an instrument to
overthrow accepted doctrines of international law.
7. The Court's endorsement of jus cogens raises the question of the future
role of jus cogens and the legal consequences to be attached to a violation
of jus cogens for, as Ian Brownlie states, "many problems of application
remain" in respect of jus cogens (Principles of Public International Law,
6th ed. (2003), p. 490).
8. It is today accepted that a treaty will be void if at the time of its
conclusion, it conflicts with "a peremptory norm of general international
law" (Art. 53 of the Vienna Convention on the Law of Treaties of 1969); and
that States must deny recognition to a situation created by the serious
breach of a peremptory norm (Arts. 40 and 41 of the Draft Articles on the
Responsibility of States for Internationally Wrongful Acts, Report of the
International Law Commission, United Nations, Official Records of the
General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10) 29
(2001)). Moreover, it has been suggested that a Security Council resolution
will be void if it conflicts with a norm of jus cogens (see the [p 89]
separate opinion of Judge ad hoc Sir Elihu Lauterpacht in the case
concerning the 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 13 September 1993,
I.C.J. Reports 1993, p. 440, para. 100). Jus cogens does, however, have a
less spectacular role to play in the judicial process and it is this role
that becomes important now that the Court has finally recognized the
existence of peremptory norms.
9. In national law there is a wealth of literature on judicial lawmaking and
the nature of the judicial process. International law, on the other hand, is
characterized by a dearth of literature on this subject. (Cf. Hersch
Lauterpacht, The Development of International Law by the International Court
(1958).) This explains why little attention has been paid to the place of
jus cogens in the judicial process despite the pivotal role that it could --
and should -- play.
10. The judicial decision is essentially an exercise in choice. Where
authorities are divided, or different general principles compete for
priority, or different rules of interpretation lead to different
conclusions, or State practices conflict, the judge is required to make a
choice. In exercising this choice, the judge will be guided by principles
(propositions that describe rights) and policies (propositions that describe
goals) in order to arrive at a coherent conclusion that most effectively
furthers the integrity of the international legal order.
Norms of jus cogens are a blend of principle and policy. On the one hand,
they affirm the high principles of international law, which recognize the
most important rights of the international order -- such as the right to be
free from aggression, genocide, torture and slavery and the right to
self-determination; while, on the other hand, they give legal form to the
most fundamental policies or goals of the international community -- the
prohibitions on aggression, genocide, torture and slavery and the
advancement of self-determination. This explains why they enjoy a
hierarchical superiority to other norms in the international legal order.
The fact that norms of jus cogens advance both principle and policy means
that they must inevitably play a dominant role in the process of judicial
choice.
11. Several decisions of the International Court in which the Court might
have invoked norms of jus cogens, but did not, illustrate the type of case
in which norms of jus cogens might be employed. The Judgment of the Court in
the South West Africa cases (South West Africa (Ethiopia v. South Africa;
Liberia v. South Africa), Second Phase, Judgment, I.C.J. Reports 1966, p. 6)
is an obvious example of such a case. There the Court was faced with a
choice between the principle that a State must demonstrate a special,
national, interest in the proceedings before the Court to enjoy legal
standing and the "sacred trust of civilization" contained in the Mandate for
South West Africa to promote to the utmost [p 90] the well-being of the
inhabitants of the territory. In preferring the former principle it chose
not to accede to the higher norm; with serious consequences for the Court.
In fairness, it must be added that this decision largely predated the
recognition of norms of jus cogens although Judge Tanaka in his powerful
dissenting opinion did refer to such norms (see above, para. 4).
Other cases in which norms of jus cogens might possibly have been invoked
were East Timor ((Portugal v. Australia), Judgment, I.C.J. Reports 1995, p.
90) and the Arrest Warrant case (Arrest Warrant of 11 April 2000 (Democratic
Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p. 3).
In the former, the Court declined to apply its decision in the Certain
Phosphate Lands case (Certain Phosphate Lands in Nauru (Nauru v. Australia),
Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 261-262) and
instead preferred the controversial precedent of the Monetary Gold case
(Monetary Gold Removed from Rome in 1943, (Italy v. France, United Kingdom
of Great Britain and Northern Ireland and United States of America),
Judgment, I.C.J. Reports 1954) above the peremptory norm of
self-determination, which was described as a norm of erga omnes rather than
jus cogens by the Court in its decision at page 102. The Court has recently
retreated from the Monetary Gold case and instead relied on the Certain
Phosphate Lands in Nauru case in the case concerning Armed Activities on the
Territory of the Congo ((Democratic Republic of the Congo v. Uganda),
Judgment of 19 December 2005, para. 203). Although the Court did not
indicate that its choice was influenced by the fact that norms of jus cogens
were involved in this case, it may safely be assumed that the gravity of the
issues raised influenced the Court's choice.
In the Arrest Warrant case the Court found that a Foreign Minister enjoyed
immunity before a national court in respect of crimes against humanity on
the basis of weak evidence of State practice rather than allowing the jus
cogens character of the crime to prevail over the plea of immunity (see the
dissenting opinions of Judge Al-Khasawneh and Judge ad hoc van den Wyngaert
in the Arrest Warrant case (I.C.J. Reports 2002, p. 98, para. 7, and p. 155,
para. 28, respectively), which advocate the choice of the jus cogens norm of
the prohibition of crimes against humanity over the unsettled rule of
immunity).
12. In the above cases the Court was faced with competing principles, State
practice and precedents and preferred not to choose that solution which gave
effect to a norm of jus cogens. The Court was not asked to invoke jus cogens
to trump an established, accepted rule but instead to choose a principle of
jus cogens or a precedent coinciding with a norm of jus cogens in preference
to a principle, State practice or precedent that did not enjoy the status of
jus cogens. It was simply asked to exercise its [p 91] choice within the
interstices of the law in a molecular rather than a molar fashion. FN1
---------------------------------------------------------------------------------------------------------------------
FN1
See the statement of Justice Oliver Wendell Holmes:
"I recognize without hesitation that judges do and must legislate, but they
can do so only interstitially, they are confined from molar to molecular
motions." (Southern Pacific Co. v. Jensen, 244 US 205 at 221(1916).)
---------------------------------------------------------------------------------------------------------------------
13. In the present case the Court is confronted with a very different
situation. The Court is not asked, in the exercise of its legitimate
judicial function, to exercise its choice between competing sources in a
manner which gives effect to a norm of jus cogens. On the contrary, it is
asked to overthrow an established principle -- that the basis of the Court's
jurisdiction is consent -- which is founded in its Statute (Art. 36),
endorsed by unqualified State practice and backed by opinio juris. It is, in
effect, asked to invoke a peremptory norm to trump a norm of general
international law accepted and recognized by the international community of
States as a whole, and which has guided the Court for over 80 years. This is
a bridge too far. The Court cannot be expected to accept the arguments
raised by the DRC for by so doing it would not engage in molecular
law-making, but molar law-making that goes beyond the legitimate judicial
function. Only States can amend Article 36 of the Court's Statute.
14. For this reason the Court, in the present instance, has rightly held
that although norms of jus cogens are to be recognized by the Court, and
presumably to be invoked by the Court in future in the exercise of its
judicial function, there are limits to be placed on the role of jus cogens.
The request to overthrow the principle of consent as the basis for its
jurisdiction goes beyond these limits. This, in effect, is what the Court
has held.
Negotiations within the United Nations and other international bodies
15. The DRC claims that the Court has jurisdiction in terms of Article 29 of
the Convention on the Elimination of All Forms of Discrimination Against
Women in that there is a dispute between it and Rwanda concerning the
interpretation and application of the Convention, which cannot be settled by
negotiation. It argues that it has made frequent protests about Rwanda's use
of force in the region and its violation of human rights before the
political organs of the United Nations and other international bodies. In
support of its contention that these protests and complaints about Rwanda's
actions within the political organs of the United Nations and other
international bodies [p 92] satisfy the requirement of negotiation, the DRC
invokes the ruling of the Court in 1962 in the South West Africa cases when
it stated:
"Moreover, diplomacy by conference or parliamentary diplomacy has come to be
recognized in the past four or five decades as one of the established modes
of international negotiation. In cases where the disputed questions are of
common interest to a group of States on one side or the other in an
organized body, parliamentary or conference diplomacy has often been found
to be the most practical form of negotiation." (South West Africa (Ethiopia
v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, p. 346.)
16. There is an important difference between the South West Africa cases and
the present case. In the former case it was quite clear to all States
participating in the "conference or parliamentary diplomacy" within the
United Nations that the dispute related to the Mandate for South West
Africa, more particularly to the questions whether South Africa was obliged
to account to the United Nations for its administration of the territory in
terms of the Mandate, and whether it had violated Article 2 of the Mandate
requiring it to "promote to the utmost the material and moral well-being and
the social progress of the inhabitants of the Territory" by applying the
policy of apartheid within the Territory. For ten years or more these issues
had constituted the focus of debates within the United Nations.
17. In the present case, on the other hand, the DRC has failed to indicate
with precision the nature of its complaint within the context of the
Convention on the Elimination of All Forms of Discrimination Against Women.
It has made sweeping allegations of Rwanda's use of force and violations of
human rights in general without, in most instances, indicating which
particular human rights convention it alleges has been violated. Nor has it
indicated which of the 15 substantive provisions in the Convention on the
Elimination of All Forms of on Discrimination Against Women Rwanda is
alleged to have violated. The substantive provisions in this Convention
oblige States parties to abolish discriminatory measures against women
within their own legal systems by adopting legislation to ensure gender
equality (Arts. 2, 2-3, 15); by pursuing affirmative action programmes for
women (Art. 4); by eliminating social and cultural discrimination against
women (Art. 5); by suppressing traffic in women (Art. 6); by eliminating
discrimination against women in political life and in participation in
government (Arts. 7 and 8); by protecting the right to nationality of women
(Art. 9); by ensuring equal rights for women in education, employment,
health care and economic life (Arts. 10-13); by promoting the position of
women in rural areas [p 93] (Art. 14); and by eliminating discrimination
against women in marriage and family relations (Art. 16). None of these
provisions, it seems, is relevant to the present dispute. Instead the nature
of the DRC's allegation against Rwanda relate to acts of violence, including
sexual violence, against women, not within the territory of Rwanda but
within the territory of the DRC. Without in any way minimizing the gravity
or seriousness of these allegations, it should be stressed that they raise
issues pertaining to other human rights conventions -- such as the
Convention against Torture (to which Rwanda is not a party) and the
International Covenant on Civil and Political Rights (which is not claimed
as a basis for jurisdiction in the present proceedings) -- and to
international humanitarian law.
18. The fact that the DRC's allegations relating to the violation of the
rights and personal integrity of women relate to human rights conventions
other than the Convention on the Elimination of All Forms of Discrimination
Against Women, probably explains why this Convention was not the subject of
protest and complaint -- that is "conference or parliamentary diplomacy" --
in the United Nations or other international bodies. As these Conventions do
not provide a basis for the Court's jurisdiction, the DRC has felt itself
compelled to invoke the compromissory clause in the Convention on the
Elimination of All Forms of Discrimination Against Women as a basis for
jurisdiction in this matter. However, this invocation of jurisdiction is
misplaced. First, it is doubtful whether the allegations in question
relating to the mistreatment of women fall within the ambit of the
Convention; secondly, even if they do in some way violate its provisions, it
is clear that the DRC's protests and allegations of violence against women
before the United Nations and other international bodies have not been
premised on the violation of this Convention in particular, but on the
violation of general human rights law and other human rights Conventions.
This means that there have been no negotiations in the form of "conference
or parliamentary diplomacy" within the United Nations or other international
bodies on the subject of the Convention on the Elimination of All Forms of
Discrimination Against Women. Accordingly, the DRC has failed to show that
any dispute between the Parties relating to this particular Convention has
been the subject of negotiation and that the dispute is one that cannot be
settled by negotiation within the meaning of Article 29 of the Convention.
19. A party that wishes to rely on "conference or parliamentary diplomacy"
in the political organs of the United Nations as evidence that it has
engaged in negotiations for the purpose of satisfying the require-[p
94]ments of a compromissory clause must at least show that it has clearly
identified the Convention in question, and should be able to show that it
has indicated, albeit in broad terms, the nature of the violation it alleges
has occurred.
(Signed) John DUGARD.
[p 95]
DISSENTING OPINION OF JUDGE AD HOC MAVUNGU
[Translation]
Introduction
1. In its Order of 10 July 2002 on the request for the indication of
provisional measures (Armed Activities on the Territory of the Congo (New
Application: 2002) (Democratic Republic of the Congo v. Rwanda), I.C.J.
Reports 2002, p. 219), the Court dismissed both Parties' claims, holding
that the necessary conditions for the indication of provisional measures
(urgency, safeguard of the parties' rights, non-aggravation of the dispute,
prima facie jurisdiction of the Court) did not exist in the present case. It
likewise rejected the Republic of Rwanda's submission that the case should
be removed from the Court's List.
The balance achieved by the Court in 2002 has now been lost as a result of
the Judgment on the preliminary objections. Just as I was of the opinion
that the Court could have indicated certain provisional measures in reliance
on certain of the bases of jurisdiction invoked by the Democratic Republic
of the Congo (DRC), so I believe that, at this stage of the proceedings, the
Court could have established its jurisdiction and addressed the merits of
the case.
2. Neither the general public nor specialist commentators will understand
how the Court could arrive at two opposing rulings in two cases sharing the
same characteristics. There can be no doubt whatsoever that the DRC
nourishes the same grievances against Uganda as it does against Rwanda. For
no apparent reason, Uganda's counsel espoused Rwanda's cause:
"the requests of the Democratic Republic of the Congo relating to activities
or situations involving the Republic of Rwanda or its agents are
inadmissible..."(Armed Activities on the Territory of the Congo (Democratic
Republic ofthe Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 186,
para. 24).
3. When delivering its Judgment on 19 December 2005 in the case between the
DRC and Uganda, the Court was at pains to note the complexity of the
situation in the Great Lakes region of Africa. It also focused on the need
to achieve a comprehensive settlement of the region's problems: [p 96]
"The Court is aware of the complex and tragic situation which has long
prevailed in the Great Lakes region. There has been much suffering by the
local population and destabilization of much of the region...The Court is
aware, too, that the factional conflicts within the DRC require a
comprehensive settlement to the problems ofthe region." (I.C.J. Reports
2005, p. 190, para. 26; emphasis added.)
4. The Court's ruling at the preliminary objections stage, resulting in
removal of the case from the List, means that no decision will be made from
an international law perspective on the Parties' claims and no closure
reached in the minds of the various victims, who still await redress.
The ideal approach would have been to settle the entire litigation between
the DRC and two of its neighbours, Uganda and Rwanda, in the present case,
in order to work effectively towards the restoration and consolidation of
peace in the regionFN1.
---------------------------------------------------------------------------------------------------------------------
FN1
For an analysis of the Court's role in settling disputes, see Mohammed Bedjaoui, "La place de la Cour internationale de Justice dans le système
général du maintien de la paix institué par la Charte des Nations Unies",
Recueil des cours de l'Académie de droit international de La Haye, Vol. 8,
1996, pp. 541-548; Mvumbi-di-Ngoma Mavungu, Le règlement judiciaire des
différends interétatiques en Afrique, 1992.
---------------------------------------------------------------------------------------------------------------------
5. The Court, principal judicial organ of the United Nations, has set limits
to its action in the legal settlement of disputes between the countries of
the Great Lakes region:
"[T]he task of the Court must be to respond, on the basis of international
law, to the particular legal dispute brought before it. As it interprets and
applies the law, it will be mindful of the context, but its task cannot go
beyond that." (Armed Activities on the Territory of the Congo (Democratic
Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 190,
para. 26.)
6. In disputing the Court's jurisdiction and the admissibility of the
Application submitted by the DRC, the Republic of Rwanda raised two
preliminary objectionsFN2. It was of the opinion that the bases of
jurisdiction cited by the DRC (Article 22 of the Convention on Racial
Discrimi-nation; Article 29, paragraph 1, of the Convention on
Discrimination against Women; Article IX of the Genocide Convention; Article
75 of the Constitution of the WHO; Article XIV, paragraph 2, of the Unesco
Constitution; Article 9 of the Convention on Privileges and Immunities;
Article 30, paragraph 1, of the Convention against Torture; Article 14,
paragraph 1, of the Montreal Convention; peremptory norms (jus cogens) in
the area of human rights and forum prorogatum) could not [p 97]found the
jurisdiction of the Court (see Judgment, para. 15).
---------------------------------------------------------------------------------------------------------------------
FN2
Regarding preliminary objections, see Georges Abi-Saab, Les exceptions
préliminaires dans la procédure de la Cour internationale, 1967.
---------------------------------------------------------------------------------------------------------------------
In any event, even assuming that one of the titles or rules of customary
international law were to be accepted by the Court, the DRC's Application
would be "nevertheless inadmissible" (ibid.).
7. Pursuant to Article 79 of its Rules, the Court suspended proceedings on
the merits of the case in order to examine these preliminary objections.
Their examination could result in removal of the case from the List in the
event of the Court concluding that it lacked the jurisdiction to hear the
dispute submitted to it or that the Application was inadmissible ratione
materiae, ratione temporis or ratione lociFN3.
---------------------------------------------------------------------------------------------------------------------
FN3
Regarding the Court's jurisdiction see Maurice Arbour, Droit international
public, 3rd ed., 1997; Pierre-Marie Dupuy, Droit international public, 5th
ed., Nguyen Quoc Dinh, Patrick Daillier, Alain Pellet, Droit international
public, 6th ed., 1999.
---------------------------------------------------------------------------------------------------------------------
In the instant case, the Court confined itself to addressing the issue of
its jurisdiction. Not having accepted any of the grounds of jurisdiction
advanced by the DRC, the Court considered that it was unnecessary to take
matters any further by considering the Application's admissibility.
8. Certain final findings in the Judgment justify the present dissenting
opinion. As I pointed out in 2002, during the proceedings on provisional
measures, while it is true that not all the titles and rules of customary
international law advanced by the DRC were capable of establishing the
Court's prima facie jurisdiction, there were, however, compromissory clauses
upon which the Court could have based itself for this purpose (Armed
Activities on the Territory of the Congo (New Application: 2002) (Democratic
Republic of the Congo v. Rwanda), Provisional Measures, Order of 10 July
2002, I.C.J. Reports 2002, pp. 277 et seq.).
9. In the present case, I am not convinced that the Court has analysed in
depth the compromissory clauses contained in the following international
treaties: the Constitution of the WHO, the Montreal Convention and the
Convention on Discrimination against Women. Furthermore, the Republic of
Rwanda remained deliberately vague as to whether it had withdrawn its
reservation to the Genocide Convention, in light both of its own
constitutional law and of the declaration of the Rwandan Justice Minister at
the sixty-first session of the United Nations Commission on Human Rights in
Geneva on 17 March 2005.
1. The Constitution of the World Health Organization
10. Article 75 of the WHO Constitution states:
"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 [p 98]
concerned agree on another mode of settlement."
11. The first precondition fixed by this compromissory clause is the
existence of "any question or dispute concerning the interpretation or
application" of the WHO Constitution.
12. The Court ruled that
"the DRC has not shown that there was a question concerning the
interpretation or application of the WHO Constitution on which itself and
Rwanda had opposing views, or that it had a dispute with that State in
regard to this matter" (Judgment, para. 99).
13. The Permanent Court of International Justice defined a dispute as "a
disagreement on a point of law or fact, a conflict of legal views or of
interests between two persons" (Mavrommatis Palestine Concessions (Greece v.
United Kingdom), Judgment No. 2, 1924, P.C.I.J., Series A,
No. 2, p. 11).
In the event of a dispute between two or more States, the words "two
persons" should be read as "two or more States".
In a number of cases, the Court has had to clarify and amplify the notion of
a dispute. To establish the existence of a dispute, "[i]t must be shown that
the claim of one party was positively opposed by the other" (South West
Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary
Objections, Judgment, I.C.J. Reports 1962, p. 328); moreover, "[w]hether
there exists an international dispute is a matter for objective
determination" (Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania (First Phase), Advisory Opinion, I.C.J. Reports 1950,p. 74; East
Timor (Portugalv. Australia), Judgment, I.C.J. Reports 1995, p. 100, para.
22; Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 1998, p. 17, para. 22; Questions of Interpretation and Application
ofthe 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United States of America), Preliminary
Objections, Judgment, I.C.J. Reports 1998, pp. 122-123, para. 21).
14. In the present case, the question or dispute must concern the
interpretation or application of the WHO Constitution.
15. Both the spirit and the letter of the WHO Constitution establish
overriding obligations towards the Organization. As I had previously
submitted,
"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. It would be
wrong to assert that this Constitution does [p 99]not lay down any
obligations for Member States." (Armed Activities on the Territory of the
Congo (New Application: 2002) (Democratic Republic ofthe Congo v. Rwanda),
Provisional Measures, Order of 10 July 2002, I.C.J. Reports2002, p. 279,
para. 28 seperate opinion of Judge Mavungu.)
16. On repeated occasions, the DRC made various protests regarding the
deterioration of the state of the Congolese population's health during the
armed conflict.
In his speech to the fifty-seventh session of the United Nations Commission
on Human Rights on 30 March 2001, President Joseph Kabila stated :
"According to data provided by NGOs such as the International Rescue
Committee and by agencies of the United Nations, around 2,500,000 Congolese
have lost their lives in the occupied territories, victims directly and
indirectly of aggression...
Countless numbers of killings have occurred among the peaceable Congolese
civilian populations. Numerous barbarous and savage acts have taken place
such as... rapes, the deliberate spreading of AIDS . . ." (Emphasis added.)
The various White Papers, previously published by the DRC's Ministry of
Human Rights, record numerous violations of human rights, including
health-related questions. Both Rwanda and Uganda are cited in this respect.
By way of example, paragraph 45 of the First White Paper, distributed as a
working document to the Security Council, states the following:
"Museveni and Kagame are committing acts which are beyond all understanding
in the pursuit of their strategy of exterminating the Congolese civilian
population in the occupied areas. For example, 2,000 Ugandan soldiers
suffering from acquired immunodeficiency syndrome (AIDS) or infected with
the human immunodeficiency virus (HIV) were sent to the front in Orientale
Province, their mission to rape women and girls with the aim of spreading
the disease. Need it be recalled that Uganda and Rwanda have the sorry
distinction of having Africa's largest number of AIDS sufferers and
HIV-infected persons..."[Translation by the United Nations Secretariat.]
The Fourth White Paper also describes the deterioration in health
conditions in the occupied territoriesFN4. This has been confirmed by
several humanitarian organizations (Oxfam, Save the Children, Christian Aid,
[p 100] etc.), the European Parliament (14 June 2002 resolution), the
Special Rapporteur on the human rights situation in the DRC FN5, etc.
---------------------------------------------------------------------------------------------------------------------
FN4
See Fourth White Paper, Ministry of Human Rights, Kinshasa, February 2002,
pp. 34 et seq.
FN5 See in particular the reports of 20 September 2000, 1 February 2001 and
27 March 2001.
---------------------------------------------------------------------------------------------------------------------
17. Violations of human rights, including health-related questions, have
been the subject of exchanges between the Parties in regional and
international bodies (OAU, Security Council, General Assembly, Commission
on Human Rights, etc.).
18. In protecting the inviolable core of human rights, the priority lies
less in specifying the conventional provisions breached than in denouncing
these serious attacks on human dignity in order to put an end to them. It is
surely unreasonable to blame the Applicant for having in certain cases
omitted in its protests in international forums to cite the norms or
conventional provisions that underpinned them.
19. In view of the foregoing, a dispute between the two Parties as to
application of the WHO Constitution definitely existed. WHO Member States
commit themselves to
"the attainment by all people to the highest possible level of health, to
regarding the achievement of the 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..."(Legality ofthe Threat or Use ofNuclear Weapons, AdvisoryOpinion,
I.C.J. Reports 1996 (I), p. 146, dissenting opinion of Judge Weeramantry).
20. The second precondition fixed by Article 75 of the WHO Constitution is
the recourse to negotiations or the World Health Assembly prior to seisin of
the Court.
21. Without supporting its argument, the Court finds:
"even if the DRC had demonstrated the existence of a question or dispute
falling within the scope of Article 75 of the WHO Constitution, it has in
any event not proved that the other preconditions for seisin of the Court
established by that provision have been satisfied, namely that it attempted
to settle the question or dispute by negotiation with Rwanda or that the
World Health Assembly had been unable to settle it" (Judgment, para. 100).
"The Court concludes from the foregoing that Article 75 of the WHO
Constitution cannot serve to found its jurisdiction in the present case."
(Judgement, para. 101.)
22. The state of conflict prevailing between the two Parties was not
conducive to direct negotiations in order to settle the totality of the
disputes between them. Both the DRC and Rwanda have acknowledged having
engaged in negotiations prior to the seisin of the Court.
[p 101]
23. In a document dated 18 October 2000, entitled "Responses and Preliminary
Objections of the Republic of Rwanda", submitted to the African Commission
on Human and Peoples' Rights on
24 October 2000, in response to Communication 227/99 filed by the DRC,
Rwanda stated the following:
"the acts reported...(acts constituting violations of numerous international
humanitarian rights and/or international humanitarian law instruments) have
repeatedly been brought by the Democratic Republic of the Congo to the
attention of international organs, including:
— meetings of the United Nations General Assembly;
— meetings of the Security Council;
— sessions of the United Nations Commission on Human
Rights".
"Communication 227/99 must be declared inadmissible on the basis of the fact
that the allegations in question have been the subject of intense
discussions and negotiations before the competent organs of the United
Nations and the Organization of African Unity." (CR 2005/20, pp. 13-14,
para. 16; emphasis added.)
24. The DRC, for its part, confirmed that negotiations had taken place
between the two Parties with a view to achieving a comprehensive settlement
to the conflict, including the organization of arbitration (CR 2002/38, pp.
10-11).
25. In my previous opinion, I had occasion to state:
"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...TheCourt has moreover given a wide interpretation to the notion of
'diplomatic negotiations' (exchanges of views: diplomatic notes, protests,
discussions within an international organization, talks)." (Footnote: "See
inter alia Right ofPassage 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),
Provisional Measures, Order of 31 March 1988, I.C.J. Reports 1988, pp. 99
et seq.") (Armed Activities on the Territory ofthe Congo (New Application:
2002) (Democratic Republic ofthe Congo v. Rwanda), Provisional Measures,
Order of 10 July 2002, I.C.J. Reports 2002; p. 280, para. 30, separate
opinion of Judge Mavungu.)
26. Both Parties having confirmed that various negotiations took place in
international forums on human rights violations, including those relating
to the health of the Congolese population, the Court was bound to take note
of that fact.
27. The third and last precondition stipulated by the compromissory clause
is that the question or dispute "be referred to the International [p 102]
Court of Justice in conformity with the Statute of the Court, unless the
parties concerned agree on another mode of settlement".
28. In the present case, it was apparent from the arguments advanced by the
two Parties that the dispute could not be settled by diplomatic
negotiations, much less by the organization of arbitration. The Republic of
Rwanda disputed the admissibility of the Communication filed with the
African Commission on Human and Peoples' Rights by the DRC. Seisin of the
Court by an application instituting proceedings, in accordance with Article
36, paragraph 1, of its Statute, was the only option still available to the
Applicant.
29. In view of the foregoing, the Court should have found that it had
jurisdiction to examine the merits of the dispute.
2. The Montreal Convention for the Suppression of Unlawful Acts against the
Safety of Civil Aviation
30. The compromissory clause in the Montreal Convention for the Suppression
of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971
was also invoked by the DRC as a base of jurisdiction for the Court. Article
14, paragraph 1, of this Convention sets three pre-conditions for seisin of
the Court: the existence of a dispute concerning the interpretation or
application of the Convention; the Parties must have attempted to settle the
dispute by negotiation, or by arbitration.
31. With respect to the first precondition, the DRC accused Rwanda and
Uganda ("the allied aggressors") of shooting down a Congo Airlines Boeing
727 after take-off from Kindu (Maniema province) on 9 October 1998. All of
the passengers (37 women and children) and the three crew members lost their
lives as a result of this unlawful act.
32. The DRC issued a number of protests on this matter, in particular in its
White PapersFN6 and in the Memorial which it filed with the African
Commission on Human and Peoples' RightsFN7.
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FN6
See First White Paper, Human Rights Ministry, Kinshasa, December 1998, pp.
10-11, para. 67; Second White Paper, April 1999, p. 35.
FN7 DRC's Memorial with respect to Communication filed with the African
Commission on Human and Peoples' Rights, Human Rights Ministry, Kinshasa,
2000, p. 11, note 13.
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Moreover, it filed a complaint against Rwanda and Uganda with the President
of the ICAO Council by a letter dated 20 October 1998. The representatives
of both Parties in the present case participated in the organization's
deliberations without voting rights.
Article 1 of the Montreal Convention stipulates that:
"[a]ny person commits an offence if he unlawfully and intentionally: [p 103]
— performs an act of violence against a person on board an aircraft in
flight if that act is likely to endanger the safety of that aircraft; or
— destroys an aircraft in service or causes damage to such an aircraft
which renders it incapable of flight or which is likely to endanger its
safety in flight."
The States parties to the Montreal Convention are obliged to punish such
acts by severe penalties (Art. 3).
33. The declaration of the ICAO Council following consideration of the
request filed by the DRC is very clear:
"the unlawful seizure of aircraft and other acts of unlawful interference
against civil aviation, including acts aimed at destruction of aircraft,
have serious adverse effects on the safety, efficiency and regularity of
international civil aviation, endanger the lives of aircraft passengers and
crew, and undermine the confidence of the peoples of the world in the safety
of international civil aviation" (para. 2).
34. In view of the discussions organized under the aegis of the ICAO, there
can be no doubt whatsoever that a dispute existed between the two Parties
prior to seisin of the Court.
35. The second precondition is the organization of negotiations. I am of the
opinion that the negotiations organized within international bodies, in the
present case by the ICAO Council, can be regarded as official negotiations
between the two Parties.
It should be noted that the Court has broadly interpreted the notion of
"negotiations": exchange of views, diplomatic Notes, protests, discussions
within an international organization, talks (South West Africa (Ethiopia v.
South Africa; Liberia v. South Africa), Preliminary Objections, Judgment,
I.C.J. Reports 1962, pp. 344 et seq.; Border and Transborder Armed Actions
(Nicaragua v. Honduras), Jurisdiction and Admissibility, Judgment, I.C.J.
Reports 1988, pp. 99 et seq.).
36. The third and last precondition concerns requests for 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."
In other words, seisin of the Court by one of the parties can only take
place when it has proved impossible to organize arbitration, six months
after the date when it was requested.
37. In its consistent jurisprudence, the Court has had the opportunity to
define in precise terms the formal condition for requesting arbitration. [p
104]
The lack of an agreement between the two Parties on the organization of
arbitration cannot be assumed. The existence of such a disagreement can only
be shown by an offer of arbitration made by the Applicant to which the
Respondent has not responded. (See Questions ofInterpretation and
Application ofthe 1971 Montreal Convention Arising from the Aerial Incident
at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), Preliminary
Objections, I.C.J. Reports 1998, p. 17, para. 21; Questions of
Interpretation and Application ofthe 1971 Montreal Convention Arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of
America), I.C.J. Reports 1998, p. 122, para. 20.)
38. Since the three preconditions are cumulative, the DRC had to demonstrate
that it had proposed to Rwanda that this dispute be submitted to
arbitration.
However, during the proceedings on the request for the indication of
provisional measures, the DRC told the Court that it had been impossible to
organize an arbitration owing to the lack of co-operation from Rwanda. The
proposals made in July 2001 (Lusaka), September 2001 (Durban), January 2002
(Blantyre) and March 2002 (Lusaka) were reportedly met with refusals by the
Republic of Rwanda.
39. There can be no doubt that the armed conflict in the DRC gave rise to a
number of different disputes regarding violations of human rights and/or
basic international humanitarian law. A request for arbitration could not
focus all the attention on one precise dispute at the expense of all others.
Strict adherence to legal formalities was not appropriate when defending
human rights.
The exceptional circumstances of the conflict and the Respondent's attitude
prior to seisin of the Court, as well as during the current proceedings,
should have led the Court to find that it had jurisdiction as arbiter of
last resort.
3. The Convention on the Elimination of All Forms of Discrimination against
Women
40. Article 29, paragraph 1, of the Convention on Discrimination against
Women includes a compromissory clause, which reads as follows:
"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 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."
41. This clause specifies the preconditions for seisin of the Court: the [p
105] existence of a dispute, the impossibility of settling the dispute by
negotiation and a request for arbitration. These conditions are similar to
those in the Montreal Convention (see above). With the exception of a few
minor differences, the conclusions that I have reached in my analysis of
that Convention can equally be applied to this one.
42. The Court did not see fit to decide whether the various human rights
violations committed against the women of the Congo in the conflict zones —
sexual violence, the deliberate spreading of the HIV/AIDS virus, the burial
of women alive, etc. — were covered by the Convention on the Elimination of
All Forms of Discrimination against Women.
43. In its various protests, the DRC emphasized the specific violations
concerning Congolese womenFN8. The dispute between the two Parties concerns
the application of the Convention.
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FN8
See White Paper, Vol. 3, pp. 39 et seq.; Vol. 4, pp. 41 et seq.; Special
Number, pp. 26 et seq.
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44. With respect to prior negotiations, the Court has found on a number of
occasions that talks within international bodies can be regarded as
negotiations.
45. It is true that the African Commission on Human and Peoples' Rights is
not strictu sensu an arbitral body. However, in the circumstances of the
present case, its seisin by a Communication by the DRC and the adversarial
process between the two Parties that took place within it could be regarded
as an attempt at arbitration. We should not lose sight of the fact that the
Commission was established within the Organization for African Unity (OAU)
to hear human rights disputes between Members of that pan-African
organization.
46. The foregoing elements could have allowed the Court to find that it had
jurisdiction and to rule on the merits of the case.
(Signed) Jean-Pierre MAVUNGU. |
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