SEPARATE OPINION OF JUDGE CANÇADO TRINDADE
1. In the course of the handling of proceedings on reparations in the present case of Armed
Activities on the Territory of the Congo (D.R. Congo versus Uganda), I have been having
concerns, as already expressed on the occasion of two previous Orders (of 01.07.2015
and 11.04.2016), which I deem it fit again to lay on the records in today’s Order
(of 06.12.2016), in the present Separate Opinion in the cas d’espèce.
2. This time, I shall summarize my concerns in four interrelated points, namely: (a) the
undue prolongation of time in the adjudication of cases of grave violations of international law;
(b) breach and reparation conforming an indissoluble whole; (c) the fundamental duty of prompt
reparation; and (d) reparations in distinct forms. May I turn to each of them in sequence; the path
will then be paved for the presentation of my concluding observations.
I. NDUE PROLONGATION OF T IME IN THEA DJUDICATION OF C ASES OFG RAVE VIOLATIONS
OF INTERNATIONAL LAW
3. It is most regrettable to find that, the graver the breaches of international law appear to be,
the more time-consuming and difficult it becomes to impart justice. Last year, in its Judgment
of 03.02.2015 in the case concerning the Application of the Convention against Genocide
(Croatia versus Serbia), the ICJ rejected the claim (and counter-claim) after a virtually
unprecedented prolongation of 16 years of the process, despite the vita brevis of victimized human
beings. In my extensive Dissenting Opinion appended thereto, I devoted a whole section of it to
the “regrettable delays in the adjudication” of the case (paras. 6-18). And this is not the only
example to this effect.
4. It was preceded by the Court’s Judgment (of 26.02.2007) of the Bosnian Genocide case
(Bosnia and Herzegovina versus Serbia and Montenegro), after 14 years of process. In another
case, the one concerning the Obligation to Prosecute or Extradite (Belgium versus Senegal), the
numerous victims of the occurrences at issue had to wait a long time until finding justice in the ICJ
Judgment on the merits (of 20.07.2012). Yet, the surviving victims of the occurrences at issue in
the case of Jurisdictional Immunities of the State (Germany versus Italy, with Greece intervening),
lost all hope in human justice after the delivery of the ICJ Judgment of 03.02.2012, upholding the
prevalence of State immunities over the right of access to justice lato sensu, in particular in face of
international crimes.
5. In the handling by the ICJ of the present case concerning Armed Activities on the Territory
of the Congo (reparations), there are already 11 years since the ICJ delivered its Judgment
(of 19.12.2005) on the merits, wherein grave breaches were established by the Court; yet, the
numerous victims still wait for reparations. And this is the third time, in the ongoing proceedings
on reparations, that I deem it fit to leave on the records my concerns as to the continuing and undue
prolongation of time, to the detriment of the victims themselves . Tempus fugit.
1Cf., earlier on, ICJ, case of Armed Activities on the Territory of the Congo (D.R. Congo versus Uganda, Order
of 01.07.2015), Declaration of Judge Cançado Trindade, paras. 1-7; ICJ, case of Armed Activities on the Territory of the
Congo (D.R. Congo versus Uganda, Order of 11.04.2016), Declaration of Judge Cançado Trindade, paras. 1-20. - 2 -
6. In its aforementioned Judgment of 2005, the ICJ was particularly attentive to those grave
breaches (massacres of civilians, incitement of ethnic conflicts among groups, forced displacement
of persons, among others), having drawn attention to the need of reparation, though unfortunately
without setting up a reasonable time-limit for that. In the current written phase of proceedings on
reparations in the cas d’espèce, special attention has again been devoted (by the D.R.Congo) to
those grave breaches (e.g., in the region of Ituri and the city of Kisangani), including an express
cross-reference to a resolution of the Security Council (on the occurrences in Kisangani) in that
respect, and references to recent proceedings on reparations before the International Criminal Court
(ICC) in the case of Th. Lubanga Dyilo.
7. The Security Council resolution just mentioned, SC resolution 1304
(of 16.06.2000), upheld, over one and a half decades ago, inter alia, the duty to “make
reparations” for damages (loss of life and others) “inflicted on the civilian population in
Kisangani”, and requested the Secretary-General to “submit an assessment of the damage[s] as a
basis for such reparations” (para. 14). A report to that effect was forwarded to the President of the
Security Council, appended to a letter from the Secretary General of 04.12.2000 .
8. That report (resulting from an assessment mission to Kisangani), which did not have the
pretension to address at length or to exhaust the issue of reparations (para. 1), nonetheless singled
out programmes of rehabilitation of victims (paras. 33-34). The report pointed out that the “recent
war” in the D.R. Congo “involved seven neighbouring countries”, creating a situation that “resulted
in a major humanitarian crisis”: the war-affected people rose “by around 7 to 20 million”,
including “1.8 million internally displaced people and over 400 thousand refugees”, with “serious
repercussions on the stability of the entire central African region” (paras. 13 and 44) .
9. So, in view of the virtual impossibility to provide restitutio in integrum in cases of mass
crimes, reparations were seen, already one and a half decades ago, in 2000, to include not only
compensation and satisfaction, but also rehabilitation of the victims (medical and social services),
apologies (as satisfaction), guarantees of non-repetition of the grave breaches (occurred in the
armed conflicts of the Great Lakes), among other forms of reparation. Half a decade later, the ICJ
delivered its Judgment on the merits in the case of Armed Activities on the Territory of the
Congo (2005), and now, over a decade later, we are still in the written phase of the proceedings on
reparations for damages. Justitia longa, vita brevis.
II. REACH AND R EPARATION C ONFORMING AN INDISSOLUBLE W HOLE
10. May I recall that the duty of reparation is deeply and firmly-rooted in the history of the
law of nations, going back to its origins, when it marked presence in the writings of the “founding
fathers” of our discipline, who expressly referred to it in the light of the principle neminem laedere.
I had the occasion to review their writings in my extensive Separate Opinion in the case of
A.S. Diallo (reparations, Guinea versus D.R. Congo, Judgment of 19.06.2012). May I herein single
out and stress an important point.
Cf. U.N./Security Council doc. S/2000/1153, of 04.12.2000, pp. 1-12.
As I pointed out in my Declaration (para. 11 n. 5) appended to the Court’s Order of 11.04.2016, the great
proportions and complexity of the armed conflicts in the Great Lakes are gradually being written in historical
bibliography. - 3 -
11. Thus, already in the first half of the XVIth century, Francisco de Vitoria held, in his
celebrated Second Relectio De Indis (1538-1539), that “the enemy who has done the wrong is
4
bound to give all this redress” ; there is a duty, even amidst armed hostilities, to make restitution
(of losses) and to provide reparation for “all damages” . F. de Vitoria found inspiration in the
much earlier writings of Thomas Aquinas (from the XIIIth century), and pursued a6
anthropocentric outlook in his lectures at the University of Salamanca .
12. The new humanist thinking came thus to mark presence in the emerging law of nations.
In the second half of the XVIth century, Bartolomé de Las Casas, in his De Regia Potestate (1571),
after invoking the lessons of Thomas Aquinas, also asserted the duty of restitutio and reparation for
damages . 7 In one of his best-known works, Brevísima Relación de la Destrucción de las
Indias (1552), B. de Las Casas not only denounced the nu8erous massacres of native people, but
also asserted the duty of reparations for damages . Still in the XVIth century, the duty of restitutio
and reparation for damages was Juan Roa Dávila, in his De Regnorum Iusticia (1591), also
9
referring to Thomas Aquinas .
13. Later on, in the XVIIth century, Hugo Grotius, in his well-known De Jure Belli ac
Pacis (1625), dedicated a whole chapter to the obligation of reparation for damages (book II,
10
chapter 17) . He kept in mind the dictates of recta ratio. To him, the “injured party” was not
necessarily a State; he referred to distinct kinds of damage caused by breaches of “rights resulting
to us”, or from “losses suffered by negligence”; such damages or losses created an obligation of
11
reparation .
14. Also in the XVIIth century, Samuel Pufendorf, in his thoughtful book On the Duty of
Man and Citizen According to Natural Law (1673), stressed the need to provide reparation for
damages at the same time that condemned by natural law vengeance, so as to secure peace. He
warned that, without providing restitutio,
4
Franciscus de Victoria, Second Relectio On the Indians [De Indis] [1538-1539], Oxford/London,
Clarendon Press/H. Milford, 1934 [reed.], p. LV.
5
Ibid., p. LV; and cf. Francisco de Vitoria, “Relección Segunda De los Indios” [1538-1539], in Obras de
Francisco de Vitoria Relecciones Teológicas (ed. T. Urdañoz), Madrid, BAC, 1955, p. 827.
6
As from his first lecture; cf. Francisco de Vitoria, Sobre el Poder Civil [Relectio de Potestate Civili, 1528]
(ed. J. Cordero Pando), Salamanca, Edit. San Estéban, 2009 [reed.], pp. 22 and 44.
7
Bartolomé de Las Casas, De Regia Potestate o Derecho de Autodeterminación [1571] (eds. L. Pereña,
J.M. Pérez-Prendes, V. Abril and J. Azcárraga), CSIC, Madrid, 1969, p. 72.
8
Bartolomé de Las Casas, Brevísima Relación de la Destrucción de las Indias [1552], Barcelona, Ediciones 29,
2004 [reed.], pp. 14, 17, 23, 27, 31, 45, 50, 72-73, 87 and 89-90 (massacres), Bartolomé de Las Casas, Brevísima
Relación de la Destruición de las Indias [1552], Barcelona, Ed. Galaxia Gutenberg / Universidad de Alicante, 2009,
pp. 91-92 and 116-117.
9Juan Roa Dávila, De Regnorum Iusticia o El Control Democrático [1591] (eds. L. Pereña, J.M. Pérez-Prendes
and V. Abril), Madrid, CSIC/Instituto Francisco de Vitoria, 1970, pp. 59 and 63.
10Hugonis Grotii, De Iure Belli Ac Pacis [1625], book II, ch. XVII, The Hague, M. Nijhoff, 1948, pp. 79-82.
11
Ibid., pp. 79-80, paras. I and VIII-IX; and cf. H. Grotius, Le droit de la guerre et de la paix [1625] (eds.
D. Alland and S. Goyard-Fabre), Paris, PUF, 2005 [reed.], pp. 415-416 and 418, paras. I and VIII-IX. - 4 -
“men in their wickedness will not refrain from harming each other; and the one who
has suffered loss will not readily bring himself to make peace with the other as long as
he has not obtained compensation . . . The obligation to make restitution for loss
arises not only from harm done with intentional malice but also from harm done by
12
negligence or by easily avoidable fault, without direct intention” .
15. Subsequently, in the XVIIIth century, also in the line of jusnaturalist thinking,
Christian Wolff, in his book Principes du droit de la nature et des gens (1758), also asserted the
13
duty of appropriate reparation for damages . Other examples could be added, but the
aforementioned suffice for the purpose of the present Separate Opinion. It is not surprising to find
that the “founding fathers” of international law were particularly attentive to the duty of reparation
for damages. They addressed reparations in respect of distinct sorts of disputes, concerning distinct
subjects, States as well as nations, peoples, groups and individuals.
16. Already in the XVIth century, F. de Vitoria viewed the international community of
emerging States as “co-extensive with humanity”, and the provision of redress corresponded to “an
international need” 14 in conformity with recta ratio. The emerging jus naturae et gentium was
15
universalist, directed to all peoples; law and ethics went together, in the search for justice .
Reminiscent of Cicero’s ideal of societas hominum , the “founding fathers” of international law
conceived a “universal society of the human kind” (commune humani generis societas)
encompassing all the aforementioned subjects of the law of nations (droit des gens).
17. The reductionist outlook of the international legal order, which came to prevail in
the XIXth and early XXth centuries, beholding only absolute State sovereignties and subsuming
human beings thereunder, led reparations into a standstill and blocked their conceptual
development. This latter has been retaken in current times, contributing to the historical process of
humanization of contemporary international law.
18. The legacy of the “founding fathers” of international law has been preserved in the most
lucid international legal doctrine, from the XVIth-XVIIth centuries to date. It marks its presence in
the universality of the law of nations, in the acknowledgment of the importance of general
principles of law, in the relevance attributed to recta ratio. It also marks its presence in the
acknowledgment of the indissoluble whole conformed by breach and prompt reparation.
12
Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law [1673] (eds. J. Tully and
M. Silverthorne), Cambridge, Cambridge University Press, 2003 [reprint], pp. 57-58, and cf. pp. 59-60.
13
Christian Wolff, Principes du droit de la nature et des gens [1758], vol. III, Caen, Ed. Université de Caen,
2011 [reed.], ch. VI, pp. 293-294, 296-297 and 306.
1Cf. Association Internationale Vitoria-Suarez, Vitoria et Suarez: Contribution des théologiens au Droit
international moderne, Paris, Pédone, 1939, pp. 73-74, and cf. pp. 169-170; J. Brown Scott, The Spanish Origin of
International Law Francisco de Vitoria and His Law of Nations, Oxford/London, Clarendon Press/H. Milford, 1934,
pp. 282-283.
1. [Various Authors,] Alberico Gentili - Giustizia, Guerra, Imperio (Atti del Convegno di San Ginesio, sett.
2010), Milano, Giuffrè Edit., 2014, pp. 275 and 320, and cf. pp. 299-300 and 327.
1Cf., inter alii, e.g., M. Luque Frías, Vigencia del Pensamiento Ciceroniano en las Relecciones
Jurídico-Teológicas del Maestro Francisco de Vitoria, Granada, Edit. Comares, 2012, pp. 70, 95, 164, 272-273, 275,
278-279, 284, 398-399 and 418-419; A.A. Cançado Trindade and V.F.D. Cançado Trindade, “A Pré-História do
Princípio de Humanidade Consagrado no Direito das Gentes: O Legado Perene do Pensamento Estóico”, in O Princípio
de Humanidade e a Salvaguarda da Pessoa Humana (eds. A.A. Cançado Trindade and C. Barros Leal), Fortaleza/Brazil,
IBDH/IIDH, 2016, pp. 49-84. - 5 -
19. Reparations in particular collective reparations are at last attracting growing
attention of international legal doctrine in our days, as well as in case-law. This should not pass
unnoticed; to recall just one example, the ICC (Appeals Chamber), e.g., in its recent Judgment on
reparations (of 03.03.2015) in the case of Th. Lubanga Dyilo, has drawn particular attention to
17
collective reparations, in the factual context of the case .
III. THE FUNDAMENTAL DUTY OF PROMPT REPARATION
20. When damages ensuing from grave violations of the International Law of Human Rights
and International Humanitarian Law have occurred, as some of those found by the
ICJ (2005 Judgment) in the present case concerning Armed Activities on the Territory of the Congo,
the ultimate beneficiaries of the reparations due are the victims, human beings as subjects of
international law. The duty of reparation is not only a “secondary obligation” (as conventional
wisdom tries to make one believe in current times). Not at all: it is, in my perception, a truly
fundamental obligation. Such breaches entail the duty of prompt reparation, conforming an
indissoluble whole.
21. Breach and reparation, in my understanding, cannot be separated in time, as the latter is
to cease promptly all the effects of the former. The harmful effects of wrongdoing cannot be
allowed to prolong indefinitely in time, without reparations to the victims. The duty of reparation
does not come, as a “secondary obligation”, after the breach, to be complied when the States
concerned deem feasible. The duty of reparation, a fundamental obligation, arises immediately
with the breach, to be promptly complied with, so as to avoid the aggravation of the harm already
done, and restore the integrity of the legal order.
22. Hence its fundamental importance, especially if we approach it from the perspective of
the centrality of the victims, which is my own. The indissoluble whole conformed by breach and
reparation admits no disruption by means of undue and indefinite prolongation of time. In the cas
d’espèce, the present Order discloses that the contending parties are aware of the passing of time
without reparation and its negative impact upon the victims individually or in groups.
23. And the Court, reassuringly, for the first time, expresses in the present Order, just before
its resolutory points, its own consciousness of the need, at this stage, “to rule on the question of
reparations without undue delay”, so as to avoid further undue prolongation of time. After all, only
with reparation (from the Latin reparare, “to dispose again”) will the effects of the breaches be
made to cease: an international tribunal should keep in mind that it is unreasonable and unjust to
spend years and years to determine reparations. Only the prompt compliance with the fundamental
duty of full reparation will cease the consequences ensuing from the breaches, thus restoring the
integrity of the international legal order.
IV. R EPARATIONS IN D ISTINCT FORMS
24. There is a remaining point to be made here. In the course of the current proceedings on
reparations in the present case concerning Armed Activities on the Territory of the Congo,
reparations in distinct forms are to be kept in mind. The contending parties, D.R. Congo and
Uganda, have shown awareness also of that, in their respective Memorials on reparations. Each of
17Paragraphs 7, 52-53, 126, 133, 147, 152-153, 155-156, 165-166, 177, 180, 207 and 212. - 6 -
them refers to reparations, in the forms, in particular, of compensation and satisfaction, even
though, as already pointed out, there are still other forms of reparations , so as to alleviate human
suffering and also to foster reconciliation.
25. For example, in its Memorial, dated 26.09.2016, the D.R. Congo refers to reparation in
its distinct forms. Under the heading of compensation, the D.R. Congo claims reparation for
damage caused to people, to property, to natural resources, as well as macro-economic damage.
Under the heading of satisfaction, the D.R. Congo claims reparation in the form of the initiation of
criminal investigations and prosecutions of officers and soldiers of Uganda’s People’s Defence
Force, the creation of a fund to promote reconciliation between the Hema and Lendu peoples in
Ituri, and the payment of a lump sum to repair non-material damage suffered by the Congolese
State and population.
26. For its part, in its Memorial, dated 28.09.2016, Uganda likewise refers to reparation in its
distinct forms. Under the heading of compensation, Uganda claims reparation for damage caused
to its Chancery buildings. Under the heading of satisfaction, Uganda refers to damage caused to
Ugandan diplomats and other persons, and to diplomatic premises and property; it expresses its
understanding that the responsibility findings in the ICJ 2005 Judgment constitute an “appropriate
form of satisfaction”, providing reparation for the damages suffered.
27. The attention of the contending parties to reparations in its distinct forms may help to
avoid further undue prolongations of time in the current proceedings in the cas d’espèce. In my
Dissenting Opinion in the ICJ Order of 28.05.2009 in the case concerning the Obligation to
Prosecute or Extradite, I devoted special attention to the need to bridge or reduce the décalage
between the time of human beings and the time of human justice (paras. 46-64), pondering that it is
“indeed imperative” to do so (para. 49).
V. C ONCLUDING O BSERVATIONS
28. In my understanding, the Court is not conditioned or limited by what the parties request
or want, not even in the fixing of time-limits. As I have been pointing out within the ICJ time and
19
time again, and I reiterate it herein, the Court is not an arbitral tribunal . The Court is
master of its own procedure, also in the fixing of time-limits, in the path towards the realization of
justice, avoiding the undue prolongation of time.
29. Justitia longa, vita brevis; the time of human justice is not the time of human beings. If
we care to seek new and forward-looking ideas to endeavour to overcome this décalage, we are
likely to find them in the lessons of the “founding fathers” of international law. Although the
world has entirely changed from the times of the “founding fathers” of the law of nations (droit des
gens) to our own, the fulfilment of human aspirations and the search for the realization of justice
are a-temporal, remain always present, as imperatives of the human condition itself.
18Cf. paragraph 9, supra, of the present Separate Opinion.
19
Cf., e,g., to this effect, ICJ, case of the Obligation to Prosecute or Extradite (Order of 28.05.2009), Dissenting
Opinion of Judge Cançado Trindade, para. 88; ICJ, case of the Application of the International Convention on the
Elimination of All Forms of Racial Discrimination [CERD] (Judgment of 01.04.2011), Dissenting Opinion of
Judge Cançado Trindade, paras. 205-206; ICJ, [merged] cases of the Certain Activities Carried out by Nicaragua in the
Border Area / Construction of a Road in Costa Rica along the San Juan River (Judgment of 16.12.2015), Separate
Opinion of Judge Cançado Trindade, paras. 39-41; ICJ, case of Alleged Violations of Sovereign Rights and Maritime
Spaces in the Caribbean Sea, Judgment of 17.03.2016, Separate Opinion of Judge Cançado Trindade, para. 25. - 7 -
30. The lessons of the “founding fathers” of the law of nations (droit des gens) remain thus
as contemporary as ever, and forward-looking in our days. The duty of prompt reparation forms
20
part of their perennial legacy. That legacy is to keep being cultivated , so as to face new
challenges that contemporary international tribunals face in our days, from an essentially humanist
approach.
31. One is to move beyond the unsatisfactory inter-State outlook, if one is to foster the
progressive development of international law in the domain of reparations, in particular collective
reparations. Prolonged delays are most regrettable, particularly from the perspective of the victims.
As already seen, the “founding fathers” of international law went well beyond the strict inter-State
outlook, and were particularly attentive to the duty of prompt reparation for damages (cf. supra).
32. It is in jusnaturalist thinking as from the XVIth century that the goal of prompt
reparation was properly pursued. Legal positivist thinking as from the late XIXth century
unduly plac21 the “will” of States above recta ratio. It is in jusnaturalist thinking revived as it is
nowadays that the notion of justice has always occupied a central position, orienting law as a
whole; justice, in sum, is at the beginning of all law, being, moreover, its ultimate end.
(Signed) Antônio Augusto C ANÇADO T RINDADE .
___________
20
On that legacy, cf., recently, A.A. Cançado Trindade, A Humanização do Direito Internacional, 2nd. rev. ed.,
Belo Horizonte/Brazil, Edit. Del Rey, 2015, ch. XXIX (“A Perenidade dos Ensinamentos dos ‘Pais Fundadores’ do
Direito Internacional” [“The Perennity of the Teachings of the ‘Founding Fathers’ of International Law”], 2015,
pp. 647-676.
2Cf., in the last decades, e.g., inter alii, A.A. Cançado Trindade, O Direito Internacional em um Mundo em
Transformação, Rio de Janeiro, Edit. Renovar, 2002, pp. 1028-1029, 1051-1052 and 1075-1094 (universal values underlying
the new jus gentium, common to the whole of humankind, to all human beings - civitas maxima gentium); J. Maritain, Los
Derechos del Hombre y la Ley Natural, Buenos Aires, Ed. Leviatán, 1982 [reimpr.], pp. 79-80, and cf. p. 104 (the human
person transcending the State, and having a destiny superior to time). Cf. also, e.g., [Various Authors,] Droit naturel et droits
de l´homme Actes des Journées internationales de la Société d’Histoire du Droit (Grenoble-Vizille, mai 2009 ed.
M. Mathieu), Grenoble, Presses Universitaires de Grenoble, 2011, pp. 40-43, 52-53, 336-337 and 342.
Separate opinion of Judge Cançado Trindade