Non- Corrigé Traduct1on
Unco rrected Translation
CRW
CR 2002/38 (traduction)
CR 2002/38 (translatiOn)
Vendredi 14juin 2002 à 9 h 30
Friday 14June 2002 at 9.30 a.m -2-
006 The PRESIDENT: Please be seated. The Sitting is open for the second round of oral
argumentof the DemocratieRepubhcof the Congo. 1gtvethe floor to the DemocratieRepubhcof
theCongomthe persan ofits Co-Agent. Mr.NtumbaLuabaLumu,youhavethe floor.
Mr.NTUMBALUABALUMU: Thankyou,Mr. President. Mr. President,Membersof the
Court,wewelcomethisopportunityinthe secondroundof oralargumentto reply,as is customary,
tothe observationsmadeyesterdaybythe Respondent,Rwanda,and wewilldo so inthe following
order:
DeanPterreAkeleAdauwtllspeak first He will be followedby ProfesserLuambaKatansi
and 1shaHalso make sorneobservationsmyself. May 1now ask you, Mr. President,to givethe
floorto DeanPierre AkeleAdau.
ThePRESIDENT. Thankyou,Minister,1nowgivethefloorto DeanAkeleAdau.
Mr.AKELEADAU: Thankyou,Mr. President.
Mr.President,Membersof the Court,therewere twomain strandsto Rwanda'sargumentin
reply to the submissionsof the DemocratieRepublicof the Congoyesterday: the political aspect
andthe legalaspect.
A.The political aspect
The Respondent, Rwanda, made three points:
(1) theInterhamweperpetratedthe 1994massacres;
(2) theCongoleseGovernmentof the timeallegedlyassistedthe Interhamwe;
(3) thepresentCongoleseGovemmentoffersa versiOnofthe factsatoddswiththe reahty.
The reply by the Governmentof the DemocratieRepublicof the Congo on these points is
clear. The recurrent inter-tribalmassacresin Rwandafrom 1960 to the present day, on the one •
'~
band,andon the other,theassassinationof theRwandesePresidentin Aprill994, whichtriggered
the genocideat issue,areeventswhichhave nothingtodo with the Congolese Govemmentof the
007
time. Quitethe contrary,the Congowas the unwillingvictim of them by virtue of the massive -3-
mflux and sojourn on tts territory of severa! million Rwandese, wtth ali the disastrous social
consequences whtch may be imagined, as weil as for schools, hospttals, the envtronment, etc.
Lookmg again at the political presentationof the situation, accordmg to which the Congolese
Government of the ttme assisted the Interhamwe, it may even be wondered whether this is not
ultimately where the motive lies which today prompts the Rwandese Republic once agam to engage
inacts of genocide on the territory of the Democratie Republic of the Congo.
Rwanda added that the picture of events presented by the Govemment of the Democratie
Republic of the Congo in its submissions is at odds with the reality; we fervently hope that, when
the case is considered on the merits, Rwanda will be able to present a very different picture.
On the legal front, Mr. President, Rwanda's defence, as presented to you yesterday, is
characteristicof a parttcular mmdset. A mindset which IS nurtured by a narrow and
quasi-patrimonial concept of genocide which makes this phenomenon- genocide- exclusive to
Rwanda, thereby denying the fact that genocide is above ali a violationf international public order
and that genocide affects three victims: the individual, who is affected in his phystcal person and
inhis dignity; the group to which the individual belongs; but also the international community.
And the events of 1994 so affected the international community that it found itself obliged to set up
the International Criminal Tribunal for Rwanda, in the beliefthat, despite the reservations made by
thatcountry- Rwanda- to the 1948Convention, and more exactly toits Article 9, giving you
jurisdiction with respect to any dispute whichmight arise in the interpretation and application of
that Convention. Notwithstanding this reservation, the international community felt that Rwanda
should be bound by that Convention and could not place itself outside the legal scope of the
1948 Convention.
Placing oneself outside the legal scope ofthat Convention, means not only the substance, not
only the substantive contentof the Convention, but also the jurisdiction of the InternatiOnalCourt
of Justice. Because ttwould be inadmissible to be able to say "1respect the laws on genocide, but 1
,008 do not atm to be brought to book, to be beard, to be controlled by anyone, not even by the
International Courtof Justice,. lt therefore seems tous that Article 9 of the 1948 Convention is an
essential provision, a fondamental provision which cannot be removed from the text as a whole
without ultimately rendering that text incoherent. ~4-
Mr. President, Rwanda's patrimonial concept of genoctde is also unilateral Genocide ts
something which concerns it when, tt is the victim, but does not concern it when, alas, it itself
pursues a genocidal policy and practtces tt with respect to other groups, other peoples We
eamestly hope, we fervently hope, Mr. President, that your Court will not follow Rwanda along
this path. And we also hope that your Court will not offer support to Rwanda here.
B. The legal aspect
1 said a moment ago, Mr. President, that Rwanda's defence yesterday was characteristic of a
mindset which denies the pedagogical aspect not only of legal rules, but also of legal decisions. In
fact, what we beard here yesterday cornes down to the followmg:
1, Rwandese Republic, have not recogmzed and will not recognize the compulsory
jurisdiction of the Court. Let me continue the massacres.
1, Rwandese Republic, acceded to the 1948 Convention, but 1 make reservations on
ArticleIX of that Convention;1 do not recognize the jurisdtctJon of the Court, let me continue the
massacres
1, Rwandese Republic, have signed the international conventions, but1do not intend to go
before international justicAil1 could accept would be arbitration or any other procedure internai
to a convention. But every time, ladies and gentlemen of the Democratie Republic of the Congo,
you ask me togo to an arbitral tribun1will reply to you "ladies and gentlemen, shofrrst,ifyou
do not, 1shall shoot frrst".
Mr. President, thts ts not an extract from sorne play. It is a true picture of the attitude
adopted by Rwanda to the charges made against it. And this is no doubt what we wtll see when we
come to consider the merits of this case.
009 Rwanda's defence was based on the fact that it made a reservation to Article IV of the
Genocide Convention and that, consequently, the Court bas no jurisdictionOn this subject, the
Govemment of the Democratie Republic of the Congo asserts that the present state of international
law bad robbed Rwanda's reservation of ali meaning for the following reason. -5-
As ProfesserPierre-ManeDupuy says, reservattonsare one of the most vicious technical
tmpedtments to the universalityof human rights What prec1selycharactenzes genocide is its
umversal nature. Ifwe followtheDemocratieRepublicoftheCongodownthis path, ttwouldmean
denymg genocide its universal character. Because, prectsely, as Pierre-MarieDupuy bas saHl,
• reservationsare oneofthe mostvicioustechnicalimpedimentsto the universalityof humanrights
2
Andwhat tsmore,ProfesserGérardCohen-Jonathan showsthat:
"the numberand above alithe natureof certain reservattonswhich are destructiveof
endshavea dangerouseffecton theeffectivzté ofhuman rightsinstruments. Foronlya
fewyearsnow[he goeson},the institutionsresponsiblefor momtonngthe application,
revealing the insu:fficientor madequate character of the inter-State system of the
1969Convention[ViennaConvention},have beentryingto find a coherent,obJective
soluttonto the problernof assessingthe validtty of the reservations in terrnsof both
fonnand substance. Underthe impetusofthe EuropeanCourtand the Inter-American
Court,it is the UnitedNationsHurnanRights Cornrnttteewhich, going a step further,
baslaiddownthe new 'rulesof the garne'for Statesma dynamic,restncttvefasbion
Thts developrnent, wbich bas admtttedly created certain tensions, illustrates the
originalityof internationalhurnanrightslawwithmthe internationallegalorder."
Mr.President,Membersofthe Court,the presentcasewill no doubt also createtensionsfor
the Court. As Mr.Cohen says Tensions over what effect to give to the reservations on the
application oreffectzvztof hurnanrtghts under the jurisdiction of the Court. Your Court bas
already mdicatedthat It is inclinedto stress the need to gtve effect to the universal characterof
bumannghts, inthejudgrnentdeliveredintheNorthSeaContmentalShelf cases,whereit isstated,
inter alia,that there are conventionswbere reservationsare not acceptable(/ C.J Reports 1969,
pp. 38-39,para.63). And1thinkthis ISthescenariohere.
010 Mr.President, wtth your perrnisston, 1 sbould like to ask you to gtve the floor to my
colleagueProfesserLuambatocontinue.
ThePRESIDENT: Thankyou, DeanAkeleAdau. I nowgtvethe floorto ProfessorLuamba
Katansi.
Mr.KATANSI. Mr President,Mernbersof the Court,now that my colleague,DeanAkele,
• bas completed bts oral argument,the t1rnehas come for me to concludemy oral rernarks. And at
1P1erre-MarieDupuy,Droztznternatzonaplubl1c,5th edition,2000,pp 217et seq
2GérardCohen-Jonathan,"Lesréservesdansles trartsrnst1tutronnelrselatifsaux drortsde 1'homme Nouveaux
aspectseuropéeet mternat10nau, GDIP1996" -6-
the outset, 1must point out that, contrary to Rwanda's allegattons, the headquarters agreement
between the Govemment of the Democratie Republic of the Congo and MONUC was invoked not
in support of the argument on the jurisdiction of the Court, but rather to indicate that the Rwandese
Anned forces are not authorized to attack MONUC officiais, as was the case at Kisangani, as those
officiais enJOY diplomatie privileges and immunities [headquarters agreement signed on
4 May 2000 between the Govemment of the DRC and MONUC]. The assertion by the
Govemment of the Democratie Republic of the Congo that there may be a basis for the jurisdiction
of the Court in the clauses of a number of conventtons, and at the same time that these conventions
will find internai machinery for dtspute settlement, must be accepted. This was the context in
which the Govemment of Rwanda claimed, in its defence yesterday, that the Democratie Republic
of the Congo bas never made recourse to internai arbitra.ttonprocedures.
Mr. President, the Government of the Democratie Republic of the Congo maintains that this
allegation by Rwanda ts not valid, inasmuch as the ROC bas sought to brmg Rwanda to arbitration
on a number of occasions. And there have been many suc ~pportumttes for having recourse to
arbitration procedure or any other procedure laid down by the conventions concemed:
- in Joly 2001 at Lusaka, on the occasion of the 37th Conference of Heads of State of the
Organization of African Unity and in the presence of the United Nations Secretary-General
himself, the Presidentof the Rwandese Republic rejected any proposai for the settlement of
certain specifie armed confltcts by arb1tration;
in September 2001, at Durban, in the Republic of South Africa, and on the occasion of the
World Conference on Racism, President Joseph Kabila of the Democratie Republic of the
011
Congo made the same proposai for a settlement by arbitration to his Rwandese opposite
number, who declined the offer;
- inJanuary 2002, at the Balntyr Summit m Malawi, in the presence of the President of the
Republic, Bakili Muluzi, the Congolese President reiterated his offerhis Rwandese opposite
number, who tumed tt down, '
- in March 2002, lastly, and on the occasion of the meeting of the Joint Political Committee of
the Lusaka Agreement and of the Security Council Mission, the President of the Rwandese -7-
Republic immediately slammed the door on the proposais for a settlement by arbitratJ.onas
soon asthey were made to htm.
It ts therefore false, Mr President, to claim that the Democratie Republic of the Congo bas
never made any overtures to Rwanda with a view to the settlement by arbitration of a number of
treaty problems ansing between these two eountries Just as it is false to sta.tebefore the Court,
somewhat dismgenuously, that the Rwandese anned forces have left Congolese territory, as though
the most accredited organsof the United Nations- such as your Court- spend most of their time
lying in public
Mr President, Rwanda's defence, in the fonn in whteh we beard tt yesterday, conststed of a
blanket deniai exeept for onepomt· Rwanda said nothmg about its conduct, whtch is not that of a
civilizedStatein the tenns of theJUdgrnentdeliveredinthe Corfu Channel case (1949) between the
Umted Kmgdom of Great Britain and Northem Ireland and Albania Such that, this silence, which
amounts to acquiescence, should constitute sufficient basis for the jurisdiction of the Court.
In conclusion,Mr. President, 1shaHmvoke the scientific, moral and jurisprudential authonty
of Paul Reuter, who bas stated that "the Court is the organ, and the only organ, of an invistble
eommumty, m which Statesare starting to become accustomed to their new social condition".
Mr President, thank you for your attention. May 1 ask you to gtve the floor to the next
speaker.
The PRESIDENT: Thank you, Professor Katansi. I now give the floor to Mr. Luaba Lumu,
Co-Agent of the DemocratieRepublic of the Congo.
Mr. NTUMBA LUABA LUMU: Mr. President, Members of the Court, at the hearing
yesterday, Thursday 13June, we beard Rwanda's counsel and advocate, our respected colleague
012 Professor and Barrister Christopher Greenwood, discuss the roletch the Democratie Repubhe of
the Congo wants to have the International Court of Justice assume and play; he even went so far as
to maintam that the Court is being asked by the Democratie Republic of the Congo to create its
own peaeekeeping force, in the steadf the Security Council. -8-
Under the tenns of the United Nations Charter, the fonctions ofthe ''principal organs" of the
United Nations referred to in Article 7, including the Security Council and the International Court
of Justice, are clear and explic1t. \)
Thus, it cannot be cla~m teat the Court is prevented from adjudicating upon the present
dispute between the Democratie Republic of the Congo and Rwanda on the grounds that the matter
has already been referredto the Security Council.
In order to ensure prompt and effective action by the United Nations, the Members have
entrusted the Security Council with "prirnary responsibility for the maintenance of international
peace and security" under the tenns of Article 24
Primary responsibility is not synonymous with exclusive responsib1hty. Ali principal organs
of the United Nations, as weil as ali States, includmg the Democratie Republic of the Congo and
Rwanda, are called upon to contribute to the ach1evementof the purposes of the United Nations, set
out in Article1 of the Charter.
"1. To maintain international peace and security ... and to bring about by
peaceful means, and in confonnity with the principles ofJUstice and international law,
adjustment or settlement of mtemational disputes or situations ...
2. To develop friendly relations arnong nations.. and to take other appropriate
measures to strengthen umversal peace,
3.To achieve international co-operation in solving internatiOnal problems ...
and in promoting and encouraging respect for human nghts and for fondamental
freedoms for ail without distinction as to race, sex, language, or religion."
The pnncipal organs of the United Nations, including the Security Council and the Court, as
weil as ail States Members, are under an obligation to respect Artic55 of the Charter, which aims
at ensuring "peaceful and friendly relations among nations" by promotmg inter alza ''universal
respect for, and observance of, human rights andfondamental freedoms for ail ... ".
013
Accordingly, there is no reason to be surprised that an ever greater nurnber of disputes,
controversies and disagreements between States are referred to both the Security Council and the
Court, so thateach can contribute to restoring international peace and security in accordance with
itsspecifie institutional, organic and functional characteristics -9-
When Article 38 of the Statute of the Court assigns the Court the fonction of "decid[ing] in
accordance with mternational law such disputes as are submitted to it", 1tsimply fonnalizes the
Court's role in establishing and strengthemng international peace and security.
Otherwise, of what use would the International Court of Justice be!
Mr. President, the Court has m manycases clearly described its relationship with the Council
in respectof the perfonnance of its mission Thus, m the case conceming Border and Transborder
Armed Actions (Nzcaraguav. Honduras) the Court stated, m ruling on Its Jurisdiction and the
admissibilityof the application·
''theCourt is aware that political aspects may be present in any legal dispute brought
before it. The Court, as a judtctal organ, is however only concerned to establish, frrst,
that the dispute before tt is a legal dispute, m the sense of a dispute capable of being
settled by the apphcation of principles and rules of international law, and secondly,
that the Court bas junsdtction to deal with it, and that that jurisdictmn is not fettered
by any circumstances rendering the application madmisstble. The purpose of recourse
to the Court is the peaceful settlementof such disputes; the Court's judgment is a
legal pronouncement, and it cannot concern itself with the political motivation which
may lead a State at a particular time, or in particular circumstances, to choose judtcial
settlement." (Judgment of20 December 1988,1 C.J. Reports 1988, p.91, para 52.)
As noted by Judge Raymond Ranjeva, once again,
"the fact that the rule Wia via electa bas not been transposed into international
procedural law bas made possible the increased independence of the judicial
responsibihty from the primary, but not exclusive, responsibtlity of the Security
Counctl for maintaining internatiOnal peace and secunty. Consolidation of this
jurisdiction bas come about as part of the graduai generalization of these measures
having a mtlitary scope amongst provisional measures generally under Article 41 of
the Statute. It ISnot appropriate to establish a special rég1mebased on considerations
other than the spectfic facts and ctrcumstancesf the case " (Raymond Ranjeva, "La
prescrzption [par] la Cour mtematzonale de Justice des mesures conservatoires à
portée militaire", in Mohammed Bedjaout, Liber Amicorum, Kluwer Law
lnternatwnal, p. 458.)
As the Court also pointed out in the case concerning UnitedStates Diplomatzc and Consular
Staff inTehran, "no provision of the Statuteor Rules contemplates that the Court should decline to
take cognizance of one aspect of a dispute merely because that dispute bas other aspects, however
Important" (JC.J. Reports 1980, p 19,para. 36).
!' 014 Rwanda's Agent and its counsel argued that the ApplicatiOninstituting proceedings and the
Request for the indication of provisional measures submttted by the Democratie Republic of the
Congo agamst Rwanda are exaggerated and even contrtved and they went so far as to request,
without any embarrassment, their removal from the Court's List. l
- 10-
Inorder to better the chances of having their specious argument accepted and to suggest that
the June 1999 Application, which moreover has already been withdrawn, and the new Application,
in reahty a different Applicatton, are identical, or at the vecy !east similar, they deliberately chose
to call it the "case conceming Armed Actrvit1eson the Te"itory of the Con(New Application:
2002) (Democratie Republic of the Congo v. Rwanda)" (1
Mr. President, we will not follow the example set by Rwanda with its usual tendencies to
distort, convey disinformation, manipulate, explott and point an accusing finger to excess.
Moreover, today whoever puts up resistance against the ruling power m Kigali is characterized as a
perpetrator of genocide, even those who gained and exerctsed power alongside
Prestdent Polka Game and those who occupied the highest offices in that countt(The fonner
president is today being givenr~ug handling simply because he sought to exercise his political
freedom by founding a party.) The Application instituting proceedings and the Request for the
indication of provisional measures filed by the Democratie Republic of the Congo on 28 May 2002
explicitly concem massive, flagrant, serious and systematic violations by Rwanda, actmg through
Its troops, agents and allies mthe RCD-Goma, of human rights and international humanitarian law
on theterritocy of the Democratie Republic of the Congo.
Those violations do of course logically derive from Rwanda's arrned activities on Congolese
territocy, but tAppli~t ii oaed on Rwanda's systematic, serious and flagrant violations of
human rights on Congolese territocy. Would those violations have been possible if Rwanda bad
respectedthe fondamental principles of international law: respect for the sovereignty and territorial
integrity of the Democratie Republic of the Congo? This is what justifies the Request for the
indication of measures ordermg the total, immediate withdrawal of Rwandan troops from our
territocy.
In truth, Rwanda's serious violations of human rights are the means to maintain its
aggression and occupation of a large part of the national territocy.They are a means of
015 authoritarian government and even of dominationThere follows a policy of terror and of violent,
bloody repression of any_challenge or resistance, as described by Roberto Garreton in a number of
his reports and as noted by a number of non-governmental organizations such Human Rights
Watch, the Votee ofthe Voiceless, the group Friends ofNelson Mandela, Amnesty International. -Il -
Mr.President,withyourpermission,Ican give youailofthese reports.
ThePRESIDENT May1ask youwhetherthesearepublicdocuments?
Mr. NTUMBALUABA LUMU: Yes, Mr. President.most of these documents are fully
pubhc andwe citedthemyesterdaymouroralargument
ThePRESIDENT. Haveyou commumcatedthemtothe opposingParty?
Mr.NTUMBALUABALUMU: 1shaHdo that nght now.
ThePRESIDENT: Thankyou.
Mr NTUMBALUABALUMU: Thankyou for yourpermission,Mr. President Rwanda's
violationsof the normativeinternationalmstrumentsprotectinghuman rights and of international
humanitarianlaw cannotbe separated fromthe acts of aggressionand temtorial occupatton. The
correlationthus establishedisneitherartifictalnor unreasonable.
Mr. President,Rwanda'scounsel and advocate also underlmed the primacyof diplomatie
negotiationsoverjudtcial proceedings,venmak.ingthema preconditionto the seisinof the Court
and thereforeassertmgthat the requisttecondtttonshave not been met for the implementationof
the compromissoryclausescttedbythe GovernmentoftheDemocratieRepublicofthe Congo.
Whenparagraph1of Article33 oftheUnitedNationsCharterstates:
"[t]he parties to any dtspute, the continuance of which is likely to endanger the
mamtenanceof internationalpeaceand security, shalljirst ofall, seek a solution by
016 negotiation,enquiry,mediation,concihation,arbitration,judicial settlement,retort
regional agencies or arrangements,or other peaceful means of thetr own choice"
(emphasisaddedby theDemocratieRepublicoftheCongo),
"frrst of ali" relates to the preference for peaceful resolution of ali conflicts rather than to a
diplomatie prerequistte lt cannot be asserted here that diplomatie activity results in judicial
proceedmgsbeing held in abeyance,that the Court is merely a secondaryforum, as was tmplied
• yesterday,when itisthe principaljudicialorganof theUnitedNations
Nguyen Quoc Dinh, Patnck Dailber and Alam Pellet and other authors put it very well:
"general international law imposes no obligation on States to follow one peaceful settlement - 12-
procedure rather than another" (Nguyen Quoc Dihn et al., Droit international publrc, LGDJ, Paris,
1999, p. 788).
The principle thus universally recogmzed and affinned is that of free choice of means of v
seUlement (Jean Comb~ca and Serge Sur, Droit internallonal public, 4th ed., Montchrestien,
Paris, 1999, pp. 55-56), in accordance with Section 1,paragraph 3, of the Manila Declaration on the •1
Peaceful SeUlementof [International] Disputes, approved by the United Nations General Assembly
on 5November 1982 (resolution 37110):
"International disputes shall be settled on the basis of the sovereign equahty of
States and in accordance with the principle of free ch01ceof means in conformity with
obligations under the Charter of the United Nations and wtth the principles of justice
and internationallaw."
Jean-Pierre Queneudec, in his commentary on Article 33 of the Umted Nations Charter,
states that. ''the United Nations founder essentially wanted to facilitate peaceful resolution of
conflicts, without seekingto favour any particular means of settlement'' (Jean-Pierre Queneudec,
"Commentaire sur l'article 33 de la Charte des Nations Unies", in Jean-Pierre Cot and Alain Pellet,
La Charte des Nations Unies, commentaire article par article, 2nd ed., Economica, Paris, 1991,
pp. 567 to573).
Thus, negotiation or arbitration cao be an initial, and sometimes fmal, step. But, as
DénisAlland points out. "although negotiation, whether direct or assisted, must be given a chance,
in the eventof deadlock it is necessary tolook to judicial means, which are more compelling and
capable of deciding a dtspute tnlaw''(DémsAlland, Droit international public, PUF, Paris, 2000,
pp. 446 et seq.).
017 Mr. President, negotiation cao also continue in parallel with judicial proceedings, as the
Court itselfhas stated:
"The junsprudence of the Court provides varions examples of cases in which
negotiations and recourse to judicial seUlement have been pursued parr passu ...
Consequently, the fact that negotiations are being actively pursued during the present
proceedings is not, legally, any obstacle to the exercise by the Court of its judicial
fonction." (Case concemingAegean Sea Continental Shelf, LC J. Reports 1978, p. 12,
para. 29; similarly, case concerning Diplomatie and Consular Staff, case conceming
Mrlitary and Paramzlitary Activities in and agamst Nicaragua (Nicaragua v. Umted
States of America).) - 13-
Thus, whether or not there are negotiations, and whether at an incipient or advanced stage,
the Court is not prevented from entertammg a request and validly ruling.
Moreover, the Court bas always laid stress on the obligation ''to achieve a precise result ...
by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in
good faith" (Advisory Opinion of 8 July 1996, LC.J.Reports1996, p. 264, para. 99).
Neither a refusai to negotiate on the part of a party to the dispute nor the fact that
negottations have bogged down or become deadlocked can be asserted as a reason to black
recourse to another means of dispute resolution (D. Alland, opcit, pp. 446 etseq.).
As Moncef Kdhir notes, the absence of negotiations pnor to the submtssion of the case to the
Court cannat be asserted to defeat the Court'sJUrisdiction.
But was it, ISit, possible to enter into negotiations in good fatth with Rwanda and to achieve
tangible, concrete, apprectable and acceptable results m respect of peace and security in the Great
Lakes regton, and in respect of the promotion and protection of human rights, not just for
Rwandans but also for the Congolese, since ali share the same human nature?
Between 10July 1999, when the Lusaka Agreement conceming the ceasefire in the
Democratie Republic of the Congo was signed, and the present, Rwanda bas never respected tts
commitments And yet Article 1, paragraph 3, of that Agreement provides that the ceasefire shall
entatl the cessatton of ... ali acts of violence against the civihan population by respecting and
protecting human rights.
Those acts of violence include summary executions, torture, harassment and execution of
civilians on the hasts of their ethnie origin, propaganda and incitement to ethnie and tnbal hatred,
018
the arming of civtlians, sexual assault, the training and use of terronsts, massacres, mtssile attacks
on civil aircraft andhe shelling of civilian populations
Just a few weeks or months after that Agreement was signed, Rwandan forces happily
devoted themselves to carrying out large-scale massacres: Kasika, Lulingi, Luberizi, Mwenga, etc.
Unlike the other foreign troops, which are making an effort to disengage in stages, Rwanda
continues to reinforce its military presence on the ground. What ts more, paradoxically it even uses
former Hutu prisoners, ex-FAR forces and other armed groups on the front lines and for plundering
resources. - 14-
Many reports and other written documents note this, notably the report by the group of
experts on the illegal exploitation of the Democrattc Republic of the Congo's resources.
Professor Lwamba Katansi referred to the many summit meetings between
President Joseph Kabila and President Kagame and to the conduct unfailingly adopted by
President Paul Kagame at those diplomattc meetings
lt was made clear in our observations during yesterday's hearing that the Rwandan President
rejected ali peace proposais put forward by the Security Council missions and by other bodies or
countries.
Following Security Council recommendations, notably those in resolution 1355 of
16 June 2001, encouraging the Presidents and Governments of the Democratie Repubhc of the
Congo and Rwanda to intensify their dialogue with the goal of achieving regional security
structures based on common interest and mutual respect for the territorial integrity, national
sovereignty and security ofboth States, the Democratie Republic of the Congo sent official envoys,
hke the Minister for Security and Public Order, to Ktgali. But the converse has never taken place.
That is also the caseinrespect ofRwandan prisoners ofwar whom the Democratie Republic
of the Congo, with help from the International Committee of the Red Cross, has repatriated to
Rwanda.
The Govemment of the Democratie Republic of the Congo bas taken positive steps and
made proposais, but these have never resulted in any change for the better in Rwanda's behaviour.
019 This was the case of the disarmament and billeting in Kamina of sorne 2,000 Rwandan armed
elements as part of the disarmament, demobiliza.tion, repatriation, reinstallation and reinsertion
operation Their weapons were bumed in the presence of the Security Council's last mission in the
Democratie Republic of the Congo in May 2002.
That was also true of the reference made in late January 2002 to the Security Council
{t
seeking the establishment of an internatiOnal commission of enquiry concerning anned groups in
the Democratie Republic of the Congo for purposes of fmding them, identifying them and
disarming them. Finally, that was the case of the establishment m Kmshasa of a branch of the
International Criminal Tribunal for Rwanda.
What else should be done, Mr. President? The Democratie Republic of the Congo wishes and hopes that the international conference
on peace, security, stability and democracy the Great Lakes region, as urgedby many Secunty
Council resolutions,will finallytake place
Mr. Prestdent, arbitrat10nwas referred to as another precondition. Can this argument by
• Rwanda really be taken ser10usly when, as we ali know, it refused to enter into any special
agreement withthe DemocratieRepublic ofthe Congo to submit the dispute to the Court?
Moreover, m choosing the path of aggression and territorial occupation, in perststmg down
that path, which is contrary to good practice between civilized nations and to general and
customary mtemational law, Rwanda excluded ali possibility of peaceful settlement. It thus
became an outlawand placed ttself above mtemattonallaw
Itis clear that Rwanda has violated the principle prohibttmg the use of non-peaceful means
to resolve dtsputes, a principle enshrinedArticle 2, paragraph 4, of the Umted Nations Charter
and m other provistons such as the Declaration on Principles of International Law conceming
Friendly Relations and Cooperation among States (A/Res. 2625 (XXV) of 24 October 1970) and
the Manila DeclaratiOn on the Peaceful Settlement of International Disputes (A/Res 37/10 of
15November 1982).
Mr. Prestdent, to retum to the subJect of the Court's pnma facte jurisdiction, it was
permissible to observe that the Agent and the counsel of Rwanda did not completely challenge the
bases forjurisdiction put forward by the Democratie Republicf the Congo, rather, they confmed
themselves to disputing the connection of those bases with the facts and circumstances calling for
the indicationofprovisional measures as a matter ofurgency.
0 2 0 Thus, Rwanda does indeed admit that it is bound, on the same basis as the Democratie
Republic of the Congo, by the conventions which tt has also ratified and which include clauses
ascribing spectaljurisdiction to the Intemattonal Courtustice Those are in particular:
- Article 22 of the International Convention on the Elimination of Ali Forms of Racial
,.
Discrimmatton of21 December 1965;
- Article 29, paragraph 1,ofthe Conventton on the Elimination of Ail Forms ofDtscrimination
against Women of 18December 1979; - 16-
- Article 9 of the Convention on the Prevention and Punishment of the Crime of Genocide of
9 December 1948;
- Art1cle75 of the Constitution of the World Hea1thOrganization of22 July 1946,
- Article 66 ofthe Vienna Convention on the Law ofTreaties of23 May 1969.
The only counter-argument concems the reservations to Article 9 of the Genocide
Convention and Article 22 -Of the Convention on the Elimination of Ail Forms of Racial
Discnmination. But are those reservations admissible in respect of human rights and international
humanitarian law, particularly their core, based on customary law and on an obligation ergaomnes,
together with principles and values of jus cogens? Such reservations can only violate, deprive the
agreement of its abject, its usefu1ness anditseffectiveness. And Rwanda could then violate ail the
treaty provisions without exposing itselfto any oversight or sanction.
ln the BarcelonaTraction case, the Court stated that ail States have a legal interest in
ensunng respect for certain particularly compelhng conventional rules, such as the prohibition on
aggression, genocide, slave:ry and racial discrimination (Judgment of 5 February 1970, 1C.J.
Reports1970, p. 32, para. 34).
Jurisdictionratlonepersonae is clearly established because the conventions cited by the
Democratie Republic of the Congo have been ratified by Rwanda as weil as the Congo and are in
force between the two countries
Jurisdiction ratzone materiae cannat be denied because the acts representing serious
violations and breaches of human rights and international humanitarian law fall weil withm,the
021
scope of those conventions and underlie the legal disputes, notably as a result of the clashes,
between Rwanda and the Democratie Republic of the Congo.
For alithese reasons, the Democratie Republic of the Congo requests the Court to declare
thatit has prima faciejurisdiction and that the Democratie Republic of the Congo's request for the
indication of provisional measures is admissible.
We are askmg the Court simply to apply its settled jurisprudence concemmg the indication -
of provisiomil measures, which provides that, if the Court bas at least prima facie or formai
jurisdiction, it can indicate such measures. - 17-
Mr. President, Members of the Court, the bases of Jurisdiction invoked by the Democratie
Republic of the Congo confer upon you undemable prima facie jurisdiction. Your jurisprudence 1s
well settled on this point (case concemmg Nuclear Tests (Australia v. France) in 1973, 1C.J.
Reports 1973, p. 101, case conceming FisheriesJurzsdictzon(Federal Republic ofGermanyv.
leeland),1C J Reports1972, p. 30; case conceming UmtedStates Diplomatieand ConsularStaff
in Tehran,1C J Reports1979, p. 7, etc.)
The nsk of Irreparable and irremediable harm, in reality the accentuation of such harm,
clearly appearsin the 23 May 2002 declaration of the European Union on the events in Kisangani
The European Union
"condemns the renewed outbreak of v10lence in the areas occupied by the
RCD-Goma, notably m Kisangani, and the repression of the Congolese population by
RCD-Goma elements and Rwandan troops. It recalls the obhgattons denving from
successive resolutions of the United Nattons Securtty Council on the demilitarization
of Kisangani." [Translatwnby the Regzstry]
In his letter of 30 May 2002, the United Nations Secreta.ty-General's Special Representattve
Namanga Ngongi states:
"MONUC has publicly expressed its extreme indignation at the events in
Kisangani, in particular condemning the grave violationsof human nghts, includmg
summary executions commttted in this city adrnmistered by the RCD-Goma."
[TranslationbytheRegzstry]
Mr President, Members of the Court, the Agent of Rwanda cymcally spoke of facts which
bad been alleged but were unfounded, facts vutually made up, false allegationBut the documents
are there and are eloquent on the subject, as are accounts by witnesses. Let us listen a bit to
comments by sorne eyewttnesses. ''theyburst mto my bouse, one of them went to the room of my
022 21-year-old son, who begged him not to shoot The soldier responded, 'Address your prayers to
God, not to me ' And he killed him " (Lzbératwn of 30 May 2002, p. 8 )
The Democratie Republic of the Congo simply seeks justice and reparation through you, the
a artisans and craftersf peace, if you will permtt me to use that expression.
One day a passer-by asked a lady where the "palace of justice" was; the lady rephed: ''the
•
palace is there but I donknow where justice is...
The Democrattc Republic of the Congo has come to The Hague, to this "Peace Palace"-
this bouse of peace - seeking from the Court its contribution to the establishment of peace, - 18-
seekmg tts aid in putting a stop to .the human slaughter now bemg inflicted upon it by the
occupying troops, in particular the Rwandan forces, their agents and auxilianes.
Mr. President, Members of the Court, the Congolese people aspires to peace. lt is asking .,.
'
only for peace and the nght to live.
Mr. Prestdent, 1 ask you to give the floor to the Agent for a brief concludmg word. Thank
you
The PRESIDENT: A brief concluding word theo, because our time is already up. 1give the
floor toMr. Masangu-a-Mwanza.
Mr. MASANGU-a-MWANZA: Thank you, Mr Prestdent. 1 shall not be long.
Mr. President, Members of the Court, we followed the oral argument by Rwanda's counsel
attentively, particularly in respect ofthe deliberate dtsregard ofthejurisdictiofthe International
Court of Justice. You will recall that Rwanda denied in tts Memorial of 21 April that the Court bad
any jurisdtction. Rwanda. speaking through its counsel, scomfully mocked aliof the gruesome
suffering it was inflicting and cc;mtinuesto inflict on the Congolese population. 1 reiterate that
Rwanda, in tts Memorial of 21 April2000, denied that the Court had jurisdtction, thus favouring
continued acts of v,iolenceover law and international justice.
023 Between theo and now, Rwanda bas not made any gesture in compromise. The Congo,
through its President Joseph K.abila and its Minister for Foreign Affairs and for Secunty, went to
meet with the Rwandan President canying a message containing proposais which were to serve as
the basis for negotiations with a view to finding an honourable solution to the conflict between us.
But President Kagame turned a deaf ear to ali those proposais.
The Belgian Minister for Foreign Affairs, Mr. Louis Michel, and Mr. Aldo Ajello, the
European Union's Special Representative for the Great Lakes region, were unable to convince
President Kagame of the merit of our approach. This leads us to believe that Rwanda will have
nothmg of ali the resolutions adopted by the Security Council calling upon it: to withdraw from
Congolese territory; to make a diplomatie gesture to respond to the requests of the European Union
dignitaries who went to Rwanda to convince them to find a peaceful solution with the Democratie
Republic of the Congo. And this attitude amply proves, as I said yesterday, the arrogance of - 19-
Rwanda, whtch believes itself above the law and denies that the Court bas jurisdiction, also
prefening to ignore the resolutions adopted by the Security Council, notably resolutions 1304 of
15 June 2000, 1376 of 9 November 2001, and 1399 of 9 March 2002 These resolutions have
remained dead letters to the presentttme.
Mr. President, on behalf of the Congolese delegation led by the Minister for Human Rights,
Professor Ntumba Luaba, and counsel whteh bas assisted us, I would like to express our gratitude
to the Court for tts great patience in following the oral statements made during yesterday's and
today's hearings. 1 wtll not finish my statement without expressing my sincere gratitude to the
Regtstrar of the Court for the high consideration which he unfathngly shows us.
lnthe light of the facts and arguments set out during these oral proceedings, the Govemment
of the Democratie Republic of the Congo asks the Court to adjudge and declare such that the
Congolese people can enjoy its natural resources in accordance wtth international law: to rea:ffrrm
the Democratie Republie of the Congo's rights to defend ttself and to defend its people in exercise
of its right of self-defence pursuant to Article 51 of the United Nations Charter and to customary
international law, for so long as it shaH continue to suffer aggression at the bands znteralta of
Rwanda, the cost of which in human lives is increasmg daily, to order an embargo on the delivery
024 of arms to Rwanda, a freeze on ali military asststance and other a1d, an embargo on gold,
diamonds, coltan, and other resources and assets deriving from the systematic plunder and illegal
exploitation of the wealth of the Democratie Republie of the Congo lymg within its occupied part
(because Rwanda has now become an exporter of diamonds and coltan, even though these do not
exist under its sotl); the rapid installationa force to separate the combatants and impose peace
along the frontiersof the Democratie Republic of the Congo with Rwanda and with the other
belligerent parttes Above ali, we insist that Rwanda vacate Kisangani so that its demilitarization
cao take effeet and the MONUC forces can occupy the city- thus, the population will live m
peace -, while pointing out that Rwanda must pay to the Democratie Repubhc of the Congo, in
the latter's own right and asparenspatria of its cttizens, fair and JUStreparation on account of the
inJuryto persons, property, the economy and the environment.
The Democratie Republic of the Congo requests the Court to indicate also, pursuant to
Article 41 ofits Statute and Articles 73 to 75 oftts Rules, such other measures as the circumstances - -- - --- ~--Î
• 20.
may require in order to preserve the lawful rights of the Democratie Republic of the Congo and its
people and to prevent the aggravation of the dispute.
Mr. President, Members of the Court, that was the statement it was mcumbent upon me to
make m concluston to the sitting ending thts moming. Thank you.
The PRESIDENT: Thank you, Mr. Masangu-a-Mwanza. That brings this sitting to an end.
We shall meet agam at noon for the second round of oral argument by the Rwandese Republic.
The sitting is adjoumed.
11zeCourtroseat 1145a m
Traduction