INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
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Website: www.icj-cij.org
Summary
Not an official document
Summary 2012/3
19 June 2012
Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)
(Compensation owed by the Democratic Republic of the Congo
to the Republic of Guinea)
Summary of the Judgment of 19 June 2012
I. Procedural and factual background of the case (paras. 1-17)
The Court begins by recalling the procedural background of the present case.
On 28December1998, the Republic of Guinea (her einafter “Guinea”) filed in the Registry
of the Court an Application instituting proceedi ngs against the Democratic Republic of the Congo
(hereinafter the “DRC”, named Zaire between 1971 and 1997) in respect of a dispute concerning
“serious violations of international law” allged to have been comm itted upon the person of
Mr. Ahmadou Sadio Diallo, a Guinean national.
In its Judgment of 24May2007 on prelim inary objections, the Court declared the
Application of Guinea to be admissible “in so far as it concerns protection of Mr. Diallo’s rights as
an individual” and “in so far as it concerns protection of [his] direct rights as associé in
Africom-Zaire and Africontainers-Zaire”. However, the Court declared the Application of Guinea
to be inadmissible “in so far as it concerns protection of Mr. Diallo in respect of alleged violations
of rights of Africom-Zaire and Africontainers-Zaire”.
In its Judgment of 30November2010 on the merits, the Court found that, in respect of the
circumstances in which Mr.Diallo had been e xpelled on 31January1996, the DRC had violated
Article 13 of the International C ovenant on Civil and Political Rights (hereinafter the “Covenant”)
and Article 12, paragraph 4, of the African Char ter on Human and Peoples’ Rights (hereinafter the
“African Charter”) (subpara. (2) of the operative part ). The Court also found that, in respect of the
circumstances in which Mr. Diallo had been arrested and detained in 1995-1996 with a view to his
expulsion, the DRC had violated Article 9, paragraphs 1 and 2, of the Covenant and Article 6 of the
African Charter (subpara. (3) of the operative part). In addition, the Court found that the DRC had
violated Mr.Diallo’s rights under Article36, paragraph1(b) , of the Vienna Convention on
Consular Relations (hereinafter the “Vienna Convention”).
In its Judgment on the merits, the Court further decided that “the Democratic Republic of the
Congo [was] under obligation to make appropriate repa ration, in the form of compensation, to the
Republic of Guinea for the injuriou s consequences of the violations of international obligations
referred to in subparagraphs 2 a nd 3 [of the operative part]”. The Court did not however order the - 2 -
DRC to pay compensation for the violation of Mr. Diallo’s rights under Article 36, paragraph 1 (b)
of the Vienna Convention. The Court decided that failing agreement between the Parties on the
compensation owed by Guinea to the DRC within six months from the date of the said Judgment,
the question would be settled by the Court. The time-limit of six months thus fixed by the Court
having expired on 30May2011 without an agreem ent being reached between the Parties on the
question, it was therefore for the Court to decide on the amount of compensation to be paid to
Guinea as a result of the wrongful arrests, detenti ons and expulsion of Mr. Diallo by the DRC, in
accordance with the conclusions set forth in its Judgment on the merits.
The Court notes that Guinea seeks compensati on under four heads of damage: non-material
injury (referred to by Guinea as “mental and moral damage”); and three heads of material damage:
alleged loss of personal property; alleged loss of professional remuneration (referred to by Guinea
as “loss of earnings”) during Mr.Diallo’s detentions and after his expulsion; and alleged
deprivation of “potential earnings”. As to each head of damage, the Court states that it will
consider whether an injury is established. It w ill then “ascertain whether, and to what extent, the
injury asserted by the Applicant is the conse quence of wrongful conduct by the Respondent”,
taking into account “whether there is a sufficien tly direct and certain causal nexus between the
wrongful act . . . and the injury suffered by the Applicant”. Lastly, the Court points out that if the
existence of injury and causation is established, the Court will then determine the valuation.
II. Heads of damage in respect of which compensation is requested (paras. 18-55)
(A) Compensation for the non-material injury suffered by Mr. Diallo
The Court is of the view that non-material injury can be established even without specific
evidence. In the case of Mr.Diallo, the fact that he suffered non-material injury is an inevitable
consequence of the wrongful acts of the DRC already ascertained by the Court. In its Judgment on
the merits, the Court found that Mr. Diallo had been arrested without being informed of the reasons
for his arrest and without being given the possibility to seek a remedy; that he was detained for an
unjustifiably long period pending expulsi on; that he was made the object of accusations that were
not substantiated; and that he was wrongfully expelled from the country where he had resided for
32 years and where he had engaged in significant business activities. The Court therefore considers
it reasonable to conclude that the DRC’s wr ongful conduct caused Mr.Diallo significant
psychological suffering and loss of reputation.
Furthermore, the Court has taken into account the number of days for which Mr. Diallo was
detained ⎯ he was continuously detained fo r 66 days, from 5 November 1995 until
10 January 1996, and was detained for a second time between 25 and 31 January 1996, that is, for a
total of 72 days ⎯ and the conclusion in its Judgment on the merits that it had not been
demonstrated that Mr.Diallo was mistreated in violation of Article10, paragraph1, of the
Covenant.
The Court also notes that the circumstances of the case point to the existence of certain
factors which aggravate Mr.Diallo’s non-material injury, in particular the context in which the
wrongful detentions and expulsion occurred. In ad dition to the fact that Mr. Diallo’s arrests and
detentions aimed at allowing the expulsion measure were arbitrary within the meaning of Article 9,
paragraph 1, of the Covenant and Article 6 of the African Charter, the Court emphasizes that it also
noted in its Judgment on the merits that it was difficult not to discern a link between Mr. Diallo’s
expulsion and the fact that he had attempted to r ecover debts which he belie ved were owed to his
companies by the Zairean State or companies in wh ich the State held a substantial portion of the
capital. The Court observes that quantification of compensation for non-material injury necessarily
rests on equitable considerations. - 3 -
In the light of the circumstances set out above, the Court considers that the amount of
US$85,000 would provide appropriate compensa tion for the non-material injury suffered by
Mr. Diallo.
(B) Compensation for material injury suffered by Mr. Diallo
The Court explains that it will begin by addressing Guinea’s claim relating to the loss of
Mr.Diallo’s personal property; it will then consider Guinea’s claims concerning loss of
professional remuneration during Mr.Diallo’s unla wful detentions and following his unlawful
expulsion from the DRC; and, finally, it will tu rn to Guinea’s claim in respect of “potential
earnings”.
1. Alleged loss of Mr. Diallo’s personal property (including assets in bank accounts)
The Court notes that, according to Guinea, Mr.Diallo’s abrupt expulsion prevented him
from making arrangements for the transfer or disp osal of personal property that was in his
apartment and also caused the loss of certain assets in bank accounts. The Court states that it will
address Guinea’s claim for the loss of Mr. Diallo ’s personal property, w ithout taking into account
property of the two companies, given the Court’s prior decision that Guinea’s claims relating to the
companies were inadmissible. The Court notes th at the personal property at issue in Guinea’s
claim may be divided into three categories: furn ishings of Mr.Diallo’s apartment that appear on
the inventory of personal property in the apartment, certain high-value items alleged to have been
in Mr. Diallo’s apartment, which are not specified on that inventory; and assets in bank accounts.
As to personal property that was located in Mr. Diallo’s apartment, the Court notes that the
inventory of the property in Mr.Diallo’s apartm ent, which both Parties have submitted to the
Court, was prepared approximately 12 days after Mr. Diallo’s expulsion from the DRC. The Court
considers that, although both Parties appear to accept that the items that are listed on the inventory
were in the apartment at the time the inventory was prepared, there is, however, uncertainty about
what happened to that property. Guinea has fail ed to prove the extent of the loss suffered by
Mr. Diallo and the extent to which any such lo ss was caused by the DRC’s unlawful conduct. The
Court adds that even assuming that it could be established that the personal property on the
inventory was lost and that any such loss was caused by the DRC’s unlawful conduct, Guinea
offered no evidence regarding the value of the items on the inventory. Despite the shortcomings in
the evidence related to the property listed on the inve ntory, the Court recalls that Mr. Diallo lived
and worked in the territory of the DRC for over 30 years, during which time he surely accumulated
personal property. Even assuming that the DRC is correct in its contention that Guinean officials
and Mr. Diallo’s relatives were in a position to dispose of that personal property after Mr. Diallo’s
expulsion, the Court considers that, at a minimum, Mr.Diallo would have had to transport his
personal property to Guinea or to arrange for its disposition in the DRC. Thus, the Court is
satisfied that the DRC’s unlawful conduct caused some material injury to Mr. Diallo with respect to
personal property that had been in the apartm ent in which he lived, although it would not be
reasonable to accept the very large sum claimed by Guinea for this head of damage. In such a
situation, the Court considers it appropriate to award compensation based on equitable
considerations in the amount of US$10,000.
The Court next considers Guinea’s contention th at Mr. Diallo’s apartment contained certain
high-value items not specified on the inventory described above. It notes that Guinea mentions
several items in its Memorial, but offers few details and provides no evidence to support the
assertion that Mr. Diallo owned those items at the time of his expulsion, that they were in his
apartment if he did own them, or that they were lost as a result of his treatment by the DRC. For
these reasons, the Court rejects Guinea’s claims as to the loss of high-value items not specified on
the inventory. - 4 -
As to assets alleged to have been containe d in bank accounts, the Court considers that
Guinea offers no details and no evidence to support its claim. There is no information about the
total sum held in bank accounts, the amount of any particular account or the name(s) of the bank(s)
in which the account(s) were held. Further, ther e is no evidence demonstrating that the unlawful
detentions and expulsion of Mr.Diallo caused th e loss of any assets held in bank accounts. For
example, Guinea does not explain why Mr. Diallo could not access any such accounts after leaving
the DRC. Thus, it has not been established that Mr. Diallo lost any assets held in his bank accounts
in the DRC or that the DRC’s unlawful acts caused Mr.Diallo to lose any such financial assets.
Accordingly, the Court rejects Guinea’s claim as to the loss of bank account assets.
The Court therefore awards no compensation in respect of the high-value items and bank
account assets.
2. Alleged loss of remuneration during Mr. Diallo’s unlawful detentions and following
his unlawful expulsion
At the outset, the Court notes that, in its submissions at the conclusion of its Memorial,
Guinea claims US$6,430,148 for Mr. Diallo’s loss of earnings during his detentions and following
his expulsion. However, Guinea makes referenc e elsewhere in its Memorial to a sum of
US$80,000 for Mr.Diallo’s loss of earnings during his detentions. As presented by Guinea, this
claim for US$80,000, although not reflected as a sepa rate submission, is clearly distinct from its
claim for US$6,430,148 which, in the reasoning of the Memorial, only concerns the alleged “loss
of earnings” following Mr.Diallo’s expulsion. The Court will interpret Guinea’s submissions in
light of the reasoning of its Memorial, as it is entited to do. Therefore, it will first consider the
claim of US$80,000 for loss of professional remuneration during Mr. Diallo’s detentions and then
will examine the claim of US$6,430,148 for loss of professional remuneration following his
expulsion.
As to the alleged loss of professional rem uneration during the unlaw ful detentions of
Mr.Diallo, the Court recalls that Guinea maintain s that, prior to his arrest on 5November1995,
Mr. Diallo received monthly remuneration of US$25,000 in his capacity as gérant of Africom-Zaire
and Africontainers-Zaire. Based on that figure, Guinea estimates that Mr.Diallo suffered a loss
totalling US$80,000 during the 72 days of his detention, an amount that, according to Guinea, takes
account of inflation. The Court notes that the DRC contends that Guinea has not produced any
documentary evidence to support the claim for loss of remuneration. The DRC also takes the view
that Guinea has failed to show that Mr.Diallo’s detentions caused a loss of remuneration that he
otherwise would have received. In particular, the DRC asserts that Guinea has failed to explain
why Mr. Diallo, as the sole gérant and associé of the two companies, could not have directed that
payments be made to him.
The Court considers whether Guinea has established that Mr. Diallo was receiving
remuneration prior to his detention and that su ch remuneration was in the amount of US$25,000
per month.
The Court first observes that Guinea provides no proof that Mr. Diallo was earning
US$25,000 per month as gérant of the two companies. There are no bank account or tax records;
there are no accounting records of either comp any showing that it had made such payments.
Moreover, the Court considers that there is evidence suggesting that Mr.Diallo was not
receiving US$25,000per month in remuneration from th e two companies prior to his detentions.
First, the evidence regarding Africom-Zaire and Africontainers-Zaire strongly indicates that neither
of the companies was conducting business ⎯ apart from the attempts to collect debts allegedly
owed to each company ⎯ during the years immediately prior to Mr. Diallo’s detentions. Secondly,
in contrast to Guinea’s claim in the present phase of the proceedings devoted to compensation that
Mr.Diallo was receiving monthly remuneration of US$25,000, Guinea told the Court, during the - 5 -
preliminary objections phase, that Mr. Diallo w as “already impoverished in 1995”. This statement
to the Court is consistent with the fact that, on 12 July 1995, Mr. Diallo obtained in the DRC, at his
request, a “Certificate of Indigency” declaring him “temporarily destitute” and thus permitting him
to avoid payments that would otherwise have b een required in order to register a judgment in
favour of one of the companies. The Court therefore concludes that Guinea has failed to establish
that Mr.Diallo was receiving remuneration from Africom-Zaire and Africontainers-Zaire on a
monthly basis in the period immediately prior to his detentions in 1995-1996 or that such
remuneration was at the rate of US$25,000 per month.
The Court notes that Guinea also does not expl ain how Mr.Diallo’s detentions caused an
interruption in any remuneration that Mr. Diallo might have been receiving in his capacity as gérant
of the two companies. If the companies were in fact in a position to pay Mr. Diallo as of the time
that he was detained, it is reasonable to expect that employees could have continued to make the
necessary payments to the gérant . Moreover, Mr.Diallo was detained from 5November1995 to
10 January 1996, then released and then detained again from 25 January 1996 to 31 January 1996.
Thus, there was a period of two weeks during which there was an opportunity for Mr.Diallo to
make arrangements to receive any remuneration that the companies allegedly had failed to pay him
during the initial 66-day period of detention.
Under these circumstances, the Court considers that Guinea has not proven that Mr.Diallo
suffered a loss of professional remuneration as a result of his unlawful detentions.
As to the alleged loss of professional remune ration following Mr. Diallo’s expulsion, the
Court recalls that Guinea asserts that the unlawful expulsion of Mr.Diallo by the DRC deprived
him of the ability to continue receiving remuneration as the gérant of Africom-Zaire and
Africontainers-Zaire. Based on its claim that Mr . Diallo received remuneration of US$25,000 per
month prior to his detentions in 1995-1996, Guinea asserts that, during the period that has elapsed
since Mr.Diallo’s expulsion on 31January1996, he has lost additional “professional income” in
the amount of US$4,755,500. Guinea further asserts that this amount should be adjusted upward to
account for inflation, such that its estimate of Mr. Diallo’s loss of professional remuneration since
his expulsion is US$6,430,148. The Court notes th at the DRC reiterates its position regarding the
claim for unpaid remuneration from the period of Mr. Di allo’s detentions, in particular the lack of
evidence to support the claim that Mr. Diallo was receiving remuneration of US$25,000 per month
prior to his detentions and expulsion.
The Court observes that it has already re jected the claim for loss of professional
remuneration during the period of Mr.Diallo’s dete ntions. It considers that those reasons also
apply with respect to Guinea’s claim relating to the period following Mr.Diallo’s expulsion.
Moreover, Guinea’s claim with respect to Mr.Diallo’s post-expulsion remuneration is highly
speculative and assumes that Mr.Diallo would have continued to receive US$25,000 per month
had he not been unlawfully expelled. While an award of compensation relating to loss of future
earnings inevitably involves some uncertainty, such a claim cannot be purely speculative. Thus,
the Court concludes that no compensation can be awarded for Guinea’s claim relating to unpaid
remuneration following Mr. Diallo’s expulsion.
The Court therefore awards no compensation for remuneration that Mr. Diallo allegedly lost
during his detentions and following his expulsion.
3. Alleged deprivation of potential earnings
The Court notes that Guinea makes an additi onal claim that it describes as relating to
Mr. Diallo’s “potential earnings”. Specifically, Guinea states that Mr. Diallo’s unlawful detentions
and subsequent expulsion resulted in a decline in the value of the two companies and the dispersal
of their assets. Guinea also asserts that Mr. Diallo was unable to assign his holdings (parts - 6 -
sociales) in these companies to third parties and that hi s loss of potential earnings can be valued at
50percent of the “exchange value of the holding s”, a sum that, accordin g to Guinea, totals
US$4,360,000. The Court notes that the DRC cons iders that Guinea’s calculation of the alleged
loss to Mr. Diallo is based on assets belonging to the two companies, and not assets that belong to
Mr.Diallo in his individual capacity. Furtherm ore, the DRC contends that Guinea provides no
proof that the companies’ assets have, in fact, been lost or that specific assets of the two companies
to which Guinea refers could not be sold on the open market.
The Court considers that Guinea’s claim con cerning “potential earnings” amounts to a claim
for a loss in the value of the companies allege dly resulting from Mr.Diallo’s detentions and
expulsion. Such a claim is beyond the scope of th e proceedings, given this Court’s prior decision
that Guinea’s claims relating to the injuries alleged to have b een caused to the companies are
inadmissible. For these reasons, the Court awar ds no compensation to Guinea in respect of its
claim relating to the “potential earnings” of Mr. Diallo.
*
Having analysed the components of Guinea’s clai m in respect of materi al injury caused to
Mr. Diallo as a result of the DRC’s unlawful conduc t, the Court awards compensation to Guinea in
the amount of US$10,000.
III. Total sum awarded and post-judgment interest (paras. 56-57)
The Court concludes that the total sum awarded to Guinea is US$95,000 to be paid by
31 August 2012. The Court expects timely payment and has no reason to assume that the DRC will
not act accordingly. Nevertheless, considering that the award of post-judgment interest is
consistent with the practice of other internati onal courts and tribunals, the Court decides that,
should payment be delayed, post-judgment inter est on the principal sum due will accrue as from
1 September 2012 at an annual rate of 6 per cent. This rate has been fixed taking into account the
prevailing interest rates on the international market and the importance of prompt compliance. The
Court recalls that the sum awarded to Guinea in the exercise of diplomatic protection of Mr. Diallo
is intended to provide reparation for the latter’s injury.
IV. Procedural costs (paras. 58-60)
The Court notes that Guinea requests the Court to award costs in its favour, in the amount of
US$500,000, because, “as a result of having been forced to institute the present proceedings, the
Guinean State has incurred unrecoverable costs which it should not, in equity, be required to bear”.
The DRC asks the Court “to dismiss the request for the reimbursement of costs submitted by
Guinea and to leave each State to bear its own costs of the proceedings, including the costs of its
counsel, advocates and others”.
The Court recalls that Article 64 of the Statute provides that, “[u]nless otherwise decided by
the Court, each party shall bear its own costs”. While the general rule has so far always been
followed by the Court, Article64 implies that there may be circumstances which would make it
appropriate for the Court to allocate costs in favour of one of the parties. However, the Court does
not consider that any such circumstances exist in the present case. Accordingly, each party shall
bear its own costs. - 7 -
V. Operative part (para. 61)
For these reasons,
THE C OURT ,
(1) By fifteen votes to one,
Fixes the amount of compensation due from the De mocratic Republic of the Congo to the
Republic of Guinea for the non-material injury suffered by Mr. Diallo at US$85,000;
IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Owada, Abraham,
Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue,
Gaja, Sebutinde; Judge ad hoc Mahiou;
AGAINST : Judge ad hoc Mampuya;
(2) By fifteen votes to one,
Fixes the amount of compensation due from the De mocratic Republic of the Congo to the
Republic of Guinea for the material injury suffered by Mr.Diallo in relation to his personal
property at US$10,000;
IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Owada, Abraham,
Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue,
Gaja, Sebutinde; Judge ad hoc Mahiou;
AGAINST : Judge ad hoc Mampuya;
(3) By fourteen votes to two,
Finds that no compensation is due from the Democratic Republic of the Congo to the
Republic of Guinea with regard to the claim c oncerning material injury allegedly suffered by
Mr.Diallo as a result of a loss of professionaremuneration during his unl awful detentions and
following his unlawful expulsion;
IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Owada, Abraham,
Keith, Bennouna, Skotnikov, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja,
Sebutinde; Judge ad hoc Mampuya;
AGAINST : Judge Yusuf; Judge ad hoc Mahiou;
(4) Unanimously,
Finds that no compensation is due from the Democratic Republic of the Congo to the
Republic of Guinea with regard to the claim c oncerning material injury allegedly suffered by
Mr. Diallo as a result of a deprivation of potential earnings;
U(na)nimously,
Decides that the total amount of compensation due under points 1 and 2 above shall be paid
by 31 August 2012 and that, in case it has not been pa id by this date, interest on the principal sum
due from the Democratic Republic of the Congo to the Republic of Guinea will accrue as from
1 September 2012 at an annual rate of 6 per cent; - 8 -
(6) By fifteen votes to one,
Rejects the claim of the Republic of Guinea concerning the costs incurred in the proceedings.
IN FAVOUR : President Tomka; Vice-President Sepúlveda-Amor; Judges Owada, Abraham,
Keith, Bennouna, Skotnikov, Cançado Trindade, Yusuf, Greenwood, Xue, Donoghue,
Gaja, Sebutinde; Judge ad hoc Mampuya;
AGAINST : Judge ad hoc Mahiou.
Judge Cançado Trindade appends a separat e opinion to the Judgment of the Court;
JudgeYs usuf and Greenwood append declarations to the Judgment of the Court;
Judges ad hoc Mahiou and Mampuya append separate opinions to the Judgment of the Court.
___________ Annex to Summary 2012/3
Separate opinion by Judge Cançado Trindade
1. In his Separate Opinion, composed of 10 parts, Judge Cançado Trindade presents the
foundations of his personal position on the matters dealt with in the present Judgment of the Court.
He supports the Court’s decision to order reparations for the damages suffered by Mr. A. S. Diallo,
as an individual, under two human rights treaties (the U.N. Covenant on Civil and Political Rights,
Article13, and the African Charter on Human and Peoples’ Rights, Article12(4)), in addition to
the Vienna Convention on Consular Relations (his right to information on consular assistance,
under Article 36 (1) (b)). He further supports the decision of the ICJ to take into account the
experience of other contemporary international tribunals in the matter of reparations for damages.
2. He singles out (part I) the particular importance of the case-law of the international
tribunals of human rights (in particular that of the Inter-American and the European Courts of
Human Rights ⎯ IACtHR and ECtHR), to the determina tion of reparations to be awarded to
individuals for damages inflicted upon them. Although he agrees with the Court’s majority as to
the determination of reparations in the present Judgm ent, there are some points, not fully reflected
in the reasoning of the Court, that he feels obliged to dwell upon in his Separate Opinion, so as to
clarify the matter dealt with by the Court, and the foundations of his own personal position thereon.
3. Judge Cançado Trindade begins his reflections by identifying the subject of the rights
breached and the subject of the right to reparations (part II), in the framework of the position of
individuals as subjects of contemporary international law, and, accordingly, as titulaires of the right
to reparation for the damages they have suffered. In effect, as made clear by the legal proceedings
and the Judgment (of 30.11.2010) on the merits of the present case, the subject of the rights
violated in the cas d’espèce was a human being, Mr. A. S. Diallo, not a State. Likewise, the subject
of the corresponding right to reparation is a human being, Mr. A. S. Diallo, not a State. He is the
titulaire of such right to reparation, and the beneficiary of the reparations ordered by the Court in
the present Judgment.
4. This has also been reckoned in the legal proceedings and the present Judgment on
reparations, wherein the relevant case-law of the IACtHR and the ECtHR has been taken into
account. JudgeCançadoTrindade adds that “[t]he fact that the mechanism for dispute-settlement
by the ICJ is, as disclosed by its interna corporis, an inter-State one, does not mean that the Court’s
findings, and its corresponding reasoning, ought to be invariably limited to a strict inter-State
approach” (para.9). He then refers to a seri es of cases, settled by the ICJ throughout the last
decades (in addition to the exercise of its adviso ry function), that have directly concerned the
condition of individuals , in the light of which ⎯ he proceeds ⎯ “[t]he insufficiency, if not
artificiality, of the exclusively inter-State outlook of the procedures befo re the ICJ has become
manifest” (para. 11).
5. Judge Cançado Trindade adds that “[d]espite the limitations of the inter-State conception
of its mechanism of operation, the Court can at least disclose its preparedness to reason in the light
of the progressive development of international la w, thus contributing to it, beyond the outdated
inter-State outlook” (para.11). To his satisfac tion, the Court does so in the Judgments on the
merits (2011) and now on reparations in the present case A.S.Diallo . And he adds that, “[a]fter
all, breaches of international law are perpetrated not only to the detriment of States, but also to the
detriment of human beings, subjects of rights ⎯ and bearers of obligations ⎯ emanating directly
from international law itself. States have lost the monopoly of international legal personality a long
time ago” (para. 12). And Judge Cançado Trindade concludes, on this particular point, that - 2 -
“Individuals, ⎯ like States and international organizations, ⎯ are likewise
subjects of international law. A breach of their rights entails the obligation to provide
reparations to them. This is precisely th e case of Mr.A.S.Diallo; the present case
bears eloquent witness of that, and of the limits imposed by contemporary
international law upon State voluntarism. States cannot dispose of human beings the
way they want, irrespective of their rights acknowledged in the corpus juris of the
International Law of Human Rights; if they breach their rights enshrined therein, they
are to bear the consequences thereof, in particular the ineluctable obligation to provide
reparation to the individual victims” (para. 13).
6. In partIII of his Separate Opinion, J udgeCançado Trindade embarks on an examination
of the historical roots of the duty of reparation (in the light of the basic principle neminem laedere ),
going back to the origins of the law of nations (the writings of Francisco de Vitoria, Hugo Grotius,
SamuelPufendorf and ChristianWolff, in addition to those of AlbericoGentili, FranciscoSuárez
and CorneliusvanBynkershoek). He ponders that the t eachings (during the XVIth to the
XVIIIthcenturies) of the “founding fathers” of th e law of nations on the matter have never faded
away. Successive grave violations of the rights of the human person (some on a massive scale)
awakened human conscience to the need to restore to the human being the central position from where
he had been unduly displaced by the exclusive inter-State thinking which prevailed in the
XIXth century.
7. Judge Cançado Trindade adds that “[t]he reconstruction, on human foundations, as from the
mid-XXthcentury onwards, took, as conceptual basis, the canons of the human being as subject of
rights (titulaire de droits) , of the collective guarantee of the re alization of these latter, and of the
objective character of the obligationsof protection, and of the realization of superior common values.
The individual came again to be perceived as subject of the right to reparation for damages suffered”
(para.21). He then turns (partIV) to the dist inct theoretical frameworks of legal writing on the
rationaleof the duty of reparation for international wrongs, as from the late XIXth century onwards
(such as, e.g., the writings of Dionisio Anzilotti, HanKsels en, PaFlauchille,
Hildebrando Accioly, F. V. García-Amador).
8. He further recalls the contribution of the Permanent Court of International Justice (PCIJ),
mainly in its Judgment of 1927 in the Chorzów Factory case, to the acknowledgment of the
obligation of reparation as corresponding to a principle of international law , and as conforming an
“indispensable complement” to the wrongful act, so as to efface all the consequences of this latter
(i.e., the provision of full reparation). In Judge Cançado Trindade’s perception, “[t]he duty of
reparation within the realm of international responsibility is attached to subjectivity in international
law, ensuing from the condition of being subject of rights and bearer of duties in the law of nations
(droit des gens)” (para. 32). He adds that the advent of the International Law of Human Rights and
of contemporary International Crim inal Law has had the impact of clarifying this whole matter,
“leaving no doubts that individuals ⎯ no longer only States ⎯ are also subjects of rights and
bearers of duties emanating directly from international law (the droit des gens)” (para. 32).
9. In part V of his Separate Opinion, Judge Cançado Trindade focuses attention on what he
terms as the indissoluble whole conformed by the breach of international law and the compliance
with the duty of reparation for damages. In th is respect, he evokes his own Dissenting Opinion in
the Court’s Judgment of 03.02.2012, in the recent case concerning the Juri sdictional Immunities of
the State (Germany versus Italy, Greece intervening), to su stain once again his view that
compliance with the State’s obligation of repara tion ineluctably ensues from the occurrence of the
breaches of international law, as their “indispensable complement” ; that obligation is governed by - 3 -
international law in all its aspects (e.g., scope, fo rms, beneficiaries), and cannot be modified or
suspended by the invocation of alleged difficulties of domestic law.
10. In the understanding of J udge Cançado Trindade, the breach of international law and the
ensuing compliance with the duty of reparation for injuries are two sides of the same coin: they
form an indissoluble whole , which cannot at all be disrupted by an undue invocation of State
sovereignty or State immunity. This is the view he has firmly sustained in his Dissenting Opinion
in the recent case on the Jurisdictional Immunities of the State (Judgment of 03.02.2012), and
which he again sustains in the present Judgment of the A. S. Diallo case. In his view, the regime of
reparations for breaches of human rights does not exha ust itself at inter-State level; after all, the
individual victims of those breaches “are the titulaires of the right to reparation”.
11. In upholding this “humanized outlook”, Judge Cançado Trindade ponders that the full
reparatio (from the Latin reparare , “to dispose again”) does not actually “erase” the human rights
violations perpetrated, but rather ceases all its eff ects, thus at least avoiding the aggravation of the
harm already done, besides restoring the integrity of the legal order, as well as that of the victims.
He further warns that the duty of reparation is a fundamental (not a secondary) obligation, and this
becomes clearer if one looks into it from the perspe ctive of the centrality of the victims, which is
his own. “The indissoluble whole that violatio n and reparation conform admits no disruption by
means of the undue invocation, by the responsible State, of its sovereignty or its immunities, so as
to evade the indispensable consequence of the international breaches incurred into: the reparations
due to the victims” (para. 40).
12. In part VI of his Separate Opinion, Judge Cançado Trindade concentrates his thoughts on
the centrality of the victims in the present domain of protection and its implications for reparations.
The rights at issue, being inherent to the human person, and anterior and superior to the State, are
not reduced to those which the State is prepared to “grant” or “concede” to persons under its
jurisdiction, at its sole discretion. The centrality of their position in the present domain of
protection is well-established, responding to a true need of the international community itself, ⎯ as
perceived and heralded, some decades ago, in the first half of the XXthcentury, in a pioneering
way, by a generation of jurists (André N. Mandelstam, Georges Scelle, Charles de Visscher).
13. In our times, ⎯ he proceeds, ⎯ the growing acknowledgment, by the international legal
order, of the importance of reparations to vict ims of human rights violations, is a sign of its
maturity, even though there remains a long way to go . In this way, the historical process of the
humanization of international law, intuitively detected and propounded, a couple of decades ago,
by another generation of jurists with a humanist formation (M. Bourquin, A. Favre, S. Sucharitkul,
S.Glaser), will keep on advancing, with particular attention to those ⎯ individually or in
groups ⎯ who find themselves in a situation of special vulnerability.
14. The implications of the international subjectivity of individuals for reparations due to
them were to challenge the postulates of trad itional doctrine of State responsibility, and in
particular its unsatisfactory and artificial inter-State outlook. As the present case A.S.Diallo
clearly shows, the damage was done to an individual, and not to a State, and it is that damage that
is taken as “the measure” for the determination of the reparation due to the individual. In effect, ⎯
he adds, ⎯ the U.N. International Law Commission (ILC) itself, in the 2001 Report on its work on
the international responsibility of a State, admitte d the possibility of this happening, and of the
beneficiary of a reparation being an individual and not the State. In the perception of
JudgeCançado Trindade, the cas d’espèce , in clarifying this point in respect of reparations, bears - 4 -
witness of the reassuring historical process, presently in course, of the humanization of
international law, ⎯ as he has been pointing out and supporting since the nineties.
15. In circumstances such as tho se of the present case A.S.Diallo , a strict inter-State
approach to the State’s compliance with the duty to provide reparation appears anachronistic and
unsustainable. It has in fact been in the do main of international human rights protection, ⎯
Judge Cançado Trindade adds,⎯ that reparations have been reckoned as comprising, in the light of
the general principle of neminem laedere , the restitutio in integrum (reestablishment of the prior
situation of the victim, whenever possible), in addition to the indemnizations, the rehabilitation, the
satisfaction, and the guarantee of non-repetition of tehacts or omissions in violation of human rights.
16. Contemporary doctrine,⎯ he proceeds, ⎯ has identified the aforementioned distinct forms
of reparation from the perspective of the victim, of their claims, needs and aspirations. It goes beyond
solutions of private law, and the essentially patrimonial content (ensuing from civil law analogies) of
traditional doctrine. JudgeCançadoTrindade further sustains that reparations are to be constantly
reassessed as from the perspective of the integral ity of the personality of the victims themselves,
bearing in mind the fulfillment of their aspirations suman beings and the restoration of their dignity.
17. The 2005 U.N. Basic Principles and Guidelines on the Right to a Remedy and
Reparations are also victim-oriented , having been preceded by a unique and innovative
jurisprudential construction of the IACtHR on this subject-matter (in particular on the distinct
forms of reparation), which took place largely in the years 1998-2004, and which has been
attracting growing attention of expert writing in r ecent years. That jurisprudential construction of
the IACtHR has, in its conceptualization, for th e purposes of reparation, gone further than the
2005U.N. Basic Principles and Guidelines, in fostering the expansion of the notion of victim, by
encompassing as such the next of kin, also regard ed as “direct victims” in their own right (given
their intense suffering), without conditionalities (suc h as that of accordance with domestic law), in
individualized as well as collective cases.
18. Judge Cançado Trindade next reviews in detail (part VII) the pioneering contribution of
the case-law on reparations of both the IACtHR a nd ECtHR. He finds it reassuring that the ICJ
takes their contribution into account in the present case A.S.Diallo (reparations), “given the
common mission of contemporary international tr ibunals of securing the realization of justice ”
(para.62). Furthermore, in the perspective of legal history, he stresses the importance of
fundamental principle neminem laedere for reparation of moral damages inflicted upon individuals
(part VIII). He points out that “consideration of moral damages inevitably turns attention to human
suffering, proper to human beings rather than to States. In fact, States do not suffer; not seldom,
they tend to inflict suffering upon human beings under their respective jurisdictions or elsewhere.
The importance of moral damages became manifest in face of the need of protection of
individuals” (para. 77).
19. He further observes the analogies with so lutions proper to common law or to civil law
(droit civil) have never appeared convincing or satisfactory to him, by focusing ⎯ for the purpose
of reparation ⎯ on the relationship of the human person with material goods; he insists on the
need to go beyond the short-minded patrimonial or financial approach, and to look also into the
human person’s aspirations, freedom and integrity. And he stresses the importance to reparations
for moral damages, and the particul ar relevance of the rehabilitation of victims (part IX), ⎯ to be
considered as from the integrality of the personality of the victims, ⎯ in the framework of
restorative justice. The realization of justice (an imperative of jus cogens ) is in itself a form of
reparation (satisfaction) to the vi ctims. He adds that reparatio does not put an end to the suffering - 5 -
ensuing from the human rights violations, but, in ceasing the effects of those breaches, it at least
alleviates the suffering of the individual victims (as titulairesof the right to reparation), by removing
the indifference and oblivion of the social milie, and the impunity of the perpetrators.
20. In his concluding reflections (partX) , JudgeCançadoTrindade recalls the State
obligations vis-à-vis the human person ⎯ individually or in groups (as in the “solidarisme de la
liberté” of LéonDuguit, opposing abuses perpetra ted under the guise of absolute State
sovereignty), as well as the jusphilosophi cal contribution of juridical “personalism” , aiming at
doing justice to the individuality of the human person , to her inner life and the need for
transcendence on the basis of her own experience of life (as in the writings of Emmanuel Mounier
and Gabriel Marcel).
21. He adds that such trends of humanist thinking, almost forgotten in our hectic days, can,
in his view, still shed much light towards furthe r development of reparations for moral damages
done to the human person. Another lesson he extracts from the present case of A.S.Diallo
(Guinea versus D.R. Congo), unprecedented in this Court’s history, is that the determination of
reparations for human rights breaches is not a matter of legal technique only, as the incidence of
considerations of equity fully demonstrates.
22. In sum, ⎯ Judge Cançado Trindade concludes, ⎯ the reasserted presence (and a central
one) of the individual in the framework of the la w of nations has much contributed to the more
recent progressive development of international law in respect of reparations for damages ensuing
from violations of human rights. In the cas d’espèce , where damage was done to an individual, the
Court, in the dispositif of the present Judgment, fixes the amount of compensation for non-material
as well as material damage “suffered by Mr. Diallo” (resolutory points (1) and (2)). The ultimate
subject (titulaire) of the right to reparation and its benefi ciary is Mr.A.S.Diallo, the individual
who suffered the damages. The amounts of compen sation have been determined by the Court to
his benefit. This is, in the perception of Judge Cançado Trindade, the proper meaning of resolutory
points (1) and (2) of the dispositif of the present Judgment, in combination with paragraph 57 of the
reasoning of the Court.
Declaration of Judge Yusuf
1. In appending a declaration to the Judgment , Judge Yusuf expresses his disagreement with
point three of the operative paragraph in which the Court rejects Guinea’s claim for material injury
“allegedly suffered by Mr.Diallo as a result of a loss of professional remuneration during his
unlawful detentions and following his unlawful ex pulsion”. He first observes that the Court
reformulates to a “loss of professional remune ration” the material damage characterized in
Guinea’s Memorial as a “loss of earnings.” In his assessment there is no legal or logical reason for
this restrictive reformulation of Guinea’s claim for compensation for material injury. He states that
as a businessman, Mr. Diallo was not only remune rated for his managerial responsibilities but had
overall responsibility, being the sole associé, for the income-generating activities of the companies.
The detention of a businessman for such a long peri od of time did not only disturb his commercial
and entrepreneurial activities, but had a direct effect on Mr.Diallo’s personal earnings as a
businessman and as the sole associé of the two companies. Thus, in JudgeYusuf’s view, the
reformulation by the Court does not constitute a pr oper qualification of the actual material injury
suffered in this case, nor does it correspond to the context in which the damage was caused or the
particular circumstances of the victim of the human rights violations recognized by the Court. - 6 -
2. Secondly, JudgeYusuf addresses the conclu sions reached by the Court on the lack of
evidence on the amount of Mr.Diallo’s pre-detention monthly earnings. While he acknowledges
the Republic of Guinea’s failure to produce satisfactory evidence of the sums claimed, he
nevertheless argues that this lack of evidence ca nnot negate the existence of a causal link between
the unlawful detentions and the material injury suffered. The existence of this injury and its causal
link with the wrongful act can be ascertained through the determination of the extent to which it
prevented the individual from engaging in his or her habitual income-generating activities. By
focusing solely on the lack of reliable evidence relating to Mr. Diallo’s monthly earnings, the Court
lost sight of the actual injury caused by the unlawful detention of Mr. Diallo ⎯ i.e., the disruption
of his income-generating activities and the fact th at the detention prevented him from engaging in
such activities.
3. Furthermore, he notes that the absence of reliable evidence or information on the earnings
of the victims of unlawful acts by States has no t deterred international courts, tribunals and
commissions from awarding compensation on the basis of equitable considerations. Those courts
and tribunals have adopted a flexible approach , based on equity, in assessing lost earnings where
evidence of earnings was either insufficient or was not established to the satisfaction of the court.
He observes that the Court failed to take this practice into consideration despite claiming to do so
in paragraph 13 of the Judgment.
4. Finally, he finds it regrettable that the C ourt appears to overlook in this Judgment as well
as in the previous one on the merits the fact that Mr.Diallo was the central figure and the sole
associé gérant of two companies which were in realit y unipersonal companies, though they were
incorporated as companies with limited liability. Alluding to his joint dissenting opinion with
Judge Al-Khasawneh, Judge Yusuf notes that the unlawful detentions of Mr. Diallo undermined his
ability to manage the activities of his companies, to recover the debts owed to the companies by the
Government of Zaire (DRC), and thus to genera te the revenue from which his activities would be
compensated. This prevention had a direct impact on his ability to continue to receive an income
from his businesses which suffered from further perturba tion and interruption of their activities. It
is the causal link between the unlawful detentions and the material damage suffered by Mr. Diallo
during this period in the form of loss of earnings that should have been used by the Court to
determine compensation on grounds of equity.
Declaration of Judge Greenwood
Judge Greenwood considers that the compara tively low amount awarded to Guinea, relative
to the sums claimed, is justified in light of th e absence of any evidence to sustain the claims for
material damage and the fact that the Court, in its Judgments in 2007 and 2010, had excluded
damage to the companies (Africom Zaire and Africontainers) from the scope of the case. With
regard to the compensation for moral damage, equitable principles had to be applied in a consistent
and coherent manner, which required that the amount awarded should be just, not only by reference
to the facts of each particular case, but by comparison with other cases. For this reason,
Judge Greenwood would have awarded a smaller sum for moral damage in the present case.
Separate opinion of Judge ad hoc Mahiou
The Court has seldom had occasion to rule on the issue of compensation, and in particular to
determine its amount. In the celebrated case concerning the Factory at Chorzów it identified the
principles which should govern reparation of an injury resulting from an illegal act of a State, and it
ruled on the amount of reparation in the Corfu Channel case. The rules governing compensation - 7 -
are now quite firmly established in international law, as a result of the decisions of various
international courts and tribunals and of the work of the International Law Commission.
Applying those rules to the present case, I have agreed with the Court’s reasoning and
solution regarding Guinea’s four heads of claim co ncerning, respectively, non-material or moral
injury, loss of personal property, loss of assets of the companies and the fixing of a time-limit for
the payment of compensation, together with a rate of interest to be applied with effect from a
specific date. On the other hand, I have been una ble to subscribe to the Court’s overall reasoning,
nor a fortiori to its solution of outright dismissal, regarding Guinea’s claims concerning the
professional remuneration due to Mr. Diallo, and, to a lesser extent, the procedural costs.
Separate opinion of Judge ad hoc Mampuya
houcdge Mampuya largely supported the principal conclusions adopted by the Court in
its Judgment, but was unable to agree with the majority on two points.
1. Excessive amount of the compensation for non-material or moral injury
The first disagreement concerns a simple ma tter of fact, relating not to the principle of
compensation, which he fully accepts, but to the amount of the compensation which should be
awarded to Guinea for the non-material or moral injury sustained by Mr. Diallo. In his reasoning,
Judge ad hocMampuya develops a line of argument which, while addressing this issue of fact,
relies on legal principles deriving both from jurisprudence and from doctrine. Thus, stating that the
sum of US$85,000 awarded by the Court is too high, he refers in support of his argument to the
practice of other courts and tribunals. This reference can be explained by the fact that, with the
sole exception of the case concerning the Corfu Channel ((United Kingdom v. Albania),
Assessment of Amount of Compensation, Judgment, I.C.J. Reports 1949 , pp.244 et seq. ), the
Court has very little experience in determining compensation; in contrast, certain other
international courts and tribunals , in particular the regional human rights courts (the European
Court and the Inter-American Court), as well as joint claims tribunals (such as the Iran-United
States Claims Tribunal and the United Stat es/Mexico General Cl aims Commission) and
international arbitral bodies, have extensive and ri ch experience in this area, experience which the
Court has itself readily agreed to draw upon. Among the principles which emerge from this
jurisprudence is the undeniable principle that, wh ile the primary aim of compensation is to remedy
as fully as possible all forms of loss suffered as a result of an internationally wrongful act,
compensation is in no way intended to punish the responsible State and should not have an
expressive or exemplary character. This approach was adopted by the ILC in its very first reports
on State responsibility, citing the doctrinal principle laid down, inter alia , by Jiménez de Aréchaga:
“punitive or exemplary damages... are incompatib le with the basic idea underlying the duty of
reparation” (E. Jiménez de Aréchaga, “International Responsibility”, in Manual of Public
International Law, London, Macmillan, 1968, cited in UN doc. A/CN.4/425 & Corr.1 and Add.1 &
Corr.1, Second Report on State Responsibility , by Mr. Gaetano Arangio-Ruiz, Special Rapporteur,
1989, para.24). It is incorporated in the ILC’ s Draft Articles on State Responsibility, first in the
commentary on Article 36, relating to compensation, and then in Article 37, paragraph 3, in respect
of satisfaction. This principle, which may be described as the principle of proportionality between
the reparation and the injury, is well established: the extent of the injury should be the measure of
the level or amount of compensation, thus en suring that the latter simply represents fair
compensation for the injury suffere d; it even appears in the case law of the Inter-American Court
of Human Rights, which is, however, extremely favourable to the compensation claims of victims
of human rights violations. Notwithstanding its necessarily dissuasive role, compensation must
correspond to the principle of full reparation and should not, therefore, represent anything more
than an amount of compensation reflecting not only as fully as possible, but at the same time as
precisely as possible, the scale of the injury sustained. - 8 -
Furthermore, Judge ad hoc Mampuya recognizes that the amount of compensation awarded
may also depend on whether or not there were pa rticular circumstances accompanying the State’s
internationally wrongful act: the conditions of detention or expulsion, for example, solitary
confinement, torture, the duration of the wrongful or arbitrary detention, ill-treatment, etc., might
explain a higher or lower award. In the pr esent case, however, the Court recognized that
Mr. Diallo did not suffer inhuman or degrading tr eatment during his detentions, while recalling the
specific circumstances— which it does not express ly describe as aggravating— of the latter’s
detentions and expulsion, as set out in its Judgment on the merits (Judgment of 30 November 2010,
paras. 74-84, 89).
This is why, in general, the compensation awarded for non-material injury is relatively
modest, in keeping with the nature of the injury suffered, especially if that injury has had no proven
significant somatic effects (frequently such awards are between €8,000 and €50,000; on the other
hand, lower sums have sometimes been awarded in respect of more serious situations).
Accordingly, Judge ad hoc Mampuya believes that “with regard to the circumstances of this case”,
the sum of US$85,000 is grossly excessive, and does not appear to him to be “appropriate”.
2. The compensation for the material injury resulting from the loss of
personal property has no legal basis
The second point with which the judge disagrees relates to a question of law concerning the
absence of proof and legal basis in respect of th e compensation awarded for the material injury
caused by the loss of Mr.Diallo’s personal property. He disagrees because there is an important
legal question of principle at issue: that of evidence in relation to reparation, even though the
US$10,000 compensation awarded is modest. Here, too, with regard to the fundamental question
of evidence, the Court’s source of reference, as in the previous point, is its Judgment in the Corfu
Channel case (the only judgment it has delivered on the question of determining compensation),
and the jurisprudence since followed by the other international courts.
In his opinion, Judgeadhoc Mampuya first sets out the curre nt rules adhered to in the
jurisprudence and doctrine to date, and which the Court disregarded when it determined the
reparation due on account of the material injury allegedly suffered by Mr.Diallo. Having set out
those rules, the judge then considers the present cas e, concluding in particular that the Court failed
to adhere scrupulously to the traditional requireme nts governing evidence. The point of law at
issue here is that of the burden of proof: proof of the existence of the injury, which is the effective
basis and measure of compensation, and proof of the causal link between the injury and the
wrongful conduct of the responsible State.
In respect of the existence of the injury, it is indeed well established that “[a]s a general rule,
it is for the party which alleges a fact in support of its claims to prove the existence of that fact”, as
the Court recalled in its Judgment on the merits in the present case (Judgment on the merits of
30 November 2010, para. 54). This is why judg es and arbitrators have always demanded a higher
standard of proof to substantiate allegations of material injury, requiring the applicant to support its
allegations with “sufficient proof” or “pro of to the satisfaction of the Court”.
Judge ad hocMampuya bases this view on jurisprudence which has been well established by the
European Court of Human Rights, the Inter-Ame rican Court of Human Rights, the Iran-United
States Claims Tribunal and a number of arbitral awar ds. With respect to material injury, although
the courts have occasionally based reparation on considerations of equity, they have not done so
because there were doubts as to the existence of the injury itself, but simply for the purpose of
estimating the value required as basis for the calculation of compensation.
Compensation also depends on evidence of the causal link between the injury and the
wrongful conduct of the responsible State: the alle ged injury must have a direct causal link to the
alleged misconduct; this has always been required by the courts. - 9 -
In the present case, a problem is posed by certain property which Mr. Diallo claims has been
lost, but whose very existence is not substantiated by the inventory drawn up in his apartment by
the Guinean Embassy. The Court indeed appear s to take the view that there is no clearly
established causal link that would support the conclusion that the alleged loss of that property “was
caused by the DRC’s unlawful conduct” (para. 32), si nce “Guinea has failed to prove the extent of
the loss of Mr. Diallo’s personal property listed on the inventory and the extent to which any such
loss was caused by the DRC’s unlaw ful conduct” (para. 31); therefore, it should have rejected this
head of claim.
Paradoxically, however, having concluded that there is no “definite” proof, the Court
nevertheless decides to award an amount of compen sation which is no longer justified by the loss
of the property in question, or in terms of the responsibility of the Congolese Government. The
compensation awarded thus lacks any legal basis.
Judge ad hoc Mampuya thus concludes his opinion by stating that his disagreement with the
majority is fully justified, because the latter failed to assess the situation correctly in holding that it
was proper to award compensation for the loss of physical property, whose existence and value had
not been demonstrated, or indeed its loss, or the DRC’s responsibility for that loss.
___________
Summary of the Judgment of 19 June 2012