INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928
Website: www.icj-cij.org
Summary
Not an official document
2006/1 Summary
3 February 2006
Armed Activities on the Territory of the Congo (New Application: 2002)
(Democratic Republic of the Congo v. Rwanda)
Jurisdiction of the Court and Admissibility of the Application
Summary of the Judgment of 3 February 2006
History of the proceedings and submissions of the Parties (paras. 1-13)
The Court begins by recapitulating the various stages of the proceedings.
On 28 May 2002 the Government of the Democratic Republic of the 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 the Application
the DRC stated that “[the] flagrant and serious violations [of human rights and of international
humanitarian law]” of which it co mplained “result from acts of armed aggression perpetrated by
Rwanda on the territory of the Democratic Repu blic of the Congo in flagrant breach of the
sovereignty and territorial integrity of [the lr], as guaranteed by th e 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: Ar ticle22 of the International Convention on the
Elimination of All Forms of Racial Discrimination of 21December1965 (hereinafter the
“Convention on Racial Discrimination”); Article29, paragraph1, 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 9December1948 (hereinafter the “Genocide
Convention”); Article75 of the Constitution of the World Health Organization of 22July1946
(hereinafter the “WHO Constitution”); Article XIV, paragraph 2, of the Constitution of the United
Nations Educational, Scientific and Cultural Organization of 16November1945 (hereinafter the
“Unesco Constitution”) and Article9 of the Convention on the Privileges and Immunities of the
Specialized Agencies of 21November1947 (her einafter the “Convention on Privileges and
Immunities”); Article30, paragraph1, of th e Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment of 10December1984 (hereinafter the
“Convention against Torture”); and Article14, paragraph1, of the Montreal Convention for the
Suppression of Unlawful Acts against the Safe ty of Civil Aviation of 23September1971
(hereinafter the “Montreal Convention”). - 2 -
The DRC further contended in its Application that Article66 of the Vienna Convention on
the Law of Treaties of 23May1969 established the jurisdiction of the Co urt 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.
On 28May2002 the DRC also submitted a request for the indication of provisional
measures pursuant to Article41 of the Statute of the Court and Articles73 and 74 of its Rules.
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 MJre .an-Pierre Mavungu, and Rwanda
Mr.ChristopherJohnRobertDugard. At the hearings on the request for the indication of
provisional measures held on 13 and 14June20 02, Rwanda asked the Court to remove the case
from the List for manifest lack of jurisdiction. By Order of 10July2002 the Court 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.
At a meeting held on 4 September 2002 by the President of the Court with the Agents of the
Parties, Rwanda proposed that the procedure provide d for in Article 79, paragraphs 2 and 3, of the
Rules of Court be followed, and that the question s of jurisdiction and admissibility in the case
therefore be determined separate ly before any proceedings on the merits. The DRC stated that it
would leave the decision in this regard to the Court. By Order of 18September2002 the Court
decided that the written pleadings would first be addressed to the questions of the jurisdiction of the
Court and of the admissibility of the Application and fixed time-limits for the filing of a Memorial
by Rwanda and a Counter-Memorial by the DRC. Those pleadings were filed within the
time-limits so prescribed. In its Counter-Memori al (and later in the hearings) the DRC asserted
two additional bases of jurisdiction: 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.
Public hearings were held between 4 and 8July2005, at which 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 jurisdic tion and admissibility raised by Rwanda are
unfounded;
2. consequently, to find that the Court ha s jurisdiction to entertain the case on the
merits and that the Application of the Democratic Republic of the Congo is
admissible as submitted; - 3 -
3. to decide to proceed with the case on the merits.”
Object of the present proceedings limited to the questions of the Court’s jurisdiction and the
admissibility of the DRC’s Application (para. 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 the dispute between the DRC and Rwanda. In accordance with the
decision taken in its Order of 18September2002, the Court is required to address only the
questions of whether it is competent to hear th e dispute and whether the DRC’s Application is
admissible.
Examination of the bases of jurisdiction put forward by the DRC (paras. 15-125)
The Court begins its examination of the 11 bases of jurisdiction put forward by the DRC. It
recalls the Parties’ arguments in respect of them and reaches the following conclusions:
(1) 1984 Convention against Torture (para. 16)
The Court points out that it had noted Rwanda’s statement that it “is not, and never has been,
party” to this Convention. Observing that the DRC did not raise any argument in response to this
contention, the Court accordingly concludes that the DRC cannot rely upon this Convention as a
basis of jurisdiction.
(2) Convention on Privileges and Immunities (para. 17)
The Court recalls that, in its Order of 10 July 2002, it stated that the DRC did not appear to
found the jurisdiction of the Court on this Convention, and that the Court was accordingly not
required to take the instrument into consideration in the context of the request for the indication of
provisional measures. Since the DRC has also not sought to invoke this Convention in the present
phase of the proceedings, the Court does not take it into consideration in its Judgment.
(3) Forumprorogatum (paras. 19-22)
The DRC argues on this point 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”. 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.
In the present case the Court notes that Rwanda has expressly and repeatedly objected to its
jurisdiction at every stage of the proceedings. Rw anda’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 cas e, 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 ov er the merits, inasmuch as the very purpose of
this participation was to challenge that jurisdiction. - 4 -
(4) Court’s Order of 10 July 2002 (paras. 23-25)
To found the jurisdiction of the Court, the DRC also relies on one of the Court’s findings in
its Order of 10 July 2002, whereby it stated that, “i n 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 jurisdicti on. On this point, for its part Rwanda recalls
that in this same Order the Court clearly stated th at 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.
The Court observes on this subject 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.
According to the Court, the fact that it did not conclude in its Order of 10July2002 that it
manifestly lacked jurisdiction cannot therefor e amount to an acknowledgment that it has
jurisdiction. On the contrary, the Court points out that from the outset it had serious doubts
regarding its jurisdiction to entertain the DRC’s App lication, for in that same Order it justified its
refusal to indicate provisional measures by the l ack of primafacie jurisdiction. In declining
Rwanda’s request to remove the case from the Li st, the Court simply reserved the right fully to
examine further the issue of its jurisdiction at a later stage.
(5) Article IX of the Genocide Convention (paras. 28-70)
The Court notes that both the DRC and Rwanda are parties to the Genocide Convention, the
DRC having acceded on 31May1962 and Rwan da on 16April1975. The Court observes,
however, that Rwanda’s instru ment 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.” Article IX
provides: “Disputes between the Contracting Partie s relating to the interpretation, application or
fulfilment of the present Convention, including t hose relating to the responsibility of a State for
genocide or for any of the other acts enumerated in articleIII, sha ll be submitted to the
International Court of Justice at the request of any of the parties to the dispute.”
The Court also notes that the Parties take opposing views on two questions: first, on
whether, in adopting “Décret-loi No.014/01 of 15February1995 withdrawing all reservations
entered by the Rwandese Republic at the accession, approval and ratification of international
instruments”, Rwanda effectively withdrew its reservation to ArticleIX 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,
according to which, “[t]he few [human rights] inst ruments not yet ratified” by Rwanda at that date
“will shortly be ratified” and reservations “not yet withdrawn will shortly be withdrawn”.
In regard to the first question, the Court notes that Décret-loi No.014/01 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 Mi nister and Minister of Justice of the Rwandese
Republic. Article 1 of this décret-loi, which contains three articles, provides that “[a]ll reservations
entered by the Rwandese Republic in respect of the accession, approva l and ratification of
international instruments are withdr awn”; Article2 states that “[a]ll prior provisions contrary to
the present décret-loi are abrogated”; while Article 3 provides that “[t]his décret-loi shall enter into
force on the day of its publication in the Offi cial Journal of the Rwandese Republic”. The
décret-loi was published in the Official Journal of the Rwandese Republic and entered into force.
The validity of this décret-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 décret-loi within the - 5 -
domestic legal order of Rwanda is different from that of its eff ect 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 orde r and the implementation of that decision by the
competent national authorities within the internati onal 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 contra ry, 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.
The Court observes that in this case it ha s not been shown that Rwanda notified the
withdrawal of its reservations to the other States parties to the “international instruments” referred
to in Article1 of décret-loi No.014/01, 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 décret-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.
The Court notes that, as regards the Genocid e Convention, the Government of Rwanda has
taken no action at international level on the basis of the décret-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. The Court notes that it has no evidence that Rwanda sent any such notice to the
Secretary-General.
The Court finds that the adoption and publication of décret-loi No0 . 14/01 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.
In respect of the second question, that of the legal effect of the statement made on
17March2005 by MsMukabagwiza, Minister of Justice of Rwanda, the Court begins 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 internatio nal 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, 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 un ilateral acts having the force of international commitments. The
Court notes, however, that with increasing frequ ency 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 th eir 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.
In this case, the Court notes first that Ms Mukabagwiza spoke before the United Nations
Commission on Human Rights in her capacity 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 huma n 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. - 6 -
In order to determine the legal effect of that statement, the Court examines its actual content
as well as the circumstances in wh ich it was made. The Court recalls that a statement of this kind
can create legal obligations only if it is made in clear and specific terms. The Court observes that
in her statement the Minister of Justice of Rwanda did not refer explicitly to the reservation made
by Rwanda to ArticleIX of th e Genocide Convention. The statement merely raises in general
terms the question of Rwandan reservations and simply indicates that “past reservations not yet
withdrawn will shortly be withdrawn”, withou t setting out any precise time-frame for such
withdrawals. It follows that the statement was not made in sufficiently specific terms in relation to
the particular question of the withdrawal of reserv ations. Given the general nature of its wording,
the statement cannot therefore be considered as co nfirmation by Rwanda of a previous decision to
withdraw its reservation to ArticleIX of the Genocide Convention, or as any sort of unilateral
commitment on its part having legal effects in re gard to such withdrawal; at most, it can be
interpreted as a declaration of intent, very general in scope.
The Court lastly addresses 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 ins tituting proceedings, the Court should not, however,
penalize a defect in procedure which the Applicant could easily remedy. 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.
The Court then turns to the DRC’s argument that Rwanda’s reservation is invalid. 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 St ates” including Rwanda, inasmuch as it contains
norms of juscogens . Rwanda obse rves inter alia 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”.
The Court reaffirms in this regard 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)”. It follows that “the rights and
obligations enshrined by the Convention are rights and obligations erga omnes ”. 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 tw o different things”, 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 Co urt’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, ca nnot 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. The Court adds that Rw anda’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 Rwanda’s reservation, which is meant to exclude a particular
method of settling a dispute relating to the inte rpretation, application or fulfilment of the
Convention, is to be regarded as being incompatible with the object and purpose of the Convention.
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. - 7 -
The Court concludes from the foregoing that, having regard to Rwanda’s reservation to
Article IX of the Genocide Convention, this Articl e cannot constitute a basis for jurisdiction in the
present case.
(6) Article 22 of the Convention on Racial Discrimination (paras. 71-79)
The Court notes that both the DRC and Rwanda are parties to the Convention on Racial
Discrimination, the DRC having acceded thereto on 21April1976 and Rwanda on 16April 1975.
Rwanda’s instrument of accession to the Co nvention, as deposited with the United Nations
Secretary-General, does however include a rese rvation reading as follo ws: “The Rwandese
Republic does not consider itself as bound by artic le22 of the Convention”. Under that article:
“Any dispute between two or more States Parties withrespect 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.”
The Court first addresses the DRC’s argument th at 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... inte rnational instruments’” relating to
human rights. Without prejudice to the applicability mutatis mutandis to the Convention on Racial
Discrimination of the Court’s reasoning and conc lusions in respect of the DRC’s claim that
Rwanda withdrew its reservatio n to the Genocide Convention, the Court observes that the
procedures for withdrawing a reservation to the Convention on Racial Discrimination are expressly
provided for in Article20, paragraph3, of that Convention, which states: “Reservations may be
withdrawn at any time by notification to this effe ct addressed to the Secretary-General. Such
notification shall take effect on the date on whic h it is received.” However, there is no evidence
before the Court of any notifica tion by Rwanda to the United Nations Secretary-General of its
intention to withdraw its reservation. The Cour t accordingly concludes that the respondent State
has maintained that reservation.
Regarding the DRC’s argument that the reservation is invalid, the Court notes that the
Convention on Racial Discrimination prohibits re servations incompatible with its object and
purpose. The Court observes in this connection that, under Article20, paragraph2, 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 th e Court’s jurisdiction. Without prejudice to the
applicability mutatis mutandis to Rwanda’s reservation to Article22 of the Convention on Racial
Discrimination of the Court’s reas oning and conclusions in respect of Rwanda’s reservation to
ArticleIX of the Genocide Convention, 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.
In relation to the DRC’s argument that the rese rvation 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 conflic t with a peremptory norm, the Court refers to its
reasoning when dismissing the DRC’s similar argu ment in regard to Rwanda’s reservation to
Article IX of the Genocide Convention.
The Court concludes from the foregoing that, having regard to Rwanda’s reservation to
Article 22 of the Convention on Racial Discrimination, this instrument cannot constitute a basis for
jurisdiction in the present case. - 8 -
(7) Article 29, paragraph 1, of the Co nvention on Discrimination Against Women
(paras. 80-93)
The Court notes that both the DRC and Rwanda are parties to the Convention on
Discrimination Against Women, the DRC having ratified it on 17October1986 and Rwanda on
2March1981. It also notes that Article29 of this Convention gives the Court jurisdiction in
respect of any dispute between States parties co ncerning its interpretation or application, on
condition that: it has not been po ssible 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 unab le 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. It must therefore consider whether the preconditions on its seisin
set out in the said Article 29 have been satisfied in this case.
The Court however first addresses the DRC’s argument that the objection based on
non-fulfilment of the preconditions set out in the compromissory clauses, and in particular in
Article29 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 ex tent accepted by them. When that consent is
expressed in a compromissory clause in an intern ational agreement, any conditions to which such
consent is subject must be regarded as constitu ting the limits thereon. The Court accordingly
considers that the examination of such conditio ns relates to its jurisdiction and not to the
admissibility of the application. It follows that in the present case the cond itions for seisin of the
Court set out in Article 29 of the Convention on Discrimination Against Women must be examined
in the context of the issue of the Court’s jurisd iction. This conclusion applies mutatis mutandis to
all of the other compromissory clauses invoked by the DRC.
The Court then considers 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. It notes that 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 Comm ission on Human and Peoples’ Rights of the
Organization of African Unity. The Court recalls that, in its Counter-Memorial and at the hearings,
the DRC presented these protests as proof that “the DRC has satisfied th e preconditions to the
seisin of the Court in the compromissory cl auses 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 Article29 of the Convention, that Article requires also that
any such dispute be the subject of negotiations. The Court states that the evidence has not satisfied
it that the DRC in fact sought to commence ne gotiations in respect of the interpretation or
application of the Convention.
It adds that the DRC has also failed to prove any attempts on its part to initiate arbitration
proceedings with Rwanda and that the Court cannot accept the DRC’s argument that the
impossibility of opening or a dvancing 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. 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 to that proposal. - 9 -
It follows from the foregoing that Article29, paragraph1, of the Convention on
Discrimination Against Women cannot serve to foun d the jurisdiction of the Court in the present
case.
(8) Article 75 of the WHO Constitution (paras. 94-101)
The Court observes that the DRC has been a party to the WHO Constitution since
24February1961 and Rwanda since 7November1962 and that both are thus members of that
Organization. The Court furthe r notes that Article75 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 in terpretation 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.
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 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 disput e by negotiation with Rwanda or that the World
Health Assembly had been unable to settle it.
The Court accordingly concludes that Article 75 of the WHO Constitution cannot serve to
found its jurisdiction in the present case.
(9) Article XIV, paragraph 2, of the Unesco Constitution (paras. 102-109)
The Court notes that both the DRC and Rwa nda are parties to the Unesco Constitution and
have been since 25November1960 in the case of the DRC and 7November1962 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 conc erning 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 ArticleI thereof for the sole
purpose of maintaining that “[o]wing 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 Co nstitution. Thus the DRC’s App lication does not fall within the
scope of Article XIV of the Constitution.
The Court further considers that, even if the existence of a question or dispute falling within
the terms of the above provision were establishe d, the DRC has failed to show that the prior
procedure for seisin of the Court pursuant to th at provision and to Article38 of the Rules of
Procedure of the Unesco General Conference was followed.
The Court accordingly concludes that Article XIV, paragraph2, of the Unesco Constitution
cannot found its jurisdiction in the present case.
(10) Article 14, paragraph 1, of the Montreal Convention (paras. 110-119)
The Court notes that both the DRC and Rwanda are parties to 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 Article14, paragraph1, of the Montreal Convention gives the Court jurisdiction in - 10 -
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 unde r this provision, the Court must therefore first
ascertain whether there is a dispute between the Pa rties relating to the interpretation or application
of the Montreal Convention which could not have been settled by negotiation.
The Court observes in this regard that the DR C has not indicated to it which are the specific
provisions of the Montreal Convention which coul d apply to its claims on the merits. In its
Application the DRC confined itself to invoking that Convention in connection with the destruction
shortly after take-off from Kindu Airport of a civil aircraft belonging to Congo Airlines. Even if it
could be established that the fact s 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 th at 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 no t shown that it made a pr oposal to Rwanda that
arbitration proceedings should be organized, and that the latter failed to respond to that proposal.
The Court considers that Article14, paragr aph1, of the Montreal Convention cannot
therefore serve to found its jurisdiction in the present case.
(11) Article 66 of the Vienna Convention on the Law of Treaties (paras. 120-125)
To found the jurisdiction of the Court in the present case, the DRC relies finally on
Article66 of the Vienna Convention on th e Law of Treaties, which provides inter alia that “[a]ny
one of the parties to a dispute concerning the applic ation or the interpretation of article 53 or 64”,
relating to conflicts between treaties and peremptory norms of general international law, “may, by a
written application, submit it to the Internationa l Court of Justice for a decision unless the parties
by common consent agree to submit the dispute to arbitration”.
The Court recalls that the DRC explained at the hearings that Artic le66 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 ArticleIX 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”.
In reply to Rwanda’s reliance at the hearings on Article 4 of the Vienna Convention, which
provides that the Convention applies only to treati es 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 (Articles53 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”.
The Court recalls that Article4 of the Vienna Convention on the Law of Treaties provides
for the non-retroactivity of that Convention in th e following terms: “Without prejudice to the
application of any rules set forth in the present Convention to which treaties would be subject under
international law independently of the Conventio n, the Convention applies only to treaties which - 11 -
are concluded by States after the entry into forc e of the present Convention with regard to such
States.”
In this connection, the Court notes firs t that the Genocide Convention was adopted on
9December1948, the DRC and Rwanda having acceded to it on 31May 1962 and 16April1975
respectively; and that the Convention on Racial Discrimination was adopted on
21December1965, the DRC and Rw anda having acceded on 21April1976 and 16April1975
respectively. The Court notes secondly that the Vienna Convention on the Law of Treaties entered
into force between the DRC and Rwanda only on 3February1980, pursuant to Article84,
paragraph2, 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 th at 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 pr inciple that its jurisdiction always depends on the
consent of the parties.
*
Lack of jurisdiction to entertain the Application; no need for the Court to rule on its admissibility
(para. 126)
The Court concludes from all of the foregoing c onsiderations that it cannot accept any of the
bases of jurisdiction put forward by the DRC in th e present case. Since it has no jurisdiction to
entertain the Application, the Court is not required to rule on its admissibility.
*
Fundamental distinction between the acceptance by States of the Court’s jurisdiction and the
conformity of their acts with international law (para. 127)
While the Court has come to the conclusion th at 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 reac hed 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. 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 betw een the question of the acceptance by States of
the Court’s jurisdiction and the conformity of thei r 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. - 12 -
*
Operative paragraph (para. 128)
The full text of the operative paragraph reads as follows:
“For these reasons,
T HE 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; Judgead hoc Dugard;
AGAINST: JudgeKoroma; Judgead hoc Mavungu.”
*
JKdge OROMA appends a dissenting opinion to the Judgment of the Court; JIGGINS,
K OOIJMANS , LARABY , OWADA and SIMMA append a joint separate opinion to the Judgment of the
Court; Judge OOIJMANS appends a declaration to the Judgment of the Court;
Judge AL-K HASAWNEH appends a separate opinion to the Judgment of the Court; JLARABY
appends a declaration to the Judgment of the Court; JudgeadhoDUGARD appends a separate
opinion to the Judgment of the Court; Judge ad hAVUNGU appends a dissenting opinion to the
Judgment of the Court.
___________ Annex to Summary 2006/1
Dissenting opinion of Judge Koroma
In his dissenting opinion, JudgeKoroma analys es Rwanda’s reservation to Article IX of the
Genocide Convention, arguing that if the Court had undertaken such an analysis, it would have
found the reservation contrary to the object and purpose of the Convention and jurisdiction is
therefore proper under Article IX of the Genocide Convention.
JudgeKoroma points out that the dispute settleme nt clause in ArticleIX relates not only to
the interpretation or application of the Convention but also to the fulfilment of the Convention.
Recalling the language of ArticleIX “including th ose relating to the responsibility of a State for
genocide”, JudgeKoroma emphasizes that the monitoring function given to the Court by that
Article extends to disputes relating to State responsibility for genocide.
Judge Koroma recalls the gravity of the DRC’s allegations to the effect that Rwandan forces,
directly or through their Rassemblement cong olais pour la démocratie (RCD/Goma) agents,
committed acts of genocide against 3,500,000 C ongolese, by carrying out large-scale massacres,
assassinations and other murders targeting well-identified groups.
He notes that, while a reservation to a treaty clause concerning dispute settlement or the
monitoring of the implementation of the treaty is no t, in itself, incompatible with the object and
purpose of the treaty, it is incompatible if the pr ovision to which the reservation relates constitutes
the raison d’être of the treaty. In this regard, 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.
Analysing the structure of the Genocide Convention, JudgeKoroma notes that unlike
ArticlesIV, V, VI, and VII, ArticleIX is the only provision of the Genocide Convention with
specific language concerning the responsibility of a State for genocide. Because the power of the
Court to enquire into disputes between Contracting Parties relating to the responsibility of a State
for genocide derives from Article IX, that provision is crucial to fulfilling the object and purpose of
the Convention.
Judge Koroma then explains that the DRC’s failure to object to Rwanda’s reservation at the
time it was made is not sufficient to prevent th e Court from examining the reservation, as human
rights treaties like the Genocide Convention are not based on reciprocity between States but instead
serve to protect individuals and the internationa l community at large. He draws a parallel to
General Comment 24 of the Human Rights Committee, which noted: “The absence of protest by
States cannot imply that a reservation is either compatible or incompatible with the object and
purpose of the Covenant.”
Judge Koroma observes that, while the questionof reservations to Article IX of the Genocide
Convention came up in connection with the provisional measures orders against Spain and the
United States in the case con cerning Legality of Use of Force , the Court did not conduct a full
examination of the compatibility of a reservation to ArticleIX with the object and purpose of the
Convention because the issue had not been raised by Yugoslavia. JudgeKoroma contrasts the
present case ⎯ in which both Parties raised and argued the question ⎯ concluding that the Court
was thus entitled to examine Rwanda’s reservation in detail in the light of the object and purpose of
the Convention.
JudgeKoroma emphasizes that, in considerin g Rwanda’s position on ArticleIX, the Court
should have taken due account of the principle of good faith. In this regard, Rwanda’s prior - 2 -
declarations on the importance of human rights treaties must be juxtaposed with its present attempt
to avoid scrutiny of its own conduct. Similarly, it is neither morally right nor just for Rwanda to
shield itself from judicial scrutiny under Article IX of the Convention for the very same conduct for
which it successfully urged the establishment of an international tribunal for the prosecution of
persons responsible for genocide and other serious violations of international humanitarian law.
This prior conduct and the principle of good faith lead JudgeKoroma to take the view that,
given the nature of the Convention, and the gravity of the allegation before the Court, Rwanda
should have accepted the jurisdiction of the Court based on the principle of forum prorogatum ,
thereby allowing it to adjudicate the merits of the case. He notes that genocide has been declared
“the crime of all crimes” and “the principles underlying the [Genocide] Convention” characterized
as “principles which are recognized by civilized nations as binding on States, even without any
conventional obligation”. In his view, the letter as well as the spirit of the Convention must be
respected at all times.
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 to apply the
Convention and its principles. In JudgeKoroma’s view, apart from ArticleIX of the Genocide
Convention, sufficient material, including various other compromissory clauses, was put before the
Court for it to have been able to entertain the di spute. He also notes that the Court could have
exercised jurisdiction under the Montreal Convention for the Suppression of Unlawful Acts against
the Safety of Civil Aviation and the Convention on the Elimination of All Forms of Discrimination
Against Women.
Joint separate opinion of Judges Higgins, Kooijmans, Elaraby, Owada and Simma
Judges Higgins, Kooijmans, Elaraby, Owada and Simma in their joint separate opinion
emphasize that a proper reading of the Court’s 19 51 Advisory Opinion shows that there is no
incompatibility between certain developments in the practice of human rights courts and bodies and
the law as there stated by the International Court.
The concordance of practice is evidenced by the International Court’s Order of 10 July 2002,
at paragraph 72, and again at paragraph 67 of the present Judgment.
In their view the Court had in mind certain f actors in deciding on several recent occasions
that a reservation to Article IX of the Genocide Convention is not incompatible with the object and
purpose of that treaty. While these factors ar e entirely understandable, there are other elements
within ArticleIX which make it less than self-evident that a reservation thereto might not be
incompatible with the object and purpose of the Genocide Convention.
The authors of the joint separate opinion suggest that the Court should revisit this matter for
further consideration.
Declaration of Judge Kooijmans
In his declaration Judge Kooijmans sets out why he is of the view that the Court has been
unduly restrictive in concluding that one of the co nditions on its jurisdiction has not been met.
Article29, paragraph1, of the Convention on th e Elimination of All Forms of Discrimination
Against Women provides that a dispute can be br ought before the Court only if negotiations have
been unsuccessful and a su bsequent effort to settle it through ar bitration has also turned out to be
fruitless. - 3 -
The Court recognizes that, by bringing the conflict with its neighbours to the attention of the
Security Council, the DRC can be said to have tried to initiate negotiations in a multilateral context.
In its complaints the DRC did not, however, ex plicitly refer to the Convention on Discrimination
Against Women.
Judge Kooijmans observes that the DRC in its pr otests referred to a lleged violations of a
great number of treaty-based human rights norms, including norms providing for the protection of
women. In view of the facts that the complaints were made in a general context and that they were
ignored by Rwanda, the Court should have concluded that the DRC’s attempt to enter into
negotiations had been to no avail.
In holding as it has in the present case, the Court has made it more difficult for States to
satisfy the condition of prior negotiations required in many compromissory clauses.
Separate opinion of Judge Al-Khasawneh
While JudgeAl-Khasawneh concurred that the Court lacked jurisdiction, he felt compelled
to append a separate opinion in view of the continuing doubts he had with respect to the Court’s
reasoning regarding the requirement (contained in Article 29 of the Conven tion on Discrimination
Against Women) that prior negotiations should be attempted before referral to the Court.
The Court acknowledged that such negotiations took place but found them irrelevant in view
of the fact that they did not refer to the in terpretation or application of the Convention on
Discrimination Against Women.
JudgeAl-Khasawneh believed that such a requirement was not realistic as a matter of
diplomatic practice especially in multifaceted disputes and where co ntext was important, i.e., it is
not usual before the Security Council, for exampl e, to itemize complaints on a treaty-by-treaty
basis.
What was important was the substantive relevance of the treaty. There was no doubt in his
mind that the Convention on Discrimination Against Women was relevant in view of the comment
of the monitoring committee which found violence against women to constitute discrimination.
More importantly, the jurisprudence of the Court favoured a broad interpretation of compromissory
clauses, e.g., in th e Ambatielos (Greece v. United Kingdom ) case the requirement was one of a
defensible argument on relevance. In other case s the test of reasonable or tangible connection was
devised. He felt there was no need to refer expre ssly to a particular treaty in prior negotiations and
a general reference as was the case to complain ts made by DRC to the African Commission on
Human and Peoples’ Rights and to the Security Council constituted prior negotiations. He was
nevertheless able to concur with the majority view that the Court lacked jurisdiction because
another condition under Article 29, namely arbitration was not met.
Declaration of Judge Elaraby
Judge Elaraby agrees with the finding of the Court. Although sound in law, he believes the
finding that the Court lacks jurisdiction highlights certain important limitations of the
contemporary international legal system. Unlike in situations where both States have recognized
the compulsory jurisdiction of the Court, independ ent grounds of jurisdiction are necessary in the
instant case for the Court to examine the merits of the Application. However, none of the grounds
which the DRC has advanced to this end grant the Court jurisdiction.
Judge Elaraby acknowledges the gravity of the situation in this case as well as the
complexity of the circumstances in the Great Lakes region. Although he agrees that the consensual - 4 -
nature of the Court’s jurisdiction prevents it from considering the substantive issues, he emphasizes
the duty of States to settle their disputes peacefully and in accordance with international law. In
this respect, Judge Elaraby highlights the import ance of States recognition of the compulsory
jurisdiction of the Court and the efforts that have been made to this effect.
In conclusion, Judge Elaraby expresses a hope that States must prioritize international
adjudication as a vital means of peaceful settlement of disputes in accordance with the principles
and purposes of the Charter of the United Nations.
Separate opinion of Judge ad hoc Dugard
In his separate opinion Judge adhoc Dugard endorses the Court’s finding that it has no
jurisdiction to entertain the Application filed by the Democratic Republic of the Congo. He
comments on two issues raised by the present Judgment.
The Court has for the first time acknowledged the existence of peremptory norms
(jus cogens) in its Judgment. Judge Dugard welcomes this acknowledgment and states that norms
of juscogens have an important role to play in the judicial process. He argues that in most
instances such norms will be used to guide the Cour t in the exercise of its judicial choice between
competing precedents, conflicting State practices and different general principles of law. In order
to illustrate this point he examines a number of earlier decisions of the Court in which norms of
jus cogens might have been invoked. Norms of juscogens per se cannot, however, confer
jurisdiction on the Court as the principle of cons ent as the basis of the Court’s jurisdiction is
founded in the Court’s Statute (Art.36) and may itself be described as a norm of general
international law accepted and recognized by the international community of States as a whole.
JudgeDugard then examines the argument of the Applicant that it has engaged in
negotiations in international bodies in respect of the Convention on the Elimination of All Forms of
Discrimination Against Women and that these negotia tions show that the dispute is not capable of
settlement, as required by the compromissory clau se of the Convention for the establishment of
jurisdiction. JudgeDugard concludes that the Applicant has failed to show that it has clearly
identified the Convention on the Elimination of All Forms of Discrimination Against Women as
the basis of its complaint in “conference or parlia mentary diplomacy” in international bodies. It
has therefore failed to satisfy th e requirement contained in Article29 of the Convention that the
dispute cannot be settled by negotiation. JudgeDugard distinguishes the decision of the Court in
the South West Africa cases (South West Africa (Ethiopia v. South Africa; Liberia v. South
Africa), Preliminary Objections, Judgment, I.C.J. Reports 1962).
Dissenting opinion of Judge ad hoc Mavungu
The Democratic Republic of the Congo (D RC) invoked a number of bases in order to
establish the Court’s jurisdiction. While it is true th at not all of these bases are relevant in order to
found such jurisdiction, three clauses at least could have been accepted for this purpose. These are
Article75 of the Constitution of the WHO, Article14 of the Montreal Convention for the
Suppression of Unlawful Acts against the Safety of Civil Aviation, read in conjunction with the
Chicago Convention on Civil Aviation, and Artic le29 of the Convention on Discrimination
Against Women.
The Court’s failure to take account of the above matters provides grounds for a dissenting
opinion.
___________- 5 -
Summary of the Judgment of 3 February 2006