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Press Release
Unofficial
No. 2002119
10 July 2002
Armed Activities on the Territorv of the Congo (New Application: 2002)
(Democratie Republic of the Congo v. Rwanda)
The Court rejects the request for the indication of provisional measures submitted by the
Congo, as weil as the request of Rwanda that the case be removed from the List
THE HAGUE, 10 July 2002. Today, the International Court of Justice (ICJ) rejected the
request for the indication of provisional measures submitted by the Democratie Republic of the
Congo (hereinafter "the Congo") in the case concerning Armed Activities on the Territory of the
Congo (New Application: 2002) (Democratie Republic of the Congo v. Rwanda). In its Order, the
Court concludes that "[it] does not in the present case have the prima facie jurisdiction necessary to
indicate those provisional measures requested by theCongo". The decision was taken by fourteen
votes to two.
The Court also found, by fifteen votes to one,that it cannot grant Rwanda's request that the
case be removed from the List".
Since the Court included on the Bench no judge of the nationality of either the Congo or
Rwanda, those States each appointed ajudge ad hoc.
Background information
In itsOrder, the Court recalls that, on 28 May 2002, the Congo had instituted proceedings
against 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
resolutionsof the United Nations Security Council". The Court recalls that, in the Application the
Congo stated that "[the] flagrant and serious violations [of human rights and of international
humanitarian law]" of which it cornplains "result from acts of armed aggression perpetrated by
Rwanda on the territory of the Democratie Republic of the Congo in flagrant breach of the
sovereignty and territorial integrity [of the latter],aranteed by the United Nations and OAU
Charters".
The Court stresses that the Congo bas recalled that it made a declaration recognizing the
compulsory jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute of
the Court; and that it stated that the Rwandan Government "has made no such declaration of any
sort". The Court adds that referring to Article 36, paragraph 1, of the Statute, the Congo bas relied,
in order to found the jurisdiction of the Court, on Article 22 of the International Convention on the -2-
Elimination of Ali Forms of Racial Discrimination of 7March 1966 (hereinafter the "Convention
on Racial Discrimination"), Article 29, paragraph 1, of the Convention on the Elimination of All
Forms of Discrimination against Women of 18December 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 16November 1945(hereinafter the "Unesco Constitution")
(as well as Article 9 of the Convention on the Privileges and Immunities of the Specialized
Agencies of 21 November 1947, which is "a1soapplicable to Unesco"), Article 30, paragraph 1, of
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
of 10 December 1984 (hereinafter the "Convention against Torture"), and Article 14, paragraph 1,
of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation of 23 September 1971 (hereinafter the "Montreal Convention"). The Congo furthermore
maintains that the 1969Vienna Convention on the Law of Treaties gives the Court jurisdiction to
settle disputes arisingfrom the violation of peremptory norms (jus cogens) in the area of human
rights, as those norms are reflected in a number of international instruments.
The Court recalls that on the same day the Congo had submitted a request for the indication
of provisional measures.
Reasoning of the Court
In its Order, the Court first emphasizes that it "is deeply concerned by the deplorable human
tragedy, loss of life, and enormous suffering in the east of the Democratie Republic of the Congo
resulting from the continued fighting there". Mindful of the purposes and principles of the United
Nations Charter and of its own responsibilities in the maintenance of peace and security under the
Charter and its Statute, the Court "finds it necessary to emphasize that all parties to proceedings
before it must act in conformity with their obligations pursuant to the United Nations Charter and
other rules of international law, including humanitarian law". The Court considers that it "cannot
in the present case over-emphasize the obligation borne by the Congo and Rwanda to respect the
provisions of the Geneva Conventions of 12August 1949 and of the first Protocol additional to
those Conventions, of 8June 1977, relating to the protection of victims of international armed
conflicts, to which instruments both of them are parties".
The Court then points out that it "does not automatically havejurisdiction over legal disputes
between States" and that "one of the fundamental principles of its Statute is that it cannot decide a
dispute between States without the consent of those Statesto itsjurisdiction". Moreover it cannot
indicate provisional measures without its jurisdiction in the case being established prima facie (at
first sight).
Jurisdiction ofthe Court
With regard to its jurisdiction, the Court observes that, in accordance with Article 36,
paragraph 2, of the Statute, the Congo {then Zaire), by means of a declaration dated
8 February 1989, recognized the compulsory jurisdiction of the Court in relation to any State
accepting the same obligation; that Rwanda on the other hand has not made such a declaration;
that the Court accordingly will consider its prima facie jurisdiction solely on the basis of the
treaties and conventions relied upon by the Congo pursuant to Article 36, paragraph 1, of the -3-
Statute, providing: "The jurisdiction of the Court comprises ali cases which the parties refer to it
and ali matters specialiy provided for in the Charter of the United Nations or in treaties and
conventions in force."
The Convention against Torture
The Court notes that the Congo bas been a party to that Convention since 1996, but that
Rwanda stated that it is not, and bas never been, party to the 1984 Convention against Torture. The
Court finds that such is indeed the case.
The Convention on Racial Discrimination
The Court first notes that both the Congo and Rwanda are parties to the Convention on
Racial Discrimination; that however Rwanda's instrument of accession to the Convention includes
a reservation reading as foliows: "The Rwandese Republic does not consider itself as bound by
article 22 [the dispute settlement clause] of the Convention." It also notes that in the present
proceedings the Congo bas chalienged the validityof that reservation. The Court observes that the
Convention on Racial Discrimination prohibits reservations incompatible with its object and
purpose; that under Article 20, paragraph 2, ofthe Convention, "[a] reservation shaHbe considered
incompatible . . . if at least two-thirds of the States Parties to this Convention object to it"; that
such bas not been the case in respect of Rwanda's reservation concerning the jurisdiction of the
Court; that that reservation does not appear incompatible with the object and purpose of the
Convention; and that the Congo did not object to that reservation when it acceded to the
Convention. The Court concludesthat Rwanda's reservation is prima facie applicable.
The Genocide Convention
The Court first notes that both the Congo and Rwanda are parties to the Genocide
Convention; that however Rwanda's instrument of accession to the Convention, includes a
reservation worded as foliows: "The Rwandese Republic does not consider itself as bound by
article IX [the dispute settlement clause] of the Convention." It also notes that in the present
proceedings the Congo bas chaliengedthe validityof that reservation. The Court observes "that the
rights and obligations enshrined bythe Convention are rights and obligations erga omnes" and that,
as it already bad occasion to point out, "the ergaomnes character of a norm and the rule of consent
to jurisdiction are two different things" and that it does not foliow from the mere fact that rights
and obligations erga omnes are at issue in a dispute that the Court bas jurisdiction to adjudicate
upon that dispute. The Court then takes note of the fact that the Genocide Convention does not
prohibit reservations; that the Congo did not object to Rwanda's reservation when it was made;
and that that reservation does not bear on the substance of the law, but only on the Court's
jurisdiction. The Court finds that that reservation therefore does not appear contrary to the object
and purpose ofthe Convention.
The Vienna Convention on the Law ofTreaties
The Court considers that Article 66 of the Vienna Convention on the Law of Treaties must
be read in conjunction with Article 65, entitled "Procedure to be foliowed with respect to
invalidity, termination, withdrawal from or suspension of the operation of a treaty". It observes
that the Congo does not maintain at the present time that there is a dispute, which could not be
resolved under the procedure prescribed in Article65 of the Vienna Convention, between it and
Rwanda concerning a conflict between a treaty and a peremptory norm of international law; and
that the object of Article 66 is not to allow for the substitution of the judicial settlement, arbitration
and conciliation procedures under the Vienna Convention on the Law of Treaties for the settlement
machinery for disputes relating to the interpretationor application of specifie treaties, notably when
a violation ofthose treaties bas been alleged. -4-
The Convention on Discrimination against Women
The Court first notes that both the Congo and Rwanda are parties to the Convention on
Discrimination against Women. lt then considers that at this stage in the proceedings the Congo
bas not shown that its attempts to enter into negotiations or undertake arbitration proceedings with
Rwanda concemed the application of Article 29 of the Convention on Discrimination against
Women; and that neither bas the Congo specified which rights protected by that Convention have
allegedly been violated by Rwanda and should be the object of provisional measures. The Court
concludes that 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.
The WHOConstitution
The Court frrst notes that both the Congo and Rwanda are parties to the WHO Constitution
and that both are thus members of that Organization. The Court considers however that at this
stage in the proceedings the Congo bas also not shown that the preconditions on the seisin of the
Court set by Article 75 of the WHO Constitution have been satisfied; and that moreover an initial
examination of that Constitution shows that Article 2 thereof, relied on by the Congo, places
obligationsonthe Organization, not on the member States.
The Unesco Constitution
The Court notes that in its Application the Congo invokes Article 1of the Constitution and
maintains that "[o]wing to the war, the Democratie Republic of the Congo today is unable to fulfil
its missions within Unesco ... ". lt take notes of the fact that both the Congo and Rwanda are
parties to the Unesco Constitution.
The Court observes however that Article XIV, paragraph 2, provides for the referral, under
the conditions established in that provision, of disputes concerning the Unesco Constitution only in
respect of the interpretation of that Constitution; that that does not appear to be the object of the
Congo's Application; and that the Application does not therefore appear to fall within the scope of
that Article.
The Montreal Convention
The Court first notes that both the Congo and Rwanda are parties to the Montreal
Convention. lt considers that the Congo has not however asked the Court to indicate any
provisional measure relating to the preservation of rights which it believes it holds under the
Montreal Convention; and that accordingly the Court is not required, at this stage in the
proceedings, to rule, even on a prima facie basis, on its jurisdiction under that Convention nor on
the conditionsprecedent to the Court'sjurisdiction contained therein.
Conclusions
The Court concludes that it follows from the preceding considerations taken together that the
Court does not in the present case have the prima facie jurisdiction necessary to indicate those
provisionalmeasures requestedby the Congo.
* - 5 -
However, the findings reached by the Court in the present proceedings in no way prejudge
the question of the jurisdiction of the Court to deal with the merits of the case or any questions
relating to the admissibility of the Application, or relating to the merits themselves; and they leave
unaffected the right of the Governments of the Congo and of Rwanda to submit their arguments in
respect of those questions; in the absence of a manifest lack ofjurisdiction, the Court finds that it
cannot grant Rwanda's request that the case be removed from the List.
The Court finally recalls that"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 beard full legal
arguments by both parties".
It underlines that whether or not States accept the jurisdiction of the Court, they remain in
any event responsible for acts attributable to them that violate international law; that in particular
they are requiredto fulfil their obligations under the United Nations Charter; that the Court cannot
but note in this respect that the Security Council bas adopted a great number of resolutions
concerning the situation in the region, in particular resolutions 1234(1999), 1291(2000),
1304(2000), 1316(2000), 1323 (2000), 1332 (2000), 1341 (2001), 1355(2001), 1376 (2001),
1399(2002) and 1417 (2002); that the SecurityCouncil bas demanded on many occasions that "ali
the parties to the conflict put an . . . end to violations of human rights and international
humanitarian law"; and that it bas inter alia reminded "ail parties of their obligations with respect
to the security of civilian populations under the Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War of 12 August 1949", and added that "ali forces
present on the territory of the Democratie Republic of the Congo are responsible for preventing
violations of international humanitarian law in the territory undertheir control". The Court stresses
the necessity for the Parties to these proceedings to use their influence to prevent the repeated grave
violations of human rights and international humanitarian law which have been observed even
recently.
Composition of the Court
The Court was composed as follows: President Guillaume; Vice-President Shi;
Judges Ranjeva, Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judges ad hoc Dugard, Mavungu;
Registrar Couvreur.
Judges Koroma, Higgins, Buergenthal and Elaraby append declarations to the Order of the
Court; Judges ad hoc Dugard and Mavungu append separate opinions to the Order of the Court.
A brief summary of the declarations and opinions is published as an addendum to the present
Press Release. The full text of the Order, declarations and opinions appears on the Court's website
Information Department:
Mr. ArthurWitteveen, First Secretaryof the Court (tel: +31 70 302 2336)
Mrs. Laurence Blairon and Mr. Boris Heim, Information Officers (tel: +31 70 3022337)
E-mail address: [email protected] Annex to Press Communiqué2002119
Declaration of Judge Koroma
Judge Koroma voted in favour of the Order because, in his view, it has attempted to address
sorne of the concerns at the heart of the request.
Referring to the allegations and contentions of each of the Parties, he observes that from the
information submitted to the Court it is apparent that real, serious threats do exist to the population
of the region concerned, including the threat to life.
Judge Koroma is aware that the Court has set out certain criteria to be satisfied before
granting a request for the indication of provisional measures. Among these are that there must be
prima facie or potential jurisdiction, urgency, and the risk of irreparable harm if an order is not
granted. But these criteria, in his view, have to be considered in the context of Article 41, which
authorizes the Court to "indicate", if it considers that the circumstances so require, any provisional
measure which ought to be taken to preserve the respective rights of either party, and of the Court's
role in maintaining international peace and security, includinghuman security and the right to life.
In Judge Koroma's view, the Court, although it has been unable to grant the request for want
of prima facie jurisdiction, has, in paragraphs 54, 55, 56 and 93 of the Order, rightly and
judiciously expressed its deep concern over the deplorable human tragedy, loss of life and
enormous suffering in the east of the Democratie Republic of the Congo resulting from the fighting
there. lt has also rightly emphasized that whether or not States accept the jurisdiction of the Court,
they remain, in any event, responsible for acts attributableto them that violate international law and
that they are required to fulfil their obligations under the United Nations Charter and in respect of
the relevant Security Council resolutions.
Judge Koroma concludes by stating that, if ever a dispute warranted the indication of interim
measures of protection, this is it. But he is of the opinion that, while it was not possible for the
Court to grant the request owing to certain missing elements, the Court has, in accordance with its
obiter dicta in the cited paragraphs, nevertheless discharged its responsibilities in maintaining
international peace and security and preventing the aggravation of the dispute. The position taken
by the Court can only be viewed as constructive, without however prejudging the merits of the
case. lt is a judicial position and it is in the interest of ali concemed to hearken to the call of the
Court.
Declaration of Judge Higgins (full text)
1do not agree with one of the limbs relied on by the Court in paragraph 79 of its Order.
lt is weil established in international human rights case law that it is not necessary, for the
purpose of establishing jurisdiction over the merits, for an applicant to identify which specifie
provisions of the treaty said to found jurisdiction are alleged to be breached. See, for example, the
findings of the Human Rights Committee on Stephensv. Jamaica (United Nations, Official
Records of the General Assembly, Fifty-First Session, Supplement No. 40 (A/51140)); B.d.B.
et al v. The Netherlands (ibid., Fortv-Fourth Session, Supplement No. 40 (A/45/40)); and many
other cases. A fortiori is there no reason for the International Court of Justice, in establishing
whether it has prima facie jurisdiction for purposes of the indication of provisional measures, to
suggest a more stringent test. It should rather be for the Court itself, in accordance with the usual
practice, to see whether the claims made by the Congo and the facts alleged could prima facie - 2 -
constitute violations of any particular clause in the Convention on the Elimination of All Forms of
Discrimination against Women, the instrument relied on by the Congo as providing the Court with
jurisdiction over the merits.
However, as I agree with the other elements in paragraph 79, and with the legal consequence
that flows from them, I have voted in favour of the Order.
Declaration of Judge Buergenthal
While agreeing with the Court's decision, Judge Buergenthal disagrees with the inclusion in
the Court's Order of the language found in its paragraphs 54-56 and 93. He does not object to the
high-minded propositions they express, but considers that they deal with matters the Court has no
jurisdiction to address once it has ruled that it lacks prima facie jurisdiction to issue the requested
provisional measures.
In his view, the Court's function is to pronounce itself on matters within itsjurisdiction and
not to voice persona! sentiments or to make comments, general or specifie, which, despite their
admittedly "feel-good" qualities, have no legitimate place in this Order.
Judge Buergenthal emphasizes that the Court's own "responsibilities in the maintenance of
peace and security under the Charter", which it invokes in paragraph 55, are not general. They are
strictly limited to the exercise of its judicial functions in cases over which it has jurisdiction.
Hence, when the Court, without having the requisite jurisdiction, makes pronouncements such as
those found in paragraph 55, for example, which read Iike preambles to resolutions of the United
Nations General Assembly or SecurityCouncil, it is not acting Iikeajudicial body.
As for paragraph 56, Judge Buergenthal believes that the fact that this statement is
even-handed in that it addresses both Parties to the case, does not make it any more appropriate
than it would be if it had been addressedto only one of them. It is inappropriate, frrst, because the
Court has nojurisdiction in this case to cali on the States parties to respect the Geneva Conventions
or the other legal instruments and principles mentioned in the paragraph. Second, since the request
for preliminary measures by the Democratie Republic of the Congo sought a cessation by Rwanda
of activities that might be considered to be violations of the Geneva Conventions, the Court's
pronouncement in paragraph 56 can be deemed to !end sorne credence to this claim. The latter
conclusion is strengthened by the language of paragraph 93, which bears close resemblance to
sorne of the language the Court would most likely employ if it had granted the provisional
measures request. The fact that the paragraph is addressed to both Parties is irrelevant, for in
comparable circumstances the Court has issued provisional measures formulated in similar
language addressed to both Parties although they were requested by only one of them.
Judge Buergenthal considers that, whether intended or not, the Court's pronouncements,
particularly those in paragraphs 56 and 93, might be deemed to lend credence to the factual
allegations submitted by the party seeking the provisional measures. In the future, they might also
encourage States to file provisional measures requests, knowing that, even though they would be
unable to sustain the burden of demonstrating the requisite prima facie jurisdiction, they would
obtain from the Court sorne pronouncements that could be interpreted as supporting their claim
against the other party.
Declaration of Judge Elaraby
1. He voted against the rejection of the request for the indication of provisional measures
submitted by the Democratie Republic of the Congo, principally because, in accordance with its
Statute and its presentjurisprudence, the Court should, in principle grant a request for provisional - 3 -
measures once the requirements of urgency on the one hand and likelihood of irreparable damage
to the rights of one or both parties to a dispute, on the other, have been established. He is of the
opinion that the Court has, under Article 41 of the Statute, a wide-ranging power of discretion to
indicate provisional measures. The jurisprudence of the Court has progressively, albeit gradually,
advanced from its earlier strict insistence on established jurisdiction to acceptance of prima facie
jurisdiction as the threshold for the exercise of the Court's powers under Article 41 of the Statute.
This progressive shift has not, in his view, been reflected in the Order.
2. His reading of the two subparagraphs together convinces him that the Court is vested with
a wide scope of discretion to decide on the circumstances warranting the indication of provisional
measures. The reference to the Security Council underlines the prominence of the link between the
Court and the Council in matters related to the maintenance of international peace and security.
The Statute moreover does not attach additional conditions to the authority of the Court to grant
provisional measures. In point of fact, the jurisdiction of the Court need not be established at this
early stage of the proceedings.
3. In his view, the Montreal Convention should have been regarded as a suitable instrumental
basis to provide a prima faciejurisdiction for the indication of provisional measures.
4. He is ofthe opinion that the circumstances of the case reflect an urgent need to protect the
rights and interestsofthe Democratie Republic of the Congo.
Separate opinion of Judge Dugard
In his separate opinion Judge Dugard endorses the Court's Order that the Congo has failed to
show, prima facie, a basis on which the jurisdiction of the Court might be established and that, as a
consequence, its request for provisional measures should be rejected. He disagrees, however, with
the Court's Order that the case should not be removed from its List.
Judge Dugard maintains that a case should be removed from the Court's List where there is
no reasonable possibility that the applicant might in future be able to establish the jurisdiction of
the Court in the dispute submitted to it on the basis of the treaties invoked for jurisdiction, on the
ground that in such a case there is a manifest lack ofjurisdiction -the test employed by the Court
in previous decisions for moving a case from its List.
An examination of the treaties invoked by the Congo to found jurisdiction in this case Ieads
him to conclude that they manifestly cannot provide a basis for jurisdiction. Consequently, he
maintains that the case should have been removed from the List.
Judge Dugard warns that, as a result of the finding of the Court in the LaGrand case in 2001
that an Order for provisional measures is legally binding, there is a Iikelihood that the Court will be
inundated with requests for provisional measures. In order to guard against an abuse of this
procedure the Court should adopt a strict approach to applications in which the basis for
jurisdiction is manifestly unfounded by removing such cases from the List.
Judge Dugard expresses his support for the general comments made by the Court on the
tragic situation in the eastern Congo. He stresses that these comments deploring the suffering of
peopléin the eastern Congo resulting from the conflict in that region and calling upon States to act
in conformity with international law are addressed to both Rwanda and the Congo, and in no way
prejudge the issues in this case. -4-
Separate opinion of Judge Mavungu
Judge Mavungu approves of the generalterms of the Order of the Court. However, owingto
the nature of the dispute, the Court, in his view, could have prescribed provisional measures
notwithstanding the narrowness ofthe basesof the Court'sjurisdiction.
His opinion addresses two main questions: the basis of the Court's jurisdiction and the
requirements goveming the indication of provisional measures. In respect of the first question, he
notes that the Democratie Republic of the Congo advanced several legal grounds to establish the
Court's jurisdiction: the Congo's February 1989 declaration recognizing the compulsory
jurisdictionof the Court, certain compromissory clauses and norms of jus cogens. Severa}of the
grounds asserted by the Applicant could not found the jurisdiction of the Court: the Congo's
1989 declaration, the Unesco Constitution of 1946 and the 1984 Convention against Torture. In
accordance with the Court's settled jurisprudence, its jurisdiction can be established only on the
basis of States' consent.
On the other hand, he considers that the Court's jurisdiction could be founded prima facie
under the compromissory clauses appearing in the WHO Constitution, the Montreal Convention of
1971 and the 1979 Convention on Discrimination against Women. The Rwandese Republic's
reservation in respect of the jurisdictional clause in Article IX of the 1948 Genocide Convention is,
in his view, contrary to the object and purposeofthat Convention.
In accordance with Article 41 of the Statute and Article 73 of the Rules of Court, as weil as
the Court'swell-settledjurisprudence, the granting ofprovisional measures is dependent onvarious
factors: urgency, preservation of the rights of the parties, non-aggravation of the dispute andprima
facie jurisdiction. He believes that those conditions have been satisfied in the present case and that
this shouldhave led the Courtto indicate severa!provisional measures.
Armed activities on the territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) - The Court rejects the request for the indication of provisional measures submitted by the Congo, as well as the request of Rwanda that the case be removed from the List