INTERNATIONAL COURT OF JUSTICE
_________________________________________________________________
CASE CONCERNING
ARMED ACTIVITIES ON THE TERRITORY OF THE CONGO
DEMOCRATIC REPUBLIC OF THE CONGO
v.
UGANDA
MEMORIAL OF UGANDA ON REPARATION
VOLUME II
28 SEPTEMBER 2016
VOLUME II
TREATIES & AGREEMENTS
Annex 1 Ngurdoto-Tanzania Agreement between the Democratic Republic of the
Congo and the Republic of Uganda on Bilateral Cooperation (8 Sept.
2007)
Annex 2 Joint Communiqué Issued by the Democratic Republic of the Congo and
the Republic of Uganda Held on 4th August 2016, at Mweya Safari
Lodge, Kasese District, Uganda (4 Aug. 2016)
UGANDA GOVERNMENT DOCUMENTS
Annex 3 Loss of Uganda Government Property at Uganda’s Embassy, Kinshasa
Annex 4 Photographs of Damages to Uganda’s Chancery Located at No. 17
Tombalbaye Avenue de Travailure, Gombe, Kinshasa
Annex 5
Annex 5-A
Government of Uganda, Response by Uganda on the Evaluation of the
Evidence Submitted by the Democratic Republic of Congo in Support of
Her Claim Arising out of the ICJ Judgment of December 2005 (24-29
Nov. 2014)
Ministry of Foreign Affairs of Uganda, Letter to the Solicitor General,
Ministry of Justice and Constitutional Affairs, in regard to measurements
for the Uganda renovated building located at plot 17 avenue
Tombalbaye, District of Gombe, City of Kinshasa, Democratic Republic
of Congo (26 Sep. 2016)
JOINT UGANDA-DRC DOCUMENTS
Annex 6 Government of Uganda and the Government of the Democratic Republic
of Congo, Agreed Minutes of the Ministerial Level Meeting between the
Republic of Uganda and the Democratic Republic of Congo (25 May
2010)
Annex 7 Government of Uganda and the Government of the Democratic Republic
of Congo, Minutes of the Ministerial Meeting between the Republic of
Uganda and the Democratic Republic of Congo (13-14 Sept. 2012)
Annex 8 Government of Uganda and the Government of the Democratic Republic
of Congo, Minutes of the 3rd Meeting of Uganda and Congolese Experts
on the Implementation of the Ruling of the International Court of Justice
of 19 December 2005 (14 Dec. 2012)
Annex 9 Government of Uganda and the Government of the Democratic Republic
of Congo, Agreed Minutes of the 2nd Ministerial Meeting of the Ad Hoc
Committee of Uganda/Democratic Republic of Congo on the
Implementation of the Ruling of the ICJ (2005) (24-27 Nov. 2014)
Annex 10 Government of Uganda and the Government of the Democratic Republic
of Congo, The Joint Report of the Meeting of Experts of the Democratic
Republic of Congo and the Republic of Uganda on the Implementation
on the Judgment of the ICJ of 19th December 2005 (13-17 Mar. 2015)
Annex 11 Government of Uganda and the Government of the Democratic Republic
of Congo, The Agreed Minutes of the 4th Meeting of Ministers of the
Democratic Republic of Congo and the Republic of Uganda on the
Implementation of the Judgment of the ICJ of 19th December 2005 (17-
19 Mar. 2015)
THIRD PARTY DOCUMENTS, INCLUDING INVOICES AND WIRE
TRANSFER RECEIPTS
Annex 12 GEOCODES sprl, Travaux de Rehabilitation de la Residence de
l’ambassadeur de la Republique de l’Ouganda a Kinshasa (July 2007)
Annex 13 GEOCODES sprl, Devis Supplementaire des Travaux de la
Rehabilitation de la Residence de l’Ambassadeur de l’Ouganda a
Kinshasa - Gombe R.D.C. (Jan. 2008)
Annex 14 Letter from GEOCODES sprl to the Ambassador of Uganda to
Democratic Republic of Congo (29 July 2008)
Annex 15 SAFRICAS Invoices and Wire Transfer Receipts of Payments by
Uganda’s Embassy in Respect of Renovation of the Ugandan Chancery
Located at No. 17 Tombalbaye Avenue de Travailure, Gombe, Kinshasa
(2013-2016)
Annex 16 Intentionally Omitted
UNITED NATIONS DOCUMENTS
Annex 17 U.N. Committee on Economic, Social and Cultural Rights, Report on the
Fifth Session (26 Nov. – 14 Dec. 1990), Annex III, General Comment No.
3 (1990): the nature of States parties’ obligations (art. 2, para. 1 of the
Covenant), U.N. Doc. E/1991/23 (1991)
Annex 18 “Ban Welcomes Signing of Declaration between DR Congo-M23”,
United Nations News Centre (13 Dec. 2013)
ACADEMIC ARTICLES & BOOKS
Annex 19 J.C. Witenberg, “La théorie des preuves devant les juridictions
internationals”, 56 Recueil des Cours 1 (1936-II)
Annex 20 Marjorie Whiteman, Damages in International Law (1943)
Annex 21 Jean-Flavien Lalive, “Quelques remarques sur la preuve devant la Cour
permanente et la Cour internationale de Justice”, 7 Annuaire suisse de
droit international 77 (1950)
Annex 22 William Bishop, “State Responsibility”, 2 Recueil des Cours 384 (1965)
Annex 23 Durward Sandifer, Evidence before International Tribunals (1975)
Annex 24 Keith Highet, “Evidence, the Court, and the Nicaragua Case”, 81 American
Journal of International Law 1 (1987)
Annex 25 Eduardo Valencia-Ospina, “Evidence before the International Court of
Justice”, 1 International Law Forum 202 (1999)
Annex 26 Chittharanjan Amerasinghe, Evidence in International Litigation (2005)
Annex 27 Maurice Kamto, “Les moyens de preuve devant la Cour internationale de
Justice à la lumière de quelques affaires récentes portées devant elle”, 49
German Yearbook of International Law 259 (2006)
Annex 28 Richard Falk, “Reparations, International Law, and Global Justice”, in THE
HANDBOOK OF REPARATIONS (P. de Greiff ed., 2006)
Annex 29 Ruth Teitelbaum, “Recent Fact-finding Developments at the International
Court of Justice”, 6 Law and Practice of International Courts and
Tribunals 119 (2007)
Annex 30 Christian Tomuschat, “Reparations in Favour of Individual Victims of
Gross Violations of Human Rights and International Humanitarian Law”,
in PROMOTING JUSTICE, HUMAN RIGHTS AND CONFLICT RESOLUTION
THROUGH INTERNATIONAL LAW, LIBER AMICORUM LUCIUS CAFLISCH (M.
Kohen ed., 2007)
Annex 31 Stephan Wittich, “Punitive Damages”, in THE LAW OF INTERNATIONAL
RESPONSIBILITY (J. Crawford et al. eds., 2010)
Annex 32 P. Tomka & V.-J. Proulx, “The Evidentiary Practice of the World Court”
in LIBER AMICORUM GUDMUNDUR EIRIKSSON (J. C. Sainz-Borgo ed.,
forthcoming 2016)
NEWSPAPER REPORTS
Annex 33 “Eighth Pleinary Meeting Between the DR Congo Government and M23”,
International Conference on the Great Lakes Region (11 Jan. 2013)
Annex 1
Ngurdoto-Tanzania Agreement between the Democratic Republic of the Congo and the Republic
of Uganda on Bilateral Cooperation (8 Sept. 2007)
Annex 1
Annex 1
Annex 1
Annex 1
Annex 1
Annex 1
Annex 1
Annex 1
Annex 1
Annex 1
Annex 2
Joint Communiqué Issued by the Democratic Republic of the Congo and the Republic of Uganda
Held on 4th August 2016, at Mweya Safari Lodge, Kasese District, Uganda (4 Aug. 2016)
Annex 2
Annex 2
Annex 2
Annex 2
Annex 2
Annex 2
Annex 3
Loss of Uganda Government Property at Uganda’s Embassy, Kinshasa
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 3
Annex 4
Photographs of Damages to Uganda’s Chancery Located at No. 17 Tombalbaye Avenue de
Travailure, Gombe, Kinshasa
Annex 4
Annex 4
Annex 4
Annex 4
Annex 4
Annex 4
Annex 4
Annex 4
Annex 4
Annex 4
Annex 4
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Annex 4
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Annex 4
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Annex 5
Government of Uganda, Response by Uganda on the Evaluation of the Evidence Submitted by
the Democratic Republic of Congo in Support of Her Claim Arising out of the ICJ Judgment of
December 2005 (24-29 Nov. 2014)
Annex 5
Annex 5
Annex 5
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Annex 5-A
Ministry of Foreign Affairs of Uganda, Letter to the Solicitor General, Ministry of Justice
and Constitutional Affairs, in regard to measurements for the Uganda renovated building
located at plot 17 avenue Tombalbaye, District of Gombe, City of Kinshasa, Democratic
Republic of Congo (26 Sep. 2016)
Annex 5-A
Annex 6
Government of Uganda and the Government of the Democratic Republic of Congo, Agreed
Minutes of the Ministerial Level Meeting between the Republic of Uganda and the Democratic
Republic of Congo (25 May 2010)
Annex 6
Annex 6
Annex 6
Annex 6
Annex 7
Government of Uganda and the Government of the Democratic Republic of Congo, Minutes of
the Ministerial Meeting between the Republic of Uganda and the Democratic Republic of Congo
(13-14 Sept. 2012)
Annex 7
Annex 7
Annex 7
Annex 7
Annex 8
Government of Uganda and the Government of the Democratic Republic of Congo, Minutes of
the 3rd Meeting of Uganda and Congolese Experts on the Implementation of the Ruling of the
International Court of Justice of 19 December 2005 (14 Dec. 2012)
Annex 8
Annex 8
Annex 8
Annex 8
Annex 9
Government of Uganda and the Government of the Democratic Republic of Congo, Agreed
Minutes of the 2nd Ministerial Meeting of the Ad Hoc Committee of Uganda/Democratic
Republic of Congo on the Implementation of the Ruling of the ICJ (2005) (24-27 Nov. 2014)
Annex 9
Annex 9
Annex 9
Annex 9
Annex 9
Annex 10
Government of Uganda and the Government of the Democratic Republic of Congo, The Joint
Report of the Meeting of Experts of the Democratic Republic of Congo and the Republic of
Uganda on the Implementation on the Judgment of the ICJ of 19th December 2005 (13-17 Mar.
2015)
Annex 10
Annex 10
Annex 10
Annex 10
Annex 10
Annex 10
Annex 10
Annex 11
Government of Uganda and the Government of the Democratic Republic of Congo, The Agreed
Minutes of the 4th Meeting of Ministers of the Democratic Republic of Congo and the Republic
of Uganda on the Implementation of the Judgment of the ICJ of 19th December 2005 (17-19
Mar. 2015)
Annex 11
Annex 11
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Annex 12
GEOCODES sprl, Travaux de Rehabilitation de la Residence de l’ambassadeur de la
Republique de l’Ouganda a Kinshasa (July 2007)
12
Annex 12
13
Annex 12
14
Annex 12
15
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16
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17
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18
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19
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20
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22
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23
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24
Annex 12
25
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Annex 13
GEOCODES sprl, Devis Supplementaire des Travaux de la Rehabilitation de la Residence de
l’Ambassadeur de l’Ouganda a Kinshasa - Gombe R.D.C. (Jan. 2008)
1
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2
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3
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4
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5
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6
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7
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Annex 14
Letter from GEOCODES sprl to the Ambassador of Uganda to Democratic Republic of Congo
(29 July 2008)
1
Annex 14
Annex 15
SAFRICAS Invoices and Wire Transfer Receipts of Payments by Uganda’s Embassy in Respect
of Renovation of the Ugandan Chancery Located at No. 17 Tombalbaye Avenue de Travailure,
Gombe, Kinshasa (2013-2016)
Annex 15
Annex 15
Annex 15
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Annex 16
Intentionally Omitted
INTENTIONALLY OMITTED
Annex 16
Annex 17
U.N. Committee on Economic, Social and Cultural Rights, Report on the Fifth Session (26 Nov.
– 14 Dec. 1990), Annex III, General Comment No. 3 (1990): the nature of States parties’
obligations (art. 2, para. 1 of the Covenant), U.N. Doc. E/1991/23 (1991)
CESCR General Comment No. 3: The Nature of States Parties’ Obligations
(Art. 2, Para. 1, of the Covenant)
Adopted at the Fifth Session of the Committee on Economic,
Social and Cultural Rights, on 14 December 1990
(Contained in Document E/1991/23)
1. Article 2 is of particular importance to a full understanding of the Covenant
and must be seen as having a dynamic relationship with all of the other provisions of
the Covenant. It describes the nature of the general legal obligations undertaken by
States parties to the Covenant. Those obligations include both what may be termed
(following the work of the International Law Commission) obligations of conduct and
obligations of result. While great emphasis has sometimes been placed on the
difference between the formulations used in this provision and that contained in the
equivalent article 2 of the International Covenant on Civil and Political Rights, it is
not always recognized that there are also significant similarities. In particular, while
the Covenant provides for progressive realization and acknowledges the constraints
due to the limits of available resources, it also imposes various obligations which are
of immediate effect. Of these, two are of particular importance in understanding the
precise nature of States parties obligations. One of these, which is dealt with in a
separate general comment, and which is to be considered by the Committee at its sixth
session, is the “undertaking to guarantee” that relevant rights “will be exercised
without discrimination ...”.
2. The other is the undertaking in article 2 (1) “to take steps”, which in itself, is
not qualified or limited by other considerations. The full meaning of the phrase can
also be gauged by noting some of the different language versions. In English the
undertaking is “to take steps”, in French it is “to act” (“s’engage à agir”) and in
Spanish it is “to adopt measures” (“a adoptar medidas”). Thus while the full
realization of the relevant rights may be achieved progressively, steps towards that
goal must be taken within a reasonably short time after the Covenant’s entry into
force for the States concerned. Such steps should be deliberate, concrete and targeted
as clearly as possible towards meeting the obligations recognized in the Covenant.
3. The means which should be used in order to satisfy the obligation to take steps
are stated in article 2 (1) to be “all appropriate means, including particularly the
adoption of legislative measures”. The Committee recognizes that in many instances
legislation is highly desirable and in some cases may even be indispensable. For
example, it may be difficult to combat discrimination effectively in the absence of a
sound legislative foundation for the necessary measures. In fields such as health, the
protection of children and mothers, and education, as well as in respect of the matters
dealt with in articles 6 to 9, legislation may also be an indispensable element for many
purposes.
4. The Committee notes that States parties have generally been conscientious in
detailing at least some of the legislative measures that they have taken in this regard.
It wishes to emphasize, however, that the adoption of legislative measures, as
Annex 17
specifically foreseen by the Covenant, is by no means exhaustive of the obligations of
States parties. Rather, the phrase “by all appropriate means” must be given its full
and natural meaning. While each State party must decide for itself which means are
the most appropriate under the circumstances with respect to each of the rights, the
“appropriateness” of the means chosen will not always be self-evident. It is therefore
desirable that States parties’ reports should indicate not only the measures that have
been taken but also the basis on which they are considered to be the most
“appropriate” under the circumstances. However, the ultimate determination as to
whether all appropriate measures have been taken remains one for the Committee to
make.
5. Among the measures which might be considered appropriate, in addition to
legislation, is the provision of judicial remedies with respect to rights which may, in
accordance with the national legal system, be considered justiciable. The Committee
notes, for example, that the enjoyment of the rights recognized, without
discrimination, will often be appropriately promoted, in part, through the provision of
judicial or other effective remedies. Indeed, those States parties which are also parties
to the International Covenant on Civil and Political Rights are already obligated (by
virtue of articles 2 (paras. 1 and 3), 3 and 26) of that Covenant to ensure that any
person whose rights or freedoms (including the right to equality and
non-discrimination) recognized in that Covenant are violated, “shall have an effective
remedy” (art. 2 (3) (a)). In addition, there are a number of other provisions in the
International Covenant on Economic, Social and Cultural Rights, including articles 3,
7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3) which would seem to be capable
of immediate application by judicial and other organs in many national legal systems.
Any suggestion that the provisions indicated are inherently non-self-executing would
seem to be difficult to sustain.
6. Where specific policies aimed directly at the realization of the rights
recognized in the Covenant have been adopted in legislative form, the Committee
would wish to be informed, inter alia, as to whether such laws create any right of
action on behalf of individuals or groups who feel that their rights are not being fully
realized. In cases where constitutional recognition has been accorded to specific
economic, social and cultural rights, or where the provisions of the Covenant have
been incorporated directly into national law, the Committee would wish to receive
information as to the extent to which these rights are considered to be justiciable (i.e.
able to be invoked before the courts). The Committee would also wish to receive
specific information as to any instances in which existing constitutional provisions
relating to economic, social and cultural rights have been weakened or significantly
changed.
7. Other measures which may also be considered “appropriate” for the purposes
of article 2 (1) include, but are not limited to, administrative, financial, educational
and social measures.
8. The Committee notes that the undertaking “to take steps ... by all appropriate
means including particularly the adoption of legislative measures” neither requires nor
precludes any particular form of government or economic system being used as the
Annex 17
vehicle for the steps in question, provided only that it is democratic and that all human
rights are thereby respected. Thus, in terms of political and economic systems the
Covenant is neutral and its principles cannot accurately be described as being
predicated exclusively upon the need for, or the desirability of a socialist or a
capitalist system, or a mixed, centrally planned, or laissez-faire economy, or upon any
other particular approach. In this regard, the Committee reaffirms that the rights
recognized in the Covenant are susceptible of realization within the context of a wide
variety of economic and political systems, provided only that the interdependence and
indivisibility of the two sets of human rights, as affirmed inter alia in the preamble to
the Covenant, is recognized and reflected in the system in question. The Committee
also notes the relevance in this regard of other human rights and in particular the right
to development.
9. The principal obligation of result reflected in article 2 (1) is to take steps “with
a view to achieving progressively the full realization of the rights recognized” in the
Covenant. The term “progressive realization” is often used to describe the intent of
this phrase. The concept of progressive realization constitutes a recognition of the
fact that full realization of all economic, social and cultural rights will generally not
be able to be achieved in a short period of time. In this sense the obligation differs
significantly from that contained in article 2 of the International Covenant on Civil
and Political Rights which embodies an immediate obligation to respect and ensure all
of the relevant rights. Nevertheless, the fact that realization over time, or in other
words progressively, is foreseen under the Covenant should not be misinterpreted as
depriving the obligation of all meaningful content. It is on the one hand a necessary
flexibility device, reflecting the realities of the real world and the difficulties involved
for any country in ensuring full realization of economic, social and cultural rights. On
the other hand, the phrase must be read in the light of the overall objective, indeed the
raison d’être, of the Covenant which is to establish clear obligations for States parties
in respect of the full realization of the rights in question. It thus imposes an obligation
to move as expeditiously and effectively as possible towards that goal. Moreover, any
deliberately retrogressive measures in that regard would require the most careful
consideration and would need to be fully justified by reference to the totality of the
rights provided for in the Covenant and in the context of the full use of the maximum
available resources.
10. On the basis of the extensive experience gained by the Committee, as well as
by the body that preceded it, over a period of more than a decade of examining States
parties’ reports the Committee is of the view that a minimum core obligation to ensure
the satisfaction of, at the very least, minimum essential levels of each of the rights is
incumbent upon every State party. Thus, for example, a State party in which any
significant number of individuals is deprived of essential foodstuffs, of essential
primary health care, of basic shelter and housing, or of the most basic forms of
education is, prima facie, failing to discharge its obligations under the Covenant. If
the Covenant were to be read in such a way as not to establish such a minimum core
obligation, it would be largely deprived of its raison d’être. By the same token, it
must be noted that any assessment as to whether a State has discharged its minimum
core obligation must also take account of resource constraints applying within the
country concerned. Article 2 (1) obligates each State party to take the necessary steps
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“to the maximum of its available resources”. In order for a State party to be able to
attribute its failure to meet at least its minimum core obligations to a lack of available
resources it must demonstrate that every effort has been made to use all resources that
are at its disposition in an effort to satisfy, as a matter of priority, those minimum
obligations.
11. The Committee wishes to emphasize, however, that even where the available
resources are demonstrably inadequate, the obligation remains for a State party to
strive to ensure the widest possible enjoyment of the relevant rights under the
prevailing circumstances. Moreover, the obligations to monitor the extent of the
realization, or more especially of the non-realization, of economic, social and cultural
rights, and to devise strategies and programmes for their promotion, are not in any
way eliminated as a result of resource constraints. The Committee has already dealt
with these issues in its general comment No. 1 (1989).
12. Similarly, the Committee underlines the fact that even in times of severe
resources constraints whether caused by a process of adjustment, of economic
recession, or by other factors the vulnerable members of society can and indeed must
be protected by the adoption of relatively low-cost targeted programmes. In support
of this approach the Committee takes note of the analysis prepared by UNICEF
entitled “Adjustment with a human face: protecting the vulnerable and promoting
growth,1 the analysis by UNDP in its Human Development Report 19902 and the
analysis by the World Bank in the World Development Report 1990.3
13. A final element of article 2 (1), to which attention must be drawn, is that the
undertaking given by all States parties is “to take steps, individually and through
international assistance and cooperation, especially economic and technical ...”. The
Committee notes that the phrase “to the maximum of its available resources” was
intended by the drafters of the Covenant to refer to both the resources existing within
a State and those available from the international community through international
cooperation and assistance. Moreover, the essential role of such cooperation in
facilitating the full realization of the relevant rights is further underlined by the
specific provisions contained in articles 11, 15, 22 and 23. With respect to article 22
the Committee has already drawn attention, in general comment No. 2 (1990), to
some of the opportunities and responsibilities that exist in relation to international
cooperation. Article 23 also specifically identifies “the furnishing of technical
assistance” as well as other activities, as being among the means of “international
action for the achievement of the rights recognized ...”.
14. The Committee wishes to emphasize that in accordance with Articles 55 and
56 of the Charter of the United Nations, with well-established principles of
international law, and with the provisions of the Covenant itself, international
1 G.A. Cornia, R. Jolly and F. Steward, Eds., Oxford, Clarendon Press, 1987.
2 Oxford, Oxford University Press, 1990.
3 Oxford, Oxford University Press, 1990.
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cooperation for development and thus for the realization of economic, social and
cultural rights is an obligation of all States. It is particularly incumbent upon those
States which are in a position to assist others in this regard. The Committee notes in
particular the importance of the Declaration on the Right to Development adopted by
the General Assembly in its resolution 41/128 of 4 December 1986 and the need for
States parties to take full account of all of the principles recognized therein. It
emphasizes that, in the absence of an active programme of international assistance and
cooperation on the part of all those States that are in a position to undertake one, the
full realization of economic, social and cultural rights will remain an unfulfilled
aspiration in many countries. In this respect, the Committee also recalls the terms of
its general comment No. 2 (1990).
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Annex 18
“Ban Welcomes Signing of Declaration between DR Congo-M23”, United Nations News Centre
(13 Dec. 2013)
United Nations News Centre - Ban welcomes signing of declarations between DR Congo-M23
http://www.un.org/apps/news/story.asp?NewsID=46733&Cr=democratic&Cr1=co…
Ban welcomes signing of declarations between DR Congo-M23
Members of the rebel group known as M23 withdrawing from the North Kivu provincial capital of Goma, Democratic Republic of
the Congo (December 2012). UN Photo/Sylvain Liechti
13 December 2013 – Secretary-General Ban Ki-moon has welcomed the signing of long-awaited accords
between the Government of the Democratic Republic of the Congo (DRC) and the M23 rebels it has been
fighting until last month, and called on all other armed groups in the country to lay down their weapons
and join the political process.
“This constitutes a positive step towards ending cycles of deadly conflicts that have caused immense
suffering to the Congolese people,” Mr. Ban said in a statement from his spokesperson.
Talks between the M23 – mostly composed of soldiers who mutinied from the DRC national army in April
last year – and the Government have been held in Kampala, Uganda, under the auspices of the
Chairperson of the International Conference for the Great Lakes Region (ICGLR), Ugandan President
Yoweri Museveni, the Mediator, as well as Ugandan Defence Minister and Facilitator, Crispus Kiyonga.
The deal, reached after weeks of stalled talks, was finalized last night in the Kenyan capital of Nairobi,
signed by President Museveni and President Joyce Banda of Malawi, the chairman of the Southern
African Development Community (SADC).
The agreements effectively end the Kampala Dialogue which aimed at reaching a final and principled
agreement that ensures the disarmament and demobilization of the M23 and accountability for human
rights abuses.
“The DRC Government and M23 have respectively signed declarations reflecting the consensus reached during the
Kampala Dialogue on steps necessary to end the armed activities of the M23,” towards long-term stability, reconciliation
and development in the country, according to the joint ICGLR-SADC (Southern African Development Community) final
communique.
Under the outcome documents, former rebels are entitled to amnesty for rebelling, but are not granted immunity to
alleged perpetrators of war crimes, crimes against humanity, genocide, or gross violations of human rights.
Both sides also agreed on the following: the release of prisoners; the end of M23 as a rebel movement and the possibility
to establish itself as a political party; and the return of extorted and looted properties during the M23's brief occupation
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United Nations News Centre - Ban welcomes signing of declarations between DR Congo-M23
http://www.un.org/apps/news/story.asp?NewsID=46733&Cr=democratic&Cr1=co…
of Goma in November 2012.
The two declarations also include provisions for the return of refugees and internally displaced persons to their homes. In
the past year alone, the fighting has displaced more than 100,000 people, exacerbating an ongoing humanitarian crisis in
the region which includes 2.6 million internally displaced persons and 6.4 million in need of food and emergency aid.
In his statement, Mr. Ban “urges the parties to begin implementation without delay and to fully respect their
commitments,” the spokesperson said.
Meanwhile, the joint communique calls on international partners, particularly the UN and the African Union (AU) “to work
together and provide support and resources to the Government of the DRC for the implementation of the commitments.”
Turning to the wider instability in the country, Mr. Ban called on all other armed groups in the country – which include the
Mayi Mayi, the Democratic Liberation Forces of Rwanda (FDLR), the National Army for the Liberation of Uganda (NALU)
and the Allied Democratic Forces (ADF) – to “lay down their weapons and pursue their objectives through peaceful
political means,” the spokesperson said.
Mr. Ban said that he hoped that the DRC and its neighbours will build on the latest positive developments to address the
root causes of instability in the eastern part of the country.
Those plans include the implementation of an 11-nation Peace, Security and Cooperation Framework for the DRC and
the region signed earlier this year under UN auspices as a comprehensive approach to sustainable peace in the region.
The Special Envoy of the Secretary-General to the Great Lakes Region, Mary Robinson, has been building support for
the framework which she has dubbed 'the framework of hope.'
Mrs. Robinson has led a group of Special Envoys, which includes Martin Kobler, the Secretary-General's Special
Representative in the DRC, as well as United States Special Envoy Russ Feingold, African Union Special Representative,
Boubacar Diarra and the European Union Senior Coordinator Koen Vervaeke.
News Tracker: past stories on this issue
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J.C. Witenberg, “La théorie des preuves devant les juridictions internationals”, 56 Recueil des
Cours 1 (1936-II)
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Marjorie Whiteman, Damages in International Law (1943)
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Jean-Flavien Lalive, “Quelques remarques sur la preuve devant la Cour permanente et la Cour
internationale de Justice”, 7 Annuaire suisse de droit international 77 (1950)
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William Bishop, “State Responsibility”, 2 Recueil des Cours 384 (1965)
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Durward Sandifer, Evidence before International Tribunals (1975)
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Keith Highet, “Evidence, the Court, and the Nicaragua Case”, 81 American Journal of
International Law 1 (1987)
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Eduardo Valencia-Ospina, “Evidence before the International Court of Justice”, 1 International
Law Forum 202 (1999)
202
International Law FORUM du droit international 1: 202–207, 1999.
© 1999 Kluwer Law International. Printed in the Netherlands.
Evidence before the International Court of Justice
EDUARDO VALENCIA-OSPINA*
Introduction
The Statute of the International Court of Justice deals with evidence in only
cursory terms. Article 48 provides that the Court shall “make all arrangements
connected with the taking of evidence”. This provision was carried over
verbatim from the Statute of the Permanent Court of International Justice
(PCIJ), and appears to be derived from similar provisions in the 1899 and 1907
Hague Conventions for the Pacific Settlement of International Disputes. As the
cases before the PCIJ primarily concerned the application of treaties, that Court
was in a position to establish and rely on facts that were not in dispute between
the parties, obviating, in most cases, the need for detailed rules of evidence.
The Statute of the present Court has remained virtually unaltered in terms of
evidence, and the current Rules of Court, adopted in 1978, continue this liberal
regime: the parties enjoy great freedom in relation to the production of
evidence, as does the Court in evaluating it. Article 48 of the ICJ Statute is
supplemented by a handful of general provisions, both in the Statute and the
Rules of Court, which give the Court a great deal of autonomy and flexibility in
dealing with evidentiary matters.
Nature of the ICJ Evidentiary System
Although the Court has been said to have taken the best from the accusatorial/
adversarial and the inquisitorial systems of evidence, the drafters of the earliest
sets of Rules of the PCIJ expressed the view that the broad and liberal system of
evidence created by the Statute was closer to the English system, based on the
freedom of the parties to present their own evidence. When the litigants are
sovereign States, it is perhaps only logical for them to have the main initiative
and responsibility in regard to the production of evidence. While the Court is
authorized to seek particular evidence, either at the request of a party or of its
own motion, and to question witnesses and experts, its primary function is to
supervise the taking of, and to decide as to the admissibility, relevance and
weight of evidence.
Like its predecessor, the PCIJ, the Court is often in a position to base its
decision on undisputed facts. While a domestic trial court is deemed to know
the law and can therefore confine itself almost entirely to making findings of fact
(leaving it in many cases to one or more appellate instances to rule on the
* The author is Registrar of the International Court of Justice.
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Eduardo Valencia-Ospina 203
ultimate legal repercussions of those predetermined facts) the International
Court of Justice must find both law and fact in a single instance, and is often
called upon to establish the existence of the rules of international law on which
its decisions are based.
Burden and Standard of Proof
In allocating the burden of proof, the Court follows the basic rule of actori
incumbit probatio: that the party putting forth a claim is required to establish the
requisite elements of law and fact. This may be rendered more difficult, in those
cases brought before the Court by Special Agreement, by the absence of an
identifiable plaintiff/defendant relationship, but the basic approach remains that
each party bears the burden of proving the facts on which it relies in making its
case. In the Minquiers and Ecrehos case,1 for example, the Special Agreement
between France and the United Kingdom asked the Court to determine which
country had sovereignty over certain rocks and islets. The Special Agreement
further provided that the written proceedings be “without prejudice to any
question of the burden of proof”.2 In its judgment the Court held that as both
parties claimed sovereignty, each was required to “prove its alleged title and the
facts upon which it relies.”3 Judge Levi Carneiro elaborated on this basic rule in
his separate opinion, stating that “it is for the Party interested in restricting the
application of an established rule or of a recognized fact to prove that such a
restriction is valid.”4
The concept of an identifiable or quantifiable standard of proof emanates
from the common law system, with its “beyond a reasonable doubt” in criminal
proceedings and the more lenient “by a preponderance of the evidence” in civil
proceedings. The international regime appears to reflect the civil law system, in
which all that is needed is that the court be persuaded, without reference to a
specific standard. Certain aspects of the Court’s practice require a prima facie
showing of particular matters, such as the existence of a jurisdictional basis for
the indication of provisional measures.5 Interestingly, the only guidance offered
1 Minquiers and Ecrehos (France/United Kingdom), 1953 ICJ Rep. 47 (Judgment of 17
November).
2 Id. at 49.
3 Id. at 52.
4 Id. at 99.
5 See, e.g., the cases concerning Legality of Use of Force ((Yugoslavia v. Belgium),
(Yugoslavia v. Canada), (Yugoslavia v. France), (Yugoslavia v. Germany), (Yugoslavia v.
Italy), (Yugoslavia v. Netherlands), (Yugoslavia v. Portugal), (Yugoslavia v. Spain),
(Yugoslavia v. United Kingdom), (Yugoslavia v. United States of America)), Orders of 2
June 1999.
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204 Recurring Themes / Thèmes récurrents
by the Statute with respect to the standards of proof is Article 53, which
provides that in the case of a party’s failure to appear or defend its case, the
Court may rule in favour of the other party, but only after it has satisfied itself
that it has jurisdiction, and “that the claim is well founded in fact and law”
[emphasis added].
Admissibility of Evidence
In keeping with its liberal evidentiary regime, there is no true hierarchy of
different forms of evidence before the Court. In this respect, the Court appears
to have been influenced primarily by continental legal systems, with written
evidence more common than oral evidence. Most of the evidence produced in
ICJ proceedings forms part of the often voluminous written pleadings. The
Statute and Rules of Court do, however, provide for the oral testimony of
witnesses and experts, and both have been employed before the Court.
Furthermore, the Court has on several occasions agreed to the production of
“sworn statements” (affidavits), a hybrid form of evidence common in Anglo-
Saxon law, which consists of the evidence being taken by a public official and
recorded by him in a formal instrument drawn up in accordance with the
provisions of his national law.
With respect to written evidence, Article 50(1) of the Rules of Court requires
the annexation to the original of every pleading of “certified copies of any
relevant documents adduced in support of the contentions contained in the
pleading.” In terms of formal admissibility, after the closure of the written
proceedings, Article 56 of the Rules requires either the consent of the other
party, or the permission of the Court, in order to submit further documents.
The substantive admissibility of documentary evidence is left to the appreciation
of the Court, and evidence tends to be regarded as admitted, unless challenged
by the other party.
Another aspect of the Court’s liberal evidentiary practice is that the parties
have traditionally been allowed recourse to available technical resources. Thus
the PCIJ accepted the production of photographs6 and the use of models,7 while
the present Court has agreed to view films.8 In more recent cases, a party has
6 See, e.g., Phosphates in Morocco (Italy v. France), 1936 P.C.I.J. (series C) No. 85, at
875.
7 See, e.g., Diversion of Water from the Meuse (Netherlands v. Belgium) 1936
P.C.I.J.(series C) No. 81, at 215.
8 See, e.g., Oral Arguments, Documents, 1959 I.C.J. Pleadings (II Temple of Preah
Vihear, Cambodia v. hailand) 130. If there is an objection from one of the parties, the
Court generally requires that that party be allowed to preview the film, Oral Arguments,
Documents 1978 I.C.J. Pleadings (V Continental Shelf, Tunisia/Libyan Arab Jamahiriya)
487, 492.8
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Eduardo Valencia-Ospina 205
produced a video cassette as an annex to a written pleading, or each of the
parties has been permitted to show a video cassette in the course of the
hearings.9
The Court has even relied, in certain circumstances, on what it termed
“matters of public knowledge”. In the Hostages case, for example, the Court
stated that “[t]he essential facts of the present case are, for the most part, matters
of public knowledge which have received extensive coverage in the world
press”10 and it went on to find that “[t]he information available . . . is wholly
consistent and concordant as to the main facts and circumstances of the case”.11
One explanation for this flexible approach to the admissibility of evidence is
the Court’s broad power, and perceived ability, to ascertain the weight and
relevance of particular evidence. Unlike a common-law lay jury, this highlyqualified
and experienced international bench is not considered to need
“protection” from potentially unreliable evidence. It is, therefore, perhaps
surprising that the Court has nevertheless, on a few occasions, rejected hearsay
evidence as “allegations falling short of conclusive evidence.”12
Recent Developments and New Challenges
Site Visit
In 1997, for the first time in its fifty-year history, the Court gave effect to the
provisions of Article 66 of the Rules of Court, by making a much-publicized
visit to the areas to which the case related. In the case concerning Gabcˇikovo-
Nagymaros Project (Hungary/Slovakia) the Court visited, between the first and
second rounds of oral pleadings, the Gabcˇikovo-Nagymaros hydroelectric dam
project on the Danube river. The visit was undertaken at the request of both
governments, which made joint arrangements for the site visit by concluding a
Protocol of Agreement and subsequent Agreed Minutes.
Accompanied by the Agents and technical advisers of the two States, the
Court visited areas between Bratislava and Budapest in both countries, at which
technical explanations were given and Judges were able to put questions of fact
to the two delegations.
9 Provided that the cassettes in question were exchanged in advance by the parties
through the intermediary of the Registry (see Gabcˇíkovo-Nagymaros Project (Hungary/
Slovakia), Judgment of 27 September 1997, para. 8).
10 United States Diplomatic and Consular Staff in Tehran (United States v. Iran) 1980
I.C.J. Rep. 9.
11 Id. at 10.
12 E.g., Corfu Channel (United Kingdom v. Albania) Merits, 1949 ICJ Rep. 4 (Judgment
of 9 April).
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206 Recurring Themes / Thèmes récurrents
Authenticity of Documents
In September 1997, following the filing of the parties’ memorials in the case
concerning Maritime delimitation and territorial questions between Qatar and
Bahrain (Qatar v. Bahrain), Bahrain informed the Court that it challenged the
authenticity of eighty-one documents produced by Qatar as annexes to its
memorial. Bahrain indicated its intention to disregard the content of these
documents for the purposes of preparing its counter-memorial, which was due
to be filed by 31 December 1997, simultaneously with that of Qatar.
Qatar responded that the objections raised by Bahrain came too late and that
it could not answer them in its counter-memorial, while Bahrain asserted that
reliance by Qatar on the challenged documents could give rise to procedural
difficulties affecting the orderly development of the case. It observed that the
question of the authenticity of the said documents was “logically preliminary to
. . . the determination of its substantive effect”.
After the filing of the counter-memorials in December 1997, Bahrain, noting
that Qatar continued to rely on the challenged documents, again emphasized
the need for the Court to decide the question of their authenticity as a
preliminary issue. On 30 March 1998 the Court ordered a further round of
written pleadings in the case, directing the submission, by each of the Parties, of
a Reply on the merits by 30 March 1999. The Court further ordered that, by 30
September 1998, Qatar should file an interim report, to be as comprehensive
and specific as possible, on the question of the authenticity of the challenged
documents. The Order specified that Qatar’s Reply should contain its detailed
and definitive position on the question and that Bahrain’s Reply should contain
its observations on Qatar’s interim report.
Qatar’s then announced, in its interim report, that it would not rely on the
disputed documents. The report, to which four experts’ reports were appended,
stated that while there were differing views not only between the respective
experts of the Parties, but also between its own experts, on the question of the
material authenticity of the documents, as far as the historical consistency of the
content of those documents was concerned, Qatar’s experts took the view that
Bahrain’s assertions showed exaggerations and distortions. Qatar pointed out
that its decision to disregard the documents was intended “to enable the Court
to address the merits of the case without further procedural complications”. In
an Order dated 17 February 1999, the Court placed on record Qatar’s decision
to disregard the challenged documents, and granted the parties a two-month
extension of the time-limit for the submission of their replies, which were not to
rely on those documents.
Hearing of Witnesses
Currently pending before the Court are two cases brought against the Federal
Republic of Yugoslavia under the 1948 Convention on the Prevention and
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Eduardo Valencia-Ospina 207
Punishment of the Crime of Genocide. Bosnia and Herzegovina initiated
proceedings in 1993, and Croatia in July 1999. In the case concerning
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v. Yugoslavia), Yugoslavia has filed counterclaims
(which the Court has declared admissible), asserting inter alia that Bosnia
and Herzegovina is responsible for acts of genocide committed against the Serbs
in Bosnia and Herzegovina.
The experience of the two International Criminal Tribunals (former
Yugoslavia and Rwanda) reveals that establishing an international crime can be
extremely fact-intensive. In particular, both tribunals have heard large numbers
of live witnesses; up to 150 in one recent ICTY case. Of course, as a criminal
tribunal, the ICTY is required by its rules to hear all witnesses presented by a
party. There is no similar requirement in the Statute or Rules of the International
Court of Justice, both of which contemplate,13 but do not prescribe,
witness (and expert) testimony.
The PCIJ heard witnesses on only one occasion, in 1926, in the case
concerning Certain German Interests in Polish Upper Silesia. Witnesses, and
witness-experts, have appeared before the present Court at the parties’ instance14
in several cases, including: Corfu Channel; Temple of Preah Vihear; Military and
Paramilitary Activities in and against Nicaragua; Land, Island and Maritime
Frontier Dispute; Elettronica Sicula S.p.A. (ELSI), but never in such numbers as is
customary before criminal tribunals. In the merits phase of the Southwest Africa
cases, the Respondent called fifteen witnesses, who were heard from 18 June to
14 July 1965 and 20 September to 21 October 1965, at a total of forty sessions
of the Court. It is therefore not inconceivable that the Court will be called
upon, in these cases arising under the Genocide Convention, to make difficult
and delicate evidentiary rulings on the subject of witness testimony, balancing
equitable and fact-finding considerations against the exigencies of the Court’s
limited resources of time and funds.
13 See, e.g., Articles 43(5) (“The oral proceedings shall consist of the hearing by the Court
of witnesses, experts, agents, counsel, and advocates.”) and 51 of the Statute; Articles 57,
58, 62, 63, 64, 65, 68, 70 and 71 of the Rules of Court.
14 Although contemplated by the Rules, there has never been a case in which witnesses
appeared before the Court at its own instance.
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Chittharanjan Amerasinghe, Evidence in International Litigation (2005)
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Maurice Kamto, “Les moyens de preuve devant la Cour internationale de Justice à la lumière de
quelques affaires récentes portées devant elle”, 49 German Yearbook of International Law 259
(2006)
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Richard Falk, “Reparations, International Law, and Global Justice”, in THE HANDBOOK OF
REPARATIONS (P. de Greiff ed., 2006)
c h a p t e r 1 3
...................................................................................................................................................
REPARATIONS,
INTERNATIONAL LAW,
AND GLOBAL JUSTICE:
A NEW FRONTIER
...................................................................................................................................................
richard falk
1. Points of Departure
.........................................................................................................................................................................................
It is only in the last decade or so that international law has moved significantly in
the direction of providing the means to pursue global justice, that is, in global
arenas or by reference to global standards and procedures, on behalf of the
individual and collective victims of severe injustices of the sort associated with
oppressive governing regimes.1 Prior to that time this class of issues pertaining to
global justice was treated as marginal, at best, to the endeavors of international law,
although overseas economic interests of individuals from the North received
periodic protection if encroached upon by governments in the South. But in the
1990s the combination of the end of the cold war, the rise to prominence of
international human rights, trends away from authoritarianism and toward constitutional
democracy, and the partial eclipse of sovereignty in a globalizing world
gave unexpected attention to the many facets of global justice, hitherto mainly
Annex 28
neglected, including steps designed to rectify the harm endured by individuals at
the hands of dictatorial and abusive governments.
At the forefront of these moves was the reinvigoration of efforts to impose
accountability on individuals associated with the perpetration of crimes of state,
highlighted by such high-profile cases as those associated with the transnational
pursuit of Augusto Pinochet and of Slodoban Milosevic.2 This emphasis on
accountability by leaders was reinforced by institutional and procedural innovations
enabling indictment and prosecution.
Of almost equal prominence was the temporarily increased acceptance of an
international responsibility on the part of the organized international community
to protect vulnerable populations facing catastrophic challenges, whether from an
abusive government or froman inability to provide governing authority, giving rise
to a series of humanitarian interventions as responses to chaos and oppression. This
historical climate of concern reached its climax with the KosovoWar under NATO
auspices in 1999, and has subsequently declined markedly. Here, the duty to protect
an oppressed and endangered Kosovar Albanian majority in the province of Kosovo
was assumed by a regional security alliance to validate military action against a
sovereign state, in this instance Serbia, even without the benefit of a prior mandate
from the United Nations Security Council. Such a use of force even if credibly
undertaken for protective purposes was always controversial from the perspective
of international law, and depends upon the presence of political factors that were
selectively present in the 1990s to a greater degree than at any other historical
moment, and have subsequently almost disappeared.3 The inability to mobilize
support for humanitarian intervention in the setting of ongoing, massive ethnic
cleansing and genocidal tactics in western Sudan during mid-2004 is indicative of
how restricted to context was the surge of humanitarian diplomacy in the 1990s. And
even then, without the presence of more strategic objectives of the sort present in
Kosovo, but absent in Rwanda during the genocide of 1994, the prospects for
humanitarian intervention by either theUNor a coalition of thewilling are minimal.
As part of this climate of global opinion that seemed in the 1990s more sensitive
to injustice than ever before, a new disposition to consider historic injustices
endured by individuals and groups was evident in international relations. As Elazar
Barkan, one of the more perceptive analysts of this welcome mutation in international
attitudes, notes, there was ‘the sudden appearance of restitution cases all
over the world’, leading him to postulate the possible beginnings of ‘a potentially
new international morality’.4 It is in this setting of a redress of historic grievances
that the issue of reparations makes its appearance, especially in the setting of
transitional justice arrangements, but not only. Part of this incipient normative
revolution of the 1990s was a concern with rectifying harm previously done to
individuals and groups, as well as punishing perpetrators and repudiating their
documented wrongdoing in an authoritative forum.What accounted for this focus
reparations, international law, and global justice 479
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on this redress agenda at such a historical moment is uncertain, but it undoubtedly
reflected a loss of a guiding geopolitical purpose after the end of the cold war
combined with the growing prominence of human rights and an impulse in
leadership circles to overcome the chorus of criticisms directed at the amorality
of neoliberal globalization.
Barkan and others, for entirely persuasive reasons, approach these issues of
restitution and reparations as primarily matters of morality and politics rather
than law, that is, treating these humanitarian initiatives as reflecting the impact of
moral and political pressures, rather than exhibiting adherence to previously
established or newly emerging legal standards and procedures.5 The sea changes
in the 1990s reflected almost exclusively a combination of special circumstances
generating political pressures and a mysteriously supportive moral ‘window of
opportunity’ in a global setting. But to the extent that morality and politics created
new widely shared expectations about appropriate behavior by governments,
international law was being generated, even if it did not assume in most instances
the positivist formality of treaty arrangements or the specificity of a meaningful
legal obligation that included measures designed to ensure consistent implementation.
Throughout the history of international society, the evolution of international
law has been closely related to prevailing political currents, evolving moral
standards, and dominant trends in religious thought. Such a linkage has been
particularly evident in the war/peace context, international law essentially embodying
the just war tradition as evolved by theologians, but it is also true with
respect to the recent prominence of a global justice agenda in which redress and
restitution play such a large part. In one sense the role of international law has been
generally one of codifying behavioral trends in state practice and shifting political
attitudes on the part of governments with the intention of stabilizing and clarifying
expectations about the future.
It seems essential to distinguish three sets of circumstances: the first, the main
preoccupation of international law and lawyers, involves disputes between states,
and increasingly other actors, in which the complaining party seeks relief from
alleged wrongs attributed to the defending party; the second involves war/peace
settings in which the victorious side imposes obligations on the losing side, ‘victors’
justice, which may or may not correspond with justice as perceived from a more
detached outlook; the third, achieving attention recently, involves transitions to
democracy settings in which the prior governing authority is held accountable for
alleged wrongs, and again reflect political outcomes of sustained struggle, but not
international war. These three contexts should be kept distinct for both analytical
and prescriptive purposes. In the first and second, there exists a more obvious role
for international norms, procedures, and institutions than in the third, which is
treated for most purposes as a matter of domestic discretion, although influenced
by wider trends of national practice in comparable instances, and by wider global
trends toward individual accountability for crimes against humanity.
480 richard falk
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To what extent these mainly encouraging developments involving the rendering
of global justice have been stymied, the window closed, by the September 11 attacks
and the American-led response are matters of uncertainty and conjecture at the
present.6 The refocusing of attention on global security issues seems to have
remarginalized in general the pursuit of the global justice agenda, including the
drive for reparations associated with various forms of historic redress other than
those associated with transitional issues in a given country relating to the recent
past.7 As developments in 2003 within Argentina suggest, a change of governmental
leadership at the national level can affect the approach taken to justice claims in a
transition process, including those involving a renewed resolve related to individual
criminal accountability and compensation for past abuse. Against this double
background of an inchoate normative revolution in the 1990s and the altered
historical setting of the early twenty-first century, this chapter analyzes the relevance
of international law to reparations, and especially whether and to what
extent reparations have acquired an international obligatory character of any
practical significance.8 Such significance is difficult to assess, especially as its
most tangible impact may be to encourage the provision by national legal systems
of remedies for various categories of losses sustained due to prior abuses of human
rights. To the extent that international law is relevant at all, it is to provide legal
arguments or jurisprudential background useful for representatives and advocates
of victims’ rights in domestic political arenas to the effect that victims are legally
entitled to reparations, and that the domestic system is obliged to make this right
tangible by providing meaningful procedures.
2. International Law: Authority and
Instruments
.........................................................................................................................................................................................
The fundamental norms of international law are contained in customary international
law, and reflect widely accepted basic ideas about the nature of law, its
relation to legal wrongs, and the duty to provide recompense. The Permanent
Court of Justice, set up afterWorldWar I, gave the most authoritative renderings of
this foundation for the legal obligation to provide reparations. This most general
international law imperative was set forth most authoritatively, although without
any equally general prospect of implementation, in the Chorzow Factory (Jurisdiction)
Case: ‘It is a principle of international law that the breach of an engagement
involves an obligation to make reparation in an adequate form.’9 The Advisory
reparations, international law, and global justice 481
Annex 28
Opinion by the International Court of Justice involving the Israeli Security Wall
reaffirmed this cardinal principle in ruling that Israel was under an obligation to
provide reparations to the Palestinians for damages sustained due to the illegal wall
built on their territory.10
A second equally important idea embodied in customary international law had
to do with the nationality of claims associated with wrongs done to individuals. In
essence, this norm expressed the prevailing understanding that only states were
subjects within the international legal order, and that wrongs done to foreign
individuals were in actuality inflicted upon their state of nationality. Accordingly,
if the individual was stateless, a national of the wrongdoing state, or a national of a
state unwilling to support the claim for reparations, there was no basis on which to
proceed. This limiting notion was expressed succinctly by the Permanent Court of
International Justice in the Mavrommatis Palestine Case: ‘[b]y taking up the case of
one of its subjects and by resorting to diplomatic action or international judicial
proceedings on his behalf, a state is in reality asserting its own rights—its right to
ensure, in the person of its subjects, respect for the rules of international law.’11 It is
important to appreciate that these formulations were made before there existed any
pretense of internationally protected human rights.
A third important idea in customary international law, that has persisted,
forbids a state to invoke national law as a legal defense in an international dispute
involving allegations of wrongdoing by the injured state. Such a principle
pertains to the setting of international disputes, which is where the main precedents
and doctrines of international law relative to reparations are fashioned.
Somewhat surprisingly, the International Law Commission (ILC) Articles
on State Responsibility, despite years of work, clarified to some extent this earlier
teaching, refining and codifying it conceptually more than changing it substantively.
12 The ILC approach to remedial or corrective justice was based on
distinguishing between restitution, compensation, and satisfaction. Restitution is
defined in Article 35 as the effort ‘to re-establish the situation which existed before
the wrongful act was committed’. Such a remedy is rather exceptional. It is usually
illustrated by reference to the Temple case before the International Court of Justice
(ICJ) in which Thailand was ordered to return religious relics taken from a
Buddhist temple located in Cambodia.13 This primary reliance on restitution
where practicable has been recently reaffirmed by the ICJ in its ruling on Israel’s
security wall, an important restatement of international law although contained in
an advisory opinion, because it was endorsed by fourteen of the fifteen judges. The
language of the Advisory Opinion expresses this viewpoint with clarity in paragraph
153: ‘Israel is accordingly under an obligation to return the land, orchards,
olive groves and other immovable property seized from any natural or legal
person for purposes of construction of the wall in the Occupied Palestinian
Territory. In the event that such restitution should prove to be materially impossible,
Israel has an obligation to compensate the persons in question for the damage
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suffered. The Court considers that Israel also has an obligation to compensate, in
accordance with the applicable rules of international law, all natural or legal
persons having suffered any form of material damage as a result of the wall’s
construction.’14
Article 35(a) and (b) of the ILC Draft Articles indicates that restitution is not the
appropriate form of reparations in circumstances where it is ‘materially impossible’
or would ‘involve a burden out of all proportion to the benefit deriving from
restitution instead of compensation’.
Compensation, resting on the fungibility of money, is more widely used to
overcome the adverse consequences caused by illegal acts. In the Chorzow case it
was declared that where restitution cannot be provided to the wronged state, then
the wrongdoer should be required to compensate up to the level of the value
attributed to whatever was lost, including loss of profits. Articles 36 and 37 go along
with this approach of full reimbursement, without qualifications based on capacity
to pay.
Satisfaction is the third, and lesser known, manner of providing reparations. The
ILC Articles make it a residual category in relation to restitution and compensation.
As explained by du Plessis, ‘[s]atisfaction provides reparation in particular for
moral damage such as emotional injury, mental suffering, injury to reputation and
similar damage suffered by nationals of the injured state’.15
Customary international law, as well as the ILC Draft Articles of State Responsibility,
impose an undifferentiated burden, as stated in Article 37, on the wrongdoing
state ‘to make full reparation for the injury caused by the internationally
wrongful act’. As such, it gives very little guidance in specific situations where a
variety of considerations may make the grant of full reparation undesirable for
various reasons, although commentary by the ILC on each article does go well
beyond the statement of the abstract rule.
International treaty law does no more than to restate these very general legal
ideas in a variety of instruments, and without the benefit of commentary attached
to the ILC articles. Because property rights are of paramount concern, the language
of reparation is not used, and the more common formulations emphasize compensation
for the wrongs suffered. The basic direction of these treaty norms also
derives from international customary law, especially legal doctrine associated with
the confiscation of foreign-owned property. The legal formula for overcoming the
legal wrong accepted in international law involved ‘prompt, adequate, and effective
compensation’. Discussion of ‘restitution’ and ‘satisfaction’ is abandoned as the
wrongdoing states are acknowledged by the United Nations to possess ‘permanent
sovereignty’ over natural resources.16
The Universal Declaration of Human Rights shifts the locus of relief to national
arenas and away from international disputes between sovereign states. Individuals
are endowed with competence, and the notion of wrongdoing is generalized to
encompass the entirety of human rights. Article 8 reads: ‘Everyone has the right
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to an effective remedy by the competent national tribunals for acts violating the
fundamental human rights granted him by the constitution or by the law.’ Of
course, such a right tends to be unavailable where it is needed most, although the
existence of the right does provide a legal foundation for reparation in future
circumstances when political conditions have changed.
Article 10 of the American Convention on Human Rights (1978) particularizes a
‘Right of Compensation’ in a limited and overly specific manner: ‘Every person has
the right to be compensated in accordance with the law in the event that he has
been sentenced by a final judgment through a miscarriage of justice.’ It seems to
refer exclusively to improper behavior of the state associated with criminal prosecution
and punishment within the judicial system. It is available only on the basis
of an individual initiative.
Article 14 of the Convention Against Torture and Other Cruel Inhuman and
Other Degrading Treatment or Punishment (1984) imposes on parties the obligation
to ‘ensure in its legal system that the victim of an act of torture obtains redress
and has an enforceable right to fair and adequate compensation, including the
means for as full rehabilitation as possible’. Again, the emphasis is on the legal duty
of the state to provide individuals who are victims with a remedy within the
domestic system of laws. That is, victims are not dependent on governments of
their nationality pursuing claims on their behalf, nor are nationals barred from
relief by the obstacle of sovereign immunity. Article 9 of the Inter-American
Convention to Prevent and Punish Torture (1985) similarly obligates parties to
‘undertake to incorporate into their national laws regulations guaranteeing suitable
compensation for victims of torture’.17 In the absence of case law it is difficult to
know what this standard might mean in practice, and whether it is purely aspirational
or represents a genuine effort to acknowledge the full spectrum of injury
that often results from torture and severe abuse. Beyond this duty of the state,
Article 8 allows persons alleging torture to internationalize their claims for relief
‘[a]fter all the domestic legal procedures of the respective State . . . have been
exhausted’ by submitting their case ‘to the international fora whose competence
has been recognized by that State’.
Within the European regional system there is a right of an individual in Article
50 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms (1950) to seek ‘just satisfaction’ in the event that national law
provides ‘partial reparation’ due to injury sustained as a result of a violation of the
Convention. A proceeding of this nature would fall within the authority of the
European Court of Human Rights. Here, too, the idea is to provide individuals
with a remedy at the regional level beyond what is available within the national
legal system.
These international law developments over the last half century have several
different important consequences for the wider interest in reparations as provided
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to a victimized group, especially in the context of transition from authoritarian
regimes:
. first, there is the shift in the emphasis of international law from the protection of
aliens abroad, and especially their property, to the protection of individuals who
experience abuses of human rights;
. second, there is a legal recognition that the state responsible for the abuse should
legally empower those who claim to have been victimized to pursue relief by way
of compensation through recourse to the national judicial system;
. third, the national identity of the victim and the sovereign immunity of the state
should not affect the availability of legal relief in the event of abuse;
. fourth, in the event of frustration at the national level, then some further
mechanism for providing relief is becoming available at either the regional or
global level, or both.
In summary, the importance of these international law developments is probably
indirect, but the shift from a concern with dispute settlement to human rights
does involve a major reorientation. The obligations embodied in legal instruments
are vague and abstract, and are difficult and cumbersome to implement, but
they do contribute to what might be called the formation of ‘a reparations ethos’
to the effect that individuals who have been wronged by applicable international
human rights standards, especially in the setting of torture and kindred maltreatment,
should be compensated as fully as possible. This ethos is a challenge to
notions of sovereignty associated with earlier ideas that a state can do no wrong
that is legally actionable, and that the wrong done to an individual is legally
relevant only if understood as a wrong done to the state of which he or she is a
national.
At the same time, the most important circumstances of reparations, leaving
aside postwar arrangements, are not really addressed directly by contemporary
international law. In authoritarian political settings, by definition, there is an
absence of judicial independence, and there is no prospect of relief even in extreme
situations. In postauthoritarian political settings, where there is an impulse to
achieve redress, the magnitude of the challenge requires some categorization of the
victims as well as a recognition of severe limits on the capacity of the new
government to provide anything approaching ‘adequate compensation’. In this
sense, the contributions of international law at this stage must be mainly viewed
as indirect, and the actual dynamics of reparations arrangements reflect a variety of
specific circumstances that exist in particular states. These arrangements have an
ad hoc character that makes it impossible to draw any firm conclusions about legal
expectations, much less frame this practice in the form of legal doctrine. For this
reason, among others, it is appropriate to view reparations as primarily an expression
of moral and political forces at work in particular contexts.18
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3. Shadows of Misunderstanding
.........................................................................................................................................................................................
Any broad consideration of the relevance of international law to the subject matter
of reparations needs to be sensitive to several background factors that could invite
misunderstanding if not addressed. Such factors illuminate the tensions that have
historically existed between considerations of global justice and political relationships
shaped by hierarchical relations between the strong and the weak.
For most people (other than specialists in international law concerned with
international disputes about wrongdoing), the idea of ‘international reparations’
recalls the burdens imposed on Germany at the end of World War I that were
embodied in the Versailles Treaty.19 These burdens were widely interpreted as
accentuating the hardships faced by German society in the 1920s, and were viewed
in retrospect as a damaging example of a ‘punitive peace’ that contributed to a
surge of German ultranationalism, producing a political climate conducive to
extremism of the sort represented by the Nazi movement. From an international
law perspective, the reparations imposed were perfectly legal, indeed specified in a
peace treaty formally accepted by Germany, but from a political perspective such
reparations were viewed as imprudent, if not disastrous, and from a moral perspective,
they were widely viewed as ill-deserved, mainly exhibiting the vengeful
appetite of the victors in the preceding war in which neither side could convincingly
claim the moral high ground. This ‘lesson of Versailles’ was heeded after
World War II, Germany being assisted in economic recovery and political normalization
despite the existence of a far stronger case for collective punishment of
German society than existed in 1918, given the multiple legacy of crime and tragedy
generated by Hitler’s regime.20 And the results are generally viewed as vindicating
the soft approach, reinforcing the repudiation of Versailles.
And yet, somewhat surprisingly, the ‘peace’ imposed on Iraq after the Gulf War
seems to have adopted the previously discredited Versailles model of punitive
peace, although the terminology of reparations was largely displaced in this
instance by the language of sanctions and claims, perhaps to avoid evoking bad
memories. At the same time, extensive assets and oil revenues were made available,
along with a procedure within the UN, to provide compensation to victims of Iraqi
harm arising out of its invasion of Kuwait in 1990, and so there was a justice
dimension so far as individual victims of Iraqi wrongdoing were concerned.21
Thus, overall, an important ambiguity emerges: the Iraqi people were punished
collectively and severely despite being entrapped in a brutal dictatorship, while the
various categories of victims arising from the international crimes of Iraq as
committed in Kuwait were the recipient of substantial reparative efforts to compensate
for losses sustained. In this respect, the positive side of reparations was
present. This whole framework of ‘sanctions’, combining the punitive with the
compensatory, was given legal stature in the form of unanimous UN Security
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Resolution 687, the harsh terms of which were accepted by a defeated and devastated
Iraq in the 1991 ceasefire that ratified the results of the Gulf War.22
There are two observations to be made. First, in the sphere of interstate reparations,
there is a confusing association of ‘reparations’ in language and policy both
with a largely discredited process of imposing collective punishment upon a
defeated state and its civilian population, and as seeking to give the victims of
illegal and criminal conduct on behalf of a state a meaningful remedy for harm
sustained in the form of substantial monetary compensation. Second, there is a
flexible capacity for international law to provide a legal imprimatur, either by
treaty or Security Council decision that ratifies a mechanism for the award of
‘reparations’, and gives legal expression to the geopolitical relationship that exists at
the end of a war, without regard to whether the motivations for reparations are
punitive or compensatory, or a mixture of the two. If the outcome of the war is
‘just’, and the victors are ‘prudent’, then the reparations imposed may contribute to
global justice, but if not, not. International law provides at this point no substantive
guidelines as to these assessments, and its main role is to provide victorious
powers with a flexible instrument by which to give a peace process in accord with
their goals and values an authoritative status.
The analogous dynamics of establishing reparations in the context of transitional
societies also reflects power variables, although there is often not a clear
dividing line between victory and defeat, but rather a political process that produces
a negotiated compromise that inhibits to varying degrees the redress of past
injustices by the newly emerging constitutional leadership. The arrangement is
formalized exclusively through a reliance on mechanisms provided by the governing
authorities enlisting the national legal system and establishing special administrative
procedures. There is no direct role for international law, except to the
extent of taking account of past wrongdoing as instances of ‘crimes against
humanity’, or indirectly, as responsive to international pressures associated with
imposing national means to determine accountability and rectifying past wrongs to
the extent possible, given the political and economic realities. In the context of the
Holocaust, and to some extent in relation to authoritarian antecedents to constitutional
government, the goal of reparations is also a deterrent message to future
leaders and a pledge of sorts by present leaders to repudiate the past and build a just
constitutional order.
Certainly, in the background of the sort of moral and political pressures effectively
brought to bear on Swiss banks by Holocaust survivors and their representatives
during the 1990s was the strong sense that these individuals, or in this case
sometimes their descendants, had truly been victims of internationally criminal
conduct and deserved some sort of redress even if belatedly.23 Decades had passed
since the occasions of wrongdoing, and it was only a change in global setting that
abruptly lent political credibility to claims that always had been actionable from
legal or moral perspectives. It was this credibility that overcame the impulse to
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disregard old claims as stale, and allegedly avoid opening old wounds. Such belated
redress went against the traditional disposition of law to reach finality with respect
to claims, both for the sake of stability and because evidence becomes less reliable
and often unavailable with the passage of time.
An additional source of misunderstanding pertaining to international law relates
to its state-centric orientation and traditions, which have been increasingly challenged
in a variety of ways in the last few decades. The modern structure of
international law was based on the idea that states were the only formal members
of international society, and that the legal interests of individuals if associated with
the actions of foreign governments were protected, if at all, by one’s country of
nationality on a discretionary basis.24 International wrongs of aliens were thus
treated as generating potential legal claims by a government on behalf of their
aggrieved nationals, but purely as a matter of political and moral discretion, and
under international law the wrong was done to the state, not to the individual who
was harmed. The practice by states of reacting to such wrongs was described as ‘the
diplomatic protection’ of nationals or aliens abroad, and was usually associated
with the protection of foreign property rights. The individual beneficiary of such
claims had no legal entitlement, and a government could ignore or waive the claims
of its nationals. This statist pattern was further reinforced by ideas of nonaccountability
with respect to wrongs inflicted on nations, both internationally and
domestically. The doctrine of sovereign immunity meant that an individual suffering
injury could not initiate any legal action in the courts of either the country
where the harm took place or the country of his or her nationality. Claims of
allegedly injured aliens in Third World settings were sometimes addressed by
claims commissions assessing the merits of particular claims or by a lump sum
settlement the funds of which were then allocated on some basis to the claimants.
This background of international law is highly relevant to the circumstance of
societies in the midst of transitions to democracy. There are three further observations
that are relevant to this inquiry. First, the political reality of such dynamics
reflected the geopolitical and hierarchical structures of the colonial era. These
claims made by governments in the North involved only losses sustained by
Western individuals in Third World settings. There was no reciprocity or equality
given the manner with which investment and property rights were dealt with in
international law. A bit later these claims for compensation involved opposition to
socialist approaches to both private investment and economic development, and
resisted the legal effects, as far as possible, of the rise of economic nationalism in
the decades following WorldWar II. The protection of nationals abroad was not at
all in the spirit of ‘reparations’ (conceived as corrective justice) and reflected an
opposite policy generally associated with protecting foreign investors who had
characteristically been beneficiaries of ‘unjust enrichment’ in a variety of exploitative
center–periphery relations. Ideas of state responsibility were also formulated
with an eye toward fashioning an international law instrument designed for the
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protection of transnational private property interests, especially in the face of
allegedly confiscatory forms of nationalization. Even the most recent formulation
of the law of state responsibility by the International Law Commission treats the
state as the sole subject of wrongs whose victims are its nationals, and fails to
address the existence of rights under international law of the victims if they are
conceived of as individuals or groups. With moves toward neoliberal globalization
since 1990, there has emerged a widespread intergovernmental consensus supportive
of private sector autonomy, which has ended the widespread emphasis on
balancing territorial rights against those of foreign investors in Third World
countries. In this regard, the capitalist ethos has prevailed, at least for the foreseeable
future.
Second, the kind of concerns that have been associated with transitions to
democracy were completely absent from these earlier concerns of international
law with harm sustained by individuals. For one thing, victims within society were
left completely vulnerable to abuse by their own governments due to ideas of
territorial supremacy of sovereign states, and thus the abuses of oppressive government
toward their own citizenries remained outside the legal loop of potential
responsibility. International law was completely silent as to state–society abuses so
long as the victims were nationals.25 The emergence of international human rights,
by way of the Universal Declaration of Human Rights in 1948 and the 1966
Covenants were at first only politically feasible because there were no expectations
of legal implementation, much less remedies for victims seeking reparations. The
majority of governments were authoritarian, fully dedicated to traditional notions
of sovereign rights, and would have opposed a legal structure that had explicit
ambitions associated with implementation of individual rights. It is here where the
emergence of transnational civil society actors changed the political equation,
creating pressures to promote degrees of implementation for human rights that
went far beyond what had been anticipated at intergovernmental levels.26
Third, since international law failed to protect the human rights of individuals as
a matter of law until after World War II, there was little pressure on national legal
procedures to do so. But in more than a half century since the adoption of the
Universal Declaration of Human Rights there has been an extraordinary set of
regional and global developments enhancing the position of the individual as the
formal holder or subject of rights.27 What is important here is less the exceptional
international initiative on behalf of the victims of human rights abuse, than the
influence on the erosion of sovereign exemptions from accountability in domestic
legal arenas.28 Here the indirect impact of the human rights movement has been
strongly felt. It includes the empowerment of civil society actors, creating intense
perceptions of injustices endured by individuals, expectations of some sort of
remedial process, and the importance of taking official steps toward corrective
justice by a government in the struggle to renew an atmosphere of political
legitimacy. This is the case with respect to its own citizens by means of a signal
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of the repudiation in the past and also to aid efforts to acquire or reacquire
legitimacy within international society.29 In effect, some of the traditional veils of
sovereignty are lifted to facilitate transition, but this is overwhelmingly disguised
directly by the adoption of a self-interested national political and moral discourse.
But what seems national, even nationalistic, is undoubtedly influenced by varying
degrees by what has been going on internationally, transnationally, and in other
kindred states. What is most evident, particularly in Latin America, which provided
the main experimental frontier, was the degree to which justice for victims
was complementary to what often from the outside appeared to be a more strident
insistence, effectively promoted by civil society actors, on combating what came to
be described as ‘the culture of impunity’ toward past wrongdoing by leaders.
More properly considered, this effort to impose accountability on leaders was
integral to restoring the dignity of victims, constituting a direct repudiation of
the past, and was thus an aspect of rendering justice to the victims, however
retrospectively.30 There is also evidence of a mimetic element in which national
dialogues listen to one another, while adapting to their own particularities, building
a trend that establishes a new pattern of expectations about justice in transitional
circumstances. Such a drive for corrective justice was tempered by resource
constraints and by the search for normalcy or social peace, tending to produce
compromise approaches, especially encouraging an approach to feasible levels of
‘satisfaction’ for victims by reliance on truth and reconciliation processes adapted
to the particularities of a given country. The end result is an acknowledgment of the
past, but without great efforts either to punish perpetrators or to compensate
victims. Symbolic forms of redress prevail, with both corrective and deterrent
goals.
Such a historical process of innovative practice is somewhat puzzling from
an interpretative perspective. Whether we call such patterns ‘law’ or ‘international
law’ is a matter of the jurisprudential outlook, either positivist or constructivist. It
is also a question of what might be called the politics and epistemology of law.
A positivist approach would not regard the existing rules of international law as
sufficiently clarifying as to permissible behavior to qualify fully as law. A constructivist
jurisprudence attributes to the interpreters of law, both judges and scholars, a
dynamic role in imparting authoritative meaning, and proceeds from the belief
that legal standards cannot be objectified by language and strict canons of interpretation.
I favor such an acknowledgment of the uncertainty of law on the books
as a means to encourage those with discretion to interpret, apply, and enforce the
law to act responsibly, which I regard as meaning that ambiguities be resolved by
opting for morally guided outcomes to decision-making. Of course, discretion is
not unlimited, but confined by rules of reason that identify the boundaries of
interpretative reasonableness and thus accord with the idea that those interpreting
the law are not free to give expression to private ideas of morality and political
prudence. Legality as a clarifying condition is left in abeyance until patterns of
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expectations are shaped by interpretative trends and practice.31 Such a prism of
evaluation would seek to relate law to widely endorsed expectations about behavior
that exist in society, but would not ‘legalize’ moral sentiments that lacked such
backing, however appealing, by pretending that these sentiments qualified as ‘law’.
From such a perspective, then, there is a greater relevance for international legal
obligations in relation to reparations practice, and wider issues of corrective or
remedial justice, than would seem to derive from a strictly positivist jurisprudence.
The normative revolution that seemed to get underway in the 1990s had a lawmaking
potential if expectations of legality are created by influential institutional
and societal actors. Such expectations would acknowledge as valid specific claims
and demands for justice, and thereby set precedents that shape perceptions as to
the evolving character of ‘the law’. If victims’ rights become established legally,
expectations of participants alter in circumstances of future victimization.
4. Some Limiting Conditions
.........................................................................................................................................................................................
Reparations, if conceived as central to corrective justice, pose difficulties from the
perspective of international law, but these are encountered in analogous form in
transitional justice settings. Even more than efforts to impose individual accountability,
a reliance on reparations, especially as a means to address the various
dimensions of harm endured by victims, is inevitably to be context-driven.32
And because context is so decisive, the guidance functions of international law
tend to be minimal beyond affirming the existence of an underlying obligation as a
generality. As the 2004 Advisory Opinion on the legal status of the Israeli security
wall clearly reaffirmed, there does exist in international law a well-established
entitlement for the victim of legal wrongs to appropriate reparations. But between
the affirmation of the legal right/duty and its satisfaction there exists a huge
contextual gap. In this instance, Israel, backed by the US government, immediately
repudiated theWorld Court decision, and the prospects of compliance are nil. The
international legal standard is authoritative and context-free, but its implementation
is context-dependent.
Several dimensions of this unavoidable contextuality can be identified, but such
a reality also pertains at least as much to reparations within national settings, where
a wide measure of prosecutorial discretion has been an attribute of efforts to bring
justice to perpetrators and victims in transitional situations. So what is set forth as
applicable in international contexts is also relevant with some adjustments to
national contexts.
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Unevenness of Material circumstances
To the extent that reparations attempt to compensate victims for losses endured,
some assessment of an ability to pay needs to be made. This assessment should take
account, as well, of the extent of victimization, and whether certain forms of
vicitimization need to be excluded from the reparations program. But in the end,
the question of fiscal capabilities at the disposal of the perpetrators, or their
successors, is crucial. Of course, this is true, as well, for prosecutorial efforts to
impose accountability on perpetrators, which also reflects the unevenness of
national capacities to sustain the ‘shock’ of prosecutions. Iraq after the Gulf War,
with extensive oil revenues, and South Africa, with an impoverished population,
are at opposite ends of the spectrum in two respects: Iraq was an instance of
reparations doubling as sanctions, whereas in South Africa any attempt to provide
monetary reparations would involve a massive diversion from the priorities of the
new leadership to promote economic growth and address the challenge of massive
poverty.
The case of South Africa is significant for this inquiry.33 The new political order
had repudiated its criminal past mainly by way of a truth and reconciliation
process. It was deeply committed to the improvement of the material circumstances
of an extremely poor majority black population. Of course, the new leadership
could have taken greater account of the high degree of victimization, as well as the
unjust enrichment of the white minority, by combining constitutionalism with a
program for the redistribution of wealth based on past injustice. To have done so,
however, would likely have doomed the political miracle of a bloodless transition
fromapartheid, and might have led to prolonged civil strife. The role of reparations
in transitions to democracy is especially complicated, taking into consideration the
entrenched interests of those associated to varying degrees with the old order,
seeking to avoid overtaxing available capabilities to ensure the success of the newly
emerging order, and yet providing some needs-based relief to those who suffered
incapacitating harms due to prior wrongdoing. As well, in the setting of many
African countries that are extremely poor, it seems unrealistic because of resource
constraints to impose corrective burdens of a monetary character.34 This is especially
so for national settings where prolonged civil strife has victimized many, if
not all, living in the society; many severely, if massive atrocities were committed on
a large scale. Normally more appropriate would be symbolic measures of acknowledgment
(via truth and reconciliation) along with a needs-based conception of
reparations that tries, at least, to enable those who have been disabled, or find
themselves in acutely vulnerable circumstances, to be given the means by which to
restore a modicum of dignity to their lives.35
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Remoteness in Time
Because some claims for redress of grievances arise from events that seem in the
remote past, and their redress is of a magnitude that would be disruptive to present
social and economic arrangements, there is a vigorous resistance to material forms
of compensation.36 It is partly a matter of responsibility, the unwillingness of most
members of a present generation to believe that they owe obligations to the
ancestors of claimants. It is partly a matter of changed mores, a sense that ‘injustice’
needs to be measured within the historical setting of the contested behavior. It is
partly a matter of scale and impact, the realization that restoring the rights of
victims would be enormously expensive and subversive of currently vested property
interests. And it is partly a refusal to treat those in the present as truly
vicitimized by occurrences that took place long ago. The reality is complicated,
as old wounds often have not healed despite the passage of many generations.
At the same time, remoteness has not altogether stymied efforts to obtain redress
in the form of reparations under certain conditions. The exemplary case is the
pursuit of Swiss bank deposits by Holocaust survivors and their heirs, as well as
claims on behalf of those who had been compelled to do forced labor in Nazi times.
Swiss banks agreed to pay survivors $1.25 billion, and the German government
agreed to pay compensation for slave labor.37 Related efforts produced agreements
with France to compensate for stolen assets during the Vichy period, ‘truth’ commissions
have been set up in as many as twenty-three countries that are continuing
to assess claims relating to looted works of art and unpaid insurance proceeds owed
to relatives ofHolocaust victims. At the same time, beneficiaries are disappointed by
the level of compensation received, and more than this, distressed by the monetization
of their suffering that can never be compensated. When one survivor of
Auschwitz, Roman Kent, was asked whether he was happy about the results, his
reply was typical: ‘Why did it take the German nation 60 years to engage the morals
of the most brutal form of death, death through work?’38 The pursuit of these claims
on behalf of Holocaust victims has produced mixed assessments fromobservers, but
the main relevant point is that the process has been primarily driven by moral and
political pressures,with law playing a facilitative role, although lawyers have played a
rather controversial role by siphoning off a considerable proportion of negotiated
settlements as legal fees.39 In a technical sense, the recovery of wrongfully taken
property is an instance of reparations, but in its more unusual mode of restitution
rather than as a means of providing compensation for injuries sustained.
In some respects, the relative success of Holocaust claimants has stimulated
other categories of remote victims to be more assertive about seeking redress,
although not necessarily in the form of reparations. To begin with, Asian victims
of imperial Japan mounted pressures on behalf of survivors who had been engaged
in forced labor, as did representatives of ‘comfort women’. Asian claimants were
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able to take advantage of national laws in the USA that had been drafted in
response to pressures associated with the Holocaust, although in the end were
unable to proceed as potential claims had been waived in the peace treaty concluded
with Japan, an exemption from responsibility that the US State Department
continues to support in litigation brought before American courts. Note here that
the obligations to compensate written into American law do not pretend to be
‘international legal obligations’, but are instances of discretionary national legislation
that results from moral appeals and political leverage.
Yet remoteness has not inhibited certain categories of claims for reparative
justice, especially those associated with indigenous peoples and the institutions
of slavery and slave trading. These claims, building credibility in the wake of efforts
on behalf of Holocaust survivors, gained unprecedented visibility in the atmosphere
of the 1990s.40 To the extent that symbolic reparations were pursued there
were positive results in the form of acknowledgments, apologies, and media
attentions to past injustices.
Remoteness definitely limited the capacity of such claimants to implement the
very broad legal imperative to give victims remedies for harms endured, but it did
not formally preclude relief. There was no statute of limitations applicable to bar
claims. Those with limited claims and a small constituency, most notably Japanese-
Americans who had suffered enforced detention inWorldWar II, were recipients of
nominal compensation payments.41 These payments were important to the victims
as much, if not more so, as acknowledgments of past injustice, that is, as symbolic
reparations in the sense of acknowledgment and apology even though a nominal
payment was involved. In contrast, descendants of slaves, although receiving some
satisfaction, including a legal affirmation in authoritative global settings that
slavery constituted a crime against humanity, have not been able to gain satisfaction
in the form of compensation.42 Unlike the case of Japanese-Americans where
compensation was not a huge financial tax on the present and unlike Holocaust
survivors who had formal American pressures behind them (which appeared to
push the Swiss banks and others into accommodating gestures), indigenous
peoples and descendants of slaves found themselves without political leverage,
despite generating significant moral pressures arising from the documentation of
horrendous past atrocities. Beyond this, redress in these latter instances would have
been economically and politically disruptive, imposing a major and politically
unacceptable burden on present public revenue flows.
Absence of Individuation
The magnitude of the harm done, especially when directed at a large class of
victims, makes it impractical to evaluate individual claims on a case-by-case
494 richard falk
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basis in most instances, and therefore is not consistent with the international law
approach based on the individual that is embedded in human rights.43 It has been
historically possible under certain circumstances to create claims commissions to
deal with efforts to achieve restitution of property and compensation arrangements,
as was done in relation to the Iranian Revolution and the first Gulf War. In
both instances, there were large pools of resources available that belonged to the
accused governments, as well as antagonistic international attitudes toward the
government that was being charged with improper taking of private property
rights. And redress for claimants did not impose any burdens on the states that
established the reparations mechanism, which distinguishes the situation from
those where payment of reparations would be imposed from within. That is, the
geopolitical climate was supportive of efforts to implement reparations on an
individuated basis in Iran and Iraq. But these instances are the exception rather
than the rule. No such redress occurs when the accused government is victorious or
beyond the reach of the international community, as has been the case in relation
to the USA, considering the wrongs associated with its conduct of wars in Vietnam,
Panama, Afghanistan, and Iraq in the course of the last forty years, as well as in
relation to both world wars of the twentieth century.
More common are those many circumstances in a wide range of countries
where an oppressive past has been finally repudiated by a new political leadership,
but not necessarily in a conclusive fashion. Beyond this, there are neither the
administrative nor financial capabilities to process claims on an individual basis,
particularly if the abuses do not involve property rights that can be established by
the claimants. In such circumstances, the dynamic of redress has tended to
emphasize accountability for the main perpetrators of atrocities and a collective
truth-telling procedure for the community of victims, especially reliance on truth
and reconciliation commissions.44 Reparations are certainly not excluded, but
they have not been consistently part of the process, and rarely reach the majority
of victims except in pitifully small amounts. In Latin America several countries
have implemented significant reparations programs, including Argentina, Chile,
and Brazil, others have made efforts that are more than token. Reparations have
received less attention than efforts at criminalizing the perpetrators of gross
wrongs, but have been at least as significant an aspect of attempts at overall
rectification.
Generality of Obligation
Any attempt to evolve a law-centered approach to reparations must accept the
frequent inability to specify the level of responsibility with the kind of precision
that makes it more likely that equal circumstances will be treated equally. Of
reparations, international law, and global justice 495
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course, this difficulty with reparations should not be exaggerated, and it should be
appreciated that the more demanding rules of evidence and standards of persuasion
that apply to criminal prosecution make problems of ascertaining responsibility
and entitlement with respect to reparations somewhat manageable. The
provision of reparations, however constructed, usually must depend in the end
on a rule of reason, which accords those who administer the program, whether
judicially or administratively, wide discretionary authority. Only where the idea of
full compensation for losses is sustained, as in Kuwait after the Gulf War, is there
operational guidance for those making decisions. Or where uniform payments are
decreed, which overlook the unevenness of harm sustained, as with compensation
accorded to Japanese-Americans detained during World War II, is specificity
attained. In other settings, the legal mandate to award reparations operates in a
manner similar to other areas of the law where the specific and the general are only
loosely connected, as when such standards as ‘due process’ or ‘the reasonable
person’ are used to judge legal responsibility in particular circumstances. Where
the number of claimants is very large, there is a greater disposition to rely on
administrative procedures that compensate victims by category of harm, and
usually with no pretension that the level of reparations corresponds to the level
of harm. Again, the human rights approach based on individual rights challenges
this flexibility.
Extreme Selectivity
To the extent that reparation claims are given support in national legal systems,
there are present critical geopolitical factors that inhibit any kind of standardization
of treatment. It is one thing to initiate litigation to give some remedial relief
to Holocaust victims, but it would be inconceivable that comparable relief, even of
a symbolic character, were to be accorded to Indochinese victims of the Vietnam
War or to Palestinian victims of Israeli abuses of international human rights and
international humanitarian law during the period of extended occupation of the
West Bank and Gaza. The victims require political leverage, and the target of
remedial abuse must be discredited or defeated for such remedies to exist. Whenever
geopolitical factors become relevant to the application of legal standards, the
issue of legitimacy casts a shadow over discussions of legality, especially because
selective implementation means that equals cannot be and are not treated as equals.
Should such a realization be allowed to taint those applications of law that can be
explained by reference to geopolitical patterns of influence?45
496 richard falk
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5. What International Law Can Do
.........................................................................................................................................................................................
So far the emphasis has been placed on the limitations of international law in
relation to the imposition of obligations to provide reparations to victims of past
injustices and deprivations of rights, especially in the setting of transitions to
democracy. But international law also has contributed to a generalized atmosphere
of support, a reparations ethos, for compensating victims as part of its overall
dedication to global justice and the enforcement of claims, and thus lends support
to the domestic willingness to provide reparations when contextual factors are
favorable. Beyond this, international law is part of the normative context, giving a
higher level of credence to victims and their supporters who insist on reparations as
part of a new political regime of ‘fairness’. Such a change in the climate of
credibility with respect to claims of reparations for past wrongs is perhaps most
evident in the greater seriousness accorded to the grievances associated with the
descendants of slaves and the representatives of indigenous peoples. These claims
had previously been hardly ever mentioned in influential settings, being treated as
too frivolous to warrant attention, much less action.
International law also helps by clarifying those forms of governmental abuse that
constitute international crimes, and therefore cannot be shielded from legal accountability.
46 Certainly, the establishment of the International Criminal Court
(ICC) is a step in the direction of accountability for perpetrators, and by its
provisions of funds for reparations of victims, there is an agreed-upon framework
that should exert an indirect influence upon those transitions to democracy that
occur against an established background of gross abuse and international criminality.
That is, by linking accountability for perpetrators to compensation for
victims there is encoded in international law a conception of fairness and rectification
of past harm that includes victims.47 This is a major conceptual step
forward, with policy consequences, although disappointments also arise to the
extent that compensatory steps are either trivial in relation to the quantum of harm
endured or are never implemented beyond nominal awards.48 Perhaps the most
important impact of this level of generalized obligation is to influence the approach
of national legal systems, which in any event have the most opportunity to actualize
international standards, including those associated with human rights, in relation
to the persons who endured the wrongs or their representatives. To the extent that
national programs of reparations are enacted, there are expectations generated that
a transition to democracy is incomplete if it does not include efforts to address as
well as possible, given contextual constraints, the harms endured by victims of a
prior oppressive regime. At the same time, there exists a margin of appreciation
that allows a given national government a wide range of discretion in determining
what it is reasonable to appropriate for the satisfaction of past claimants.
reparations, international law, and global justice 497
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To the extent corrective justice is taken into account, then the pressure to
overcome the culture of impunity relating to transitions to democracy is of at
least symbolic benefit to the victims, as well as to their families and friends. The
difficulties of providing material compensation are offset to some extent by
publicly and officially acknowledging past abuses, documenting the record of
wrongdoing associated with a prior regime, discrediting perpetrators while expressing
solidarity with a community of victims, issuing apologies, and challenging
self-serving grants of amnesty. In this process, not only is the harm to those most
victimized repudiated as wrong, but the general public is educated about the limits
on permissible behavior by governments.
Given the degree to which transitions to democracy are carried on within
national legal frameworks, where the contours of arrangements are determined
exclusively by reference to domestic law, the role of international law is inherently
limited. Of course, to the extent that international human rights and criminal law
are internalized, they push the national approach, in circumstances of transitional
justice, in the direction of providing ‘just compensation’ for victims as determined
contextually. Beyond this, international law could impose obligations on states
and other actors to provide financial capabilities via the ICC, and elsewhere, to
enable those countries with limited resources and very widespread claims of
victimization to receive special credits and loans for the purpose of satisfying
certain categories of victimization. Whether such an undertaking could fit
within the mandate of existing international financial institutions such as the
World Bank or IMF is doubtful, but a special commission could be created within
the UN system to receive voluntary contributions earmarked for such purposes.
The record to date is not encouraging if the UN Voluntary Fund for Victims of
Torture established by GA Res. 36/151 on December 16, 1981, is taken as indicative.
The Fund receives contributions from governments, nongovernmental organizations,
and individuals, but has managed to raise only $54 million during its entire
course since coming into existence in 1983. Another possibility, undoubtedly
remote, would be to affix a ‘Tobin Tax’ on international currency transactions or
on activities that pollute the commons, such as commercial jet international
travel, thereby providing a pool of funds to be used to bolster the capabilities to
realize the goals of corrective justice in transitional societies and other circumstances
where international victimization has occurred. This kind of mechanism
could also be used to address categories of claimants on a group basis, thereby
circumventing the extraordinary bureaucratic burdens associated with judicial and
administrative approaches that are based on assessing the merits of individualized
claims.
498 richard falk
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Notes
1. For review of this dynamic see Falk, ‘Reviving the 1990s Trend toward Transnational
Justice: Innovations and Institutions’, Journal of Human Development 3 (2) (2002):
169–97.
2. See Falk, ‘Assessing the Pinochet Legislation: Whither Universal Jurisdiction?’ and the
reply by Pablo de Greiff, ‘Universal Jurisdiction and Transitions to Democracy’, in
Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under
International Law, Stephen Macedo, ed. (Philadelphia, PA: University of Pennsylvania
Press, 2004).
3. The conclusion of the Independent International Commission on Kosovo was that the
action was ‘legitimate’ (as it prevented an imminent instance of ethnic cleansing), but
‘illegal’ (as it lacked a required UNSC mandate). See the report of the commission, The
Kosovo Report: Conflict, International Response, Lessons Learned (Oxford: Oxford University
Press, 2000); along similar lines, but with a more comprehensive approach, see
the report of the International Commission on Intervention and State Sovereignty, The
Responsibility to Protect (Ottawa, Canada: International Development Research Centre,
2001).
4. Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices
(New York: Norton, 2000), ix.
5. In this collection, de Greiff defends a nuanced position with respect to the issue of the
relationship between reparations and international law: the main point is that what
international law has to say about this issue is still mostly geared to the case-by-case
resolution of claims, and that both this and the (related) adoption of restitutio in
integrum as the criterion of justice in reparations, make the guidance provided by
international law less than clear when the task is to create a massive program. See de
Greiff, ‘Justice and Reparations’ (Chapter 12, this volume).
6. For a consideration of this dynamic of distraction see Falk, The Great Terror War
(Northampton, MA: Olive Branch Press, 2003); also, Falk, ‘Reviving Global Civil Society
after September 11’, in Traditions, Values, and Humanitarian Action, Kevin M. Cahill, ed.
(Fordham, NY: Fordham University Press, 2003), 344–67.
7. Even in the aftermath of the AfghanistanWar and the IraqWar there does not seem to be
a disposition to set up a procedure to provide reparations for the numerous victims of
these brutal regimes. Unlike after World War II or the Gulf War, the main goals
of the occupying powers, aside from selective criminal prosecution of the leaders of
the former regime, seem to involve the establishment of stability and a sense of
normalcy.
8. Of course, there are a series of affirmations of a legal obligation to compensate victims of
abuses that can be found in such influential documents as Article 8 of the Universal
Declaration of Human Rights, Articles 2(3), 9(5), 14 of the International Covenant on
Civil and Political Rights, Article 14 of the UN Convention against Torture, and Article 6
of the International Convention on the Elimination of All Forms of Racial Discrimination,
as well as the elaborate consideration of victims’ rights in the Statute of the
International Criminal Court. See also Theo van Boven, ‘Basic Principles and Guidelines’,
E/CN.4/2000/62, January 18, 2000. It is to be noted that most of the assertions of
this right to compensation situate the remedy within national legal systems. With the
reparations, international law, and global justice 499
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9. exception of the ICC approach there is no attempt at an international remedial option
made available to a victim even in the event that there is no meaningful national
remedy. The Basic Principles document, in Principle 12, affirms the victim’s right to
pursue a remedy in all legal arenas ‘under existing domestic laws as well as under
international law’, but without any clarification as to how such rights can be upheld in
concrete circumstances. States are obliged to ‘[m]ake available all appropriate diplomatic
and legal means to ensure that victims exercise their rights to a remedy and
reparation for violations of international human rights or humanitarian law’.
9. Case concerning the Factory at Chorzow, 1927 P.C.I.J. (Ser. A) No. 9, at 29; in explaining
the bearing of international law I have adapted the framework clearly set forth by Max
du Plessis, ‘Historical Injustice and International Law: An Exploratory Discussion of
Reparation for Slavery’, Human Rights Quarterly 25 (2003): 624–59.
10. ‘On the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territories’, ICJ Reports, July 9, 2004, para. 152.
11. Mavrommatis Palestine Concessions Case (Greece v. UK), 1924 P.C.I.J. Reports (Ser. A)
No. 2, at 12; for fuller account see Ian Brownlie, Principles of Public International Law,
3rd edn. (New York: Oxford University Press, 1982).
12. For the definitive account of the ILC treatment of reparations see James Crawford,
The International Law Commission’s Articles on State Responsibility: Introduction, Text
and Commentaries (Cambridge: Cambridge University Press, 2002); for useful
assessment see Dinah Shelton, ‘Righting Wrongs: Reparations in the Articles on State
Responsibilities’, American Journal of International Law 96 (4) (2002): 833–56. Professor
Shelton asserts that these draft articles, that is, not yet in the form of an international
convention, combine persuasively the descriptive function of ‘codification’ with the
prescriptive function of ‘progressive development’ in accord with the mission of
the International Law Commission. She also confirms the influence of this statement
of the law despite its lack of a formally obligatory character, including extensive reliance
by the International Court of Justice in its decisions, and by parties in their submissions.
13. The Temple Case, 1962, ICJ, 6.
14. See ‘On the Legal Consequences’, para. 152.
15. du Plessis, op. cit., at 631.
16. See especially GA Res. 1803, December 14, 1962, Res. 3171, December 17, 1973; also
Declaration on the Right to Development, December 4, 1986.
17. For a careful study of reparations in the Inter-American Human Rights System see
Carrillo (Chapter 14, this volume).
18. Which is one of the conclusions at which de Greiff, Segovia, and others in this volume
arrive.
19. For a sense of the professional viewpoint on reparations associated with international
law practice see Shelton, op. cit. A typical view of the Versailles approach,
primarily because the reparations features were regarded as symbolically humiliating
and substantively burdensome for Germany and Germans, and thereby leading to a
backlash, is the following: ‘The Treaty of Versailles . . . represented a peace without
justice. The desire of the FirstWorldWar victors to seek revenge against the vanquished
is widely believed to have contributed to conditions which led to the Second World
War.’ Stuart Rees, Passion for Peace (Sydney: New South Wales University Press, 2003),
21. Of course, it would be simplistic to explain the rise of Hitler by reference only to an
extremist reaction to Versailles. See Hannah Arendt, The Origins of Totalitarianism
500 richard falk
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(London: Allen and Unwin, 1951). For a recent inquiry into the origins of ‘radical evil’
as a political reality see Ira Katznelson, Desolation and Enlightenment: Political Knowledge
After Total War, Totalitarianism, and The Holocaust (New York: Columbia University
Press, 2003).
20. The issue of punishment and responsibility was individualized after World War II, as
exemplified by the Nuremberg trials. See the instructive account in Gary Jonathan Bass,
Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, NJ:
Princeton University Press, 2000), esp. 14–205. For the international law foundations
of the Nuremberg approach see Richard Falk, Gabriel Kolko, and Robert Jay Lifton,
eds., Crimes of War (New York: Random House, 1971), 73–176. The lesson of Versailles
was reinforced by geopolitical considerations that regarded the reconstruction of
Germany (and Japan) as an essential element in the containment of the Soviet Union
as the cold war unfolded and came to dominate the political imagination of those
shaping the policies of leading Western states in the 1940s and 1950s.
21. See the study of the UNCC by van Houtte et al. (Chapter 9, this volume); and David
Bederman, ‘The UN Compensation Commission and the Tradition of International
Claims Assessment’, NYU Journal of International Law and Politics 27 (1) (1998).
22. For a range of critical assessments of sanctions imposed on Iraq see Anthony Arnove,
ed., Iraq Under Siege: The Deadly Impact of Sanctions and War (Cambridge, MA: South
End Press, 2000); a broader perspective is to be found in David Cortright and George
A. Lopez, eds., The Sanctions Decade: Assessing UN Strategies in the 1990s (Boulder, CO:
Lynne Rienner, 2000), esp. 37–61. Also, Falk, ‘Iraq, the United States, and International
Law: Beyond the Sanctions’, in Iraq: The Human Cost of History, Tareq Ismail and
William W. Haddad, eds. (London: Pluto Press, 2004).
23. See Michael J. Bazyler, ‘Nuremberg in America: Litigating the Holocaust in United
States Courts’, University of Richmond Law Review 34 (1) (2000). For a general study see
Gregg J. Richman, Swiss Banks and Jewish Souls (New Brunswick, NJ: Transaction, 1999).
24. See Richard B. Lillich, International Claims: Their Adjudication by National Commissions
(Syracuse, NY: Syracuse University Press, 1962) on the nationality of claims, and
their discretionary prosecution, as well as international practice; discussed earlier in
this chapter.
25. The role of sovereignty in creating sanctuaries for state wrongs is impressively depicted
in Ken Booth, ‘Human Wrongs and International Relations’, International Affairs 71 (1)
(1993): 103–26.
26. This argument is set forth in greater detail in Falk, ‘The Challenges of Humane Governance’,
in Concepts and Strategies in InternationalHuman Rights, George J. Andreopoulos,
ed. (New York: Peter Lang, 2002), 21–50; for scholarly treatment that fails to address this
hypothesis of nonimplementation see Johannes Morsink, The Universal Declaration of
Human Rights: Origins, Drafting, Intent (Philadelphia, PA: University of Pennsylvania
Press, 1999).
27. For various aspects of this evolution see Andreopoulos, op. cit.; also Falk, Human
Rights Horizons: The Prospect of Justice in a Globalizing World (New York: Routledge,
2000); for theoretical inquiry into the expanding status of individual rights see Jack
Donnelly, Universal Human Rights: In Theory & Practice (Ithaca, NY: Cornell University
Press, 2003); the most comprehensive assessment of this trend can be found in
Henry J. Steiner and Philip Alston, eds., International Human Rights in Context, 2nd
edn. (New York: Oxford University Press, 2000).
reparations, international law, and global justice 501
Annex 28
28. Donnelly makes this point strongly.
29. For a pioneering study of legitimacy see Thomas M. Franck, The Power of Legitimacy
among Nations (New York: Oxford University Press, 1990); further elaborated and
explored in impressive detail in Thomas M. Franck, Fairness in International Law
and Institutions (New York: Oxford University Press, 1995). Despite the sweep of
coverage in this latter study, Franck gives no attention whatsoever to issues of corrective
justice, and limits his relevant coverage to issues of ‘fairness’ associated with alien
property claims (453–73).
30. Of course, from another perspective, Germany after 1945 could be described in a similar
manner, but Germany was taking steps in the aftermath of a devastating military and
political defeat, and in the midst of a foreign occupation, to restore its standing as a
legitimate state. It seems like an antecedent case to that of victim-oriented reparations
as conferred by Latin American legal initiatives. See the studies on German reparations
by Ariel Colonomos and Andrea Armstrong (Chapter 10, this volume) and John
Authers (Chapter 11, this volume).
31. Although not so formulated, this jurisprudence derives from the work of the New
Haven School, especiallyMyresMcDougal, Harold Lasswell, and Michael Reisman. For
the most comprehensive overview see McDougal and Lasswell, Jurisprudence for a Free
Society: Studies in Law, Science and Policy (New Haven, CT: Yale University Press, 1992).
A constructivist account of political and conceptual reality is most explicitly set forth
by Alexander Wendt in Social Theory of International Politics (Cambridge: Cambridge
University Press, 1999).
32. Reparations can also be conceived, in part, as punitive, or at least directed toward
burdening perpetrators with obligations. For insightful discussion of some of these
issues see Martha Minow, Between Vengeance and Forgiveness: Facing History After
Genocide and Mass Violence (Boston, MA: Beacon, 1998).
33. See the study of South African reparations by Colvin (Chapter 5, this volume).
34. For one such example, see the study of reparations in Malawi by Cammack (Chapter 6,
this volume).
35. A harm-based conception is more in accord with ideas of corrective justice, treating the
victim as an autonomous subject entitled to compensation, at least to the extent
otherwise feasible.
36. The issue of intertemporality is carefully considered by du Plessis, op. cit., in relation to
efforts to obtain reparations on behalf of descendants of slaves. Interesting issues are
posed as to the nature of victimization, and whether the grant of reparations, even in
symbolic amounts, would not heal the inherited wounds of slavery and past forms of
racial persecution and discrimination.
37. See study by Authers (Chapter 11, this volume).
38. Quoted in ‘Satisfaction not Guaranteed’, a review of books on the Holocaust dynamic
by John Authers, Financial Times, August 23, 2003.
39. Among the treatments of this process see Stuart Eizenstat, Imperfect Justice (New York:
Public Affairs Press, 2003); Michael Bazyler, Holocaust Justice (New York: New York
University Press, 2003); and for a skeptical account see Norman Finkelstein, The
Holocaust Industry (London: Verso, 2000).
40. These claims categories are included in Barkan, op. cit., and du Plessis, op. cit.; see also
Falk, ‘Reviving the 1990s Trend toward Transnational Justice’, op. cit.
502 richard falk
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41. See study on reparations for Japanese-Americans by Yamamoto and Ebesugawa (Chapter
7, this volume).
42. For instance, in the declaration adopted at the 2001 Durban UN Conference on Racism
and Development. It is notable that the US government withdrew its delegation from
the conference, partly to protest criticism of Israel and partly because of reparation
claims advanced in relation to the condemnation of slavery. On this issue generally see
du Plessis, op. cit., for extensive treatment.
43. de Greiff spells out the possible consequences of a case-by-case approach (Chapter 12,
this volume).
44. For an admirable overview see Priscilla B. Hayner, Unspeakable Truths: Confronting
State Terror and Atrocity (New York: Routledge, 2001).
45. It should be noted that this same selectivity applies in many crucial areas of international
law, including that of humanitarian intervention, regulation of nonproliferation
of weaponry of mass destruction, and enforcement of UN Security Council
resolutions. It is an aspect of the balancing act that conjoins law and power within
any social order, but its influence is more salient and pronounced in relation to global
policy concerns.
46. See a useful overview in Geoffrey Robertson, Crimes Against Humanity: The Struggle for
Global Justice (New York: Norton, 1999).
47. For an analysis of reparations and the ICC see Pablo de Greiff and Marieke Wierda,
‘The Trust Fund for Victims of the International Criminal Court: Between Possibilities
and Constraints’, in Out of the Ashes: Reparation for Victims of Gross and Systematic
Human Rights Violations, Marc Bossuyt, Paul Lemmens, Koen de Feyter, and Stephan
Parmentier, eds. (Antwerp: Intersentia, 2005).
48. Such nominal forms of satisfaction can be worse than nothing to the extent that the
claimant continues to feel the anguish associated with harm while the impression is
spread that reparative justice has been rendered, setting the stage for reconciliation.
reparations, international law, and global justice 503
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Ruth Teitelbaum, “Recent Fact-finding Developments at the International Court of Justice”, 6
Law and Practice of International Courts and Tribunals 119 (2007)
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Christian Tomuschat, “Reparations in Favour of Individual Victims of Gross Violations of
Human Rights and International Humanitarian Law”, in PROMOTING JUSTICE, HUMAN RIGHTS
AND CONFLICT RESOLUTION THROUGH INTERNATIONAL LAW, LIBER AMICORUM LUCIUS
CAFLISCH (M. Kohen ed., 2007)
32
REPARATION IN FAVOUR OF INDIVIDUAL VICTIMS OF
GROSS VIOLATIONS OF HUMAN RIGHTS AND
INTERNATIONAL HUMANITARIAN LAW
Christian Tomuschat*
1 INTRODUCTION
After nearly 16 years of drafting efforts, the UN Commission on Human
Rights adopted the “Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law”
(BPG) on 19 April 2005.1 This was one of the most ambitious projects the
human rights bodies of the United Nations has ever handled and stands
obviously in parallel to the “classic” Articles on Responsibility of States for
internationally wrongful acts (ILC Articles) drawn up by the International
Law Commission (ILC), which were taken note of by the UN General Assembly
in resolution 56/83 of 12 December 2001. It should be pointed out that the
ILC could, to a large extent, rely on a widely settled State practice in many
respects. In contrast, not withstanding the innovative elements, in particular
concerning the right to respond to a breach of an international obligation,
the Commission on Human Rights could not even be sure that the individual
“rights” to a remedy and reparation dealt with in the BPG did actually
exist. Thus, questions remain open as to the legal nature of the BPG, and
it will be the principal objective of this study to examine what legal quality
is attached to the propositions enunciated therein.
* Honorary Professor, Faculty of Law, Humboldt-University of Berlin; Member of the Institut de
Droit international.
1 UN doc. E/CN.4/L.48.13 April 2005. Vote of 40 to none, with thirteen abstentions, among
them Australia, Germany, United States, but also Sudan.
Marcelo G. Kohen (ed.), Promoting Justice, Human Rights and Conflict Resolution through International
Law / La promotion de la justice, des droits de l’homme et du règlement des conflits par le droit
international, Liber Amicorum Lucius Caflisch, pp. 569-590.
© 2007 Koninklijke Brill NV, Leiden.
Printed in The Netherlands.
Annex 30
The concept took form in 1989 when the Sub-Commission on Prevention
of Discrimination and Protection of Minorities2 entrusted Mr. Theo van
Boven with the task of undertaking a study concerning the right to restitution,
compensation and rehabilitation for victims of gross violations of
human rights and fundamental freedoms.3 The rapporteur submitted what he
considered, his final report in 1993.4 In section IX, it contained “Proposed
Basic Principles and Guidelines” on the topic. After an extensive exchange
of views essentially within the Sub-Commission, the Rapporteur eventually
submitted a revised version of the BPG in January 1997.5 The next year, on
the basis of Commission on Human Rights resolution 1998/43,6 a new independent
expert (Mr. M. Cherif Bassiouni) was appointed in order to review
and complete the work carried out by Van Boven. The drafting process then
evolved in two stages. In his first report,7 the new rapporteur gave an outline
of the orientations and necessities of the project as visualized by him.
He still refrained from presenting a body of rules, being under the impression
that he needed substantial input from all the actors involved before
being able to set out any proposals. His final report, containing a revised
version of the Basic Principles and Guidelines (Bassiouni draft), was issued
in January 2000.8 It was a far more comprehensive document than the drafts
provided by Van Boven, above all, due to the fact that Bassiouni integrated
large parts of the work done by Mr. Louis Joinet on the topic of “Question
of the impunity of perpetrators of human rights violations (civil and political)”
9 in his own text. The importance of this document was clearly recognized
by the Commission on Human Rights. By two resolutions,10 it called
for the holding of special consultative meetings in which all interested governments,
intergovernmental organizations and non-governmental organizations
in consultative status with ECOSOC could participate. The first of
these meetings was held on 30 September and 1 October 2002,11 the second
one on 20, 21 and 23 October 200312 and the last one from 29 September
to 1 October 2004,13 all of them in Geneva. These consultative meetings
2 Today: Sub-Commission for the Promotion and Protection of Human Rights.
3 Res. 1989/13, 31 August 1989.
4 UN doc. E/CN.4/Sub.2/1993/8, 2 July 1993.
5 Note annexed to UN doc. E/CN.4/1997/104, 16 January 1997.
6 17 April 1998.
7 E/CN.4/1999/65, 8 February 1999.
8 UN doc. E/CN.4/2000/62, 18 January 2000.
9 Final report: UN doc. E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997.
10 Res. 2000/41, 20 April 2000, para. 3; 2002/44, 23 April 2002, para. 3.
11 Report: E/CN.4/2003/63, 27 December 2002.
12 Report: E/CN.4/2004/57, 10 November 2003.
13 Report: E/CN.4/2005/59, 21 December 2004.
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permitted an in-depth study of all the difficult issues related to the draft
instrument. It was on the basis of these fertile antecedents that eventually
the text, as it stood after the third consultative meeting,14 was adopted.
2 THE LEGAL SIGNIFICANCE OF THE TEXT
It is obvious at first glance that the adoption of the BPG could not, as such,
produce binding international law. The Commission on Human Rights
enjoys no decision-making power. But the legal significance of the text
could be greatly increased by contending that all of the 27 Principles could
be characterized as codifying positive international law; the source of which
was to be found either in treaty stipulations or in rules of customary law.
This was and is one of the controversial features of the BPG. The Preamble
states (para. 7) that the BPG “do not entail new international or domestic
legal obligations but identify mechanisms, modalities, procedures and methods
for the implementation of existing legal obligations”. However, this affirmation
is neither true and nor does it provide a conclusive answer to the
question raised. It is not true because the BPG are not limited to procedural
issues, setting forth, instead, propositions which, in their great majority, are
of a genuinely substantive nature. On the other hand, an attempt had been
made to make clear, through the choice of language, the Principles that
were deemed to be mandatory and those, by contrast, that had to be characterized
as being purely recommendatory.15 Progressively, in the course of
the many rounds of the deliberation process, many formulations were
changed from “shall” to “should” or other language formulations that replaced
former pretorian-style assertions. In his two drafts, under the heading
of “Forms of reparation”, Van Boven had generally suggested wording
according to which restitution, compensation, rehabilitation as well as satisfaction
and guarantees of non-satisfaction “shall be provided”; Bassiouni
abandoned that position, preferring to use “should be provided”. This formulation
found its consecration in the text as adopted on 18 April 2005.
Principles 18 to 24, which deal with the four categories of reparation recognized
in the BPG, consistently use the phrase: “should be provided”. On
the other hand, in some other places, the former entitlement of the victim
has been replaced by references to unspecified measures of care in favour
of the victims. Thus, while Bassiouni spoke of “Victims’ right to access justice”
(section VIII.) and “Victims’ right to reparation” (section IX.), the text
14 Of 1 October 2004, ibid., Annex 1.
15 Report on the third consultative meeting, supra (note 12), para. 11.
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now reads: “Access to justice” (section VIII.) and “Reparation for harm suffered”
(section IX.). On the whole, only the general title has remained untouched,
focusing on “the right to a remedy and reparation”. However, the many
changes that the text suffered – or by which it has been improved – unequivocally
convey the idea that the drafters, at the last stage the collective
body of the Commission on Human Rights, were not guided by the aim of
drawing up a comprehensive legal framework of the rules governing the
commission of gross violations of human rights and serious breaches of
IHL. Rather, they were aware of the fact that while from a systemic viewpoint,
the BPG constituted a consistent whole, from a legal perspective,
they were nothing more than a patchwork given the many political elements
as accurately reflected in the title: Principles and Guidelines. It is, therefore,
necessary to carefully handle the BPG. Principles and rules of positive international
law stand side by side with propositions of a purely hortatory character.
In the future, the dividing line between the two classes of norms may
be easily blurred if the awareness of these juridical differences is lost or
deliberately brushed aside by activists who could portray the entire set of
the BPG as pertaining to the body of positive international law.
During the drafting process, the question of whether the future instrument
was to cover any violations of human rights and international humanitarian
law (IHL) was raised on many occasions).16 Wisely, however, the
prevailing view withstood the temptation to proceed to an all-inclusive
codification. In general, only the first two sections deal with human rights
law and IHL regarding the (primary) obligation to ensure respect for and
implement the relevant legal rules and principles. In respect of the legal consequences
attached to wrongful conduct, the BPG are confined to “gross”
or “serious” breaches. Indeed, minor violations of human rights standards
occur inevitably on a daily basis. The modalities of their reparation can be
left to the discretion of individual States. Guidance from international
sources is required only where the relevant occurrences have had a disruptive
influence on individual lives or even on the existence of an entire
nation. To underline this limitation, the BPG have resorted to the terms
“gross” violations of human rights and “serious” violations of IHL. Neither
term is a specific term of art.17 However, most observers would easily be
16 Bassiouni was in favour of such a broad approach. For his draft, he chose the title: Basic principles
and guidelines on the right to a remedy and reparation for victims of violations of international
human rights and humanitarian law, confining the suggested propositions to crime
under nternational law only with regard to penal sanctions. See also the report on the second
consultative meeting, supra (note 11), para. 70.
17 We do not agree with the view to the contrary affirmed in the report on the third consultative
meeting. Supra (note 12), para. 12.
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able to agree on the scope ratione materiae of gross violations which
include, as a minimum, all international crimes as well as any situation
which “appear to reveal a consistent pattern of gross and reliably attested
violations of human rights and fundamental freedoms” in accordance with
ECSOC resolution 1503 (XLVIII).18 Under the Geneva Conventions on
humanitarian law, the legal position is more difficult, in that that the notion
of “grave breaches” has been used to identify infringements of particular
seriousness. Apparently, here the intention was to go beyond the realm
delineated in those conventional clauses.
3 CRIMINAL AND CIVIL LAW TOGETHER – THE COMPREHENSIVE CHARACTER
OF THE TEXT
The BPG attempt to regulate all the consequences that may flow from the
commission of grave violations of human rights and IHL, without drawing
any distinctions between criminal law aspects and other aspects which one
might call “civil aspects” inasmuch as they affect the status of individuals
victims of such violations. However, this was certainly not the starting point
of where the journey began. Resolution 1989/13 of the Sub-Commission
confined itself to referring to the rights that may accrue to an individual victim
of gross injustices (right to restitution, compensation and rehabilitation).
It was a limitation which was perfectly in line with the general scope of
competence of the Sub-Commission, which is not a specialized body for
dealing with criminal law matters. Consequently, Van Boven mainly emphasized
the responsibility of States vis-à-vis aggrieved individuals although he
also included some propositions of great relevance regarding penal sanctions.
Thus, he stated that there existed a duty to prosecute perpetrators of
crimes under international law19 and he additionally suggested that universal
jurisdiction should be introduced for such crimes.20 A fuller articulation
of these criminal-law aspects, now clearly set apart from the propositions
describing the relevant civil law regime, can now be found in section III of
the GPG (“Gross violations of international human rights law and serious
violations of international humanitarian law that constitute crimes under
international law”).
18 Of 27 May 1970.
19 BPG, First report, supra (note 3), paras. 2, 5; BPG, Final report, supra (note 4), para. 2.
20 BPG, First report, ibid., para. 12; Final report, para. 5.
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A. Criminal-law aspects
The duty to prosecute
Van Boven had no doubts that with regard to crimes under international law
there existed “a duty to prosecute and punish perpetrators”.21 The same
opinion was echoed by Bassiouni.22 The BPG have softened the rather categorical
formulations employed by the two rapporteurs. Borrowing a formulation
from Art. 7 (2) of the UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, the relevant sentence
(Principle 4, first sentence) now reads:
In cases of gross violations of international human rights law and serious violations
of international humanitarian law constituting crimes under international
law, States have the duty to investigate and, if there is sufficient evidence, the
duty to submit to prosecution the person allegedly responsible for the violations
and, if found guilty, the duty to punish him or her.
This proposition does not differentiate between instances where a treaty
clause provides for the prosecution of alleged offenders, and situations that
are governed only by customary law. Concerning the latter category, one
can certainly conclude that any State is under an obligation to commence
criminal proceedings if, allegedly, crimes of such gravity have been committed
in its territory, bound under international law to ensure peace and
security within its borders.23 But the problems arise as soon as an alleged
offence has been committed abroad, in particular, by non-nationals.
Universal jurisdiction
This second issue is addressed by the BPG in Principle 7. The two rapporteurs
were unanimously of the opinion that universal jurisdiction did indeed
exist for the offences coming within the scope of their projects. This issue
has been distanced from the BPG as it now stands. States have been admonished
to act on the basis of universal jurisdiction “where so provided in an
applicable treaty or under other international law obligations”. Thus, the text
openly acknowledges that no general rule of customary international law
providing for universal jurisdiction regarding each and every case of a
21 See supra (note 18).
22 Final Report, supra (note 7), para. 4.
23 For a more detailed study of the issue see C. Tomuschat, “The Duty to Prosecute International
Crimes Committed by Individuals”, in: H.J. Cremer et al. (eds), Tradition und Weltoffenheit
des Rechts. Festschrift für Helmut Steinberger (Berlin et al., Springer, 2002), pp. 315-349.
574 CHRISTIAN TOMUSCHAT
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crime encompassed by the BPG can be identified. It is not possible, in the
present context, to deal with the complex issue of universal jurisdiction
extensively. However, one of the most enlightening occurrences of the
recent past has been that Belgium repealed its former legislation based on
that principle due to the pressure from the United States.24 Germany which
had, following the example of Spain, enshrined universal jurisdiction in its
Code of crimes against international law25 has now along with Spain,
modified the “purity” of the principle with strong elements of subsidiarity
or necessity to protect themselves against encountering United States opposition
with the same acuity as Belgium did.26 At the most, apart from the
well-known clauses in the Geneva Conventions of 1949 and the Anti-
Torture Convention (Art. 5), international consensus seems to have been reached
with regard to allegations of genocide notwithstanding the ominous provision
regarding jurisdiction in the Genocide Convention (Art. VI). On the
whole, the summary treatment of jurisdiction in Principles 6 and 7 is not
very helpful. It does not do justice to the complexities of the different titles
of jurisdiction and their conjunction in criminal cases. Thus, Principles 6
and 7 can only serve as a reminder that criminal prosecution is indeed one
of the consequences entailed by grave breaches of international law to the
detriment of individual human beings.
The duty to investigate
The duty to investigate any violations effectively, promptly, thoroughly and
impartially (Principle 3. (b)) is probably the most precious asset of the
BPG. It has reliable foundations in the jurisprudence of both, the Inter-American
and the European Court of Human Rights.27 Failing such investigation, no
prosecution can be successful, nor can victims have any chance to obtain
reparation for harm suffered. Additionally, in cases of gross or serious violations
of the applicable legal standards, an investigation satisfies the need
for a national community to know the truth.
24 Laws of 23 April 2003, 42 ILM, 2003, 758; 7 August 2003, ibid., at 1270.
25 Of 26 June 2002, 42 ILM, 2003, 998.
26 In Germany, Article 153f(2) of the Code of criminal procedure, ibid., at 1008, confers a large
measure of discretion to the prosecutorial authorities on which they relied in order to refuse
opening a criminal investigation against U.S. military officers resident in Germany on account
of the occurrences in the Abu Ghraib prison in Iraq; see decision of the Federal Prosecutor,
10 February 2005, provided on the internet by the U.S. Center for constitutional rights. In
Spain, the Supreme Court holds that universal jurisdiction as contemplated by Article 23(4) of
the Ley Orgánica del Poder Judicial becomes operational only in case of “necessity of judicial
intervention” by Spain, judgment of 20 May 2003, 42 ILM, 2003, 1206.
27 For references see C. Tomuschat, Human Rights. Between Idealism and Realism, (Oxford,
Oxford University Press, 2003), p. 271.
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B. Civil-law aspects
The State as the author of violations of human rights and IHL
In the field of reparation proper, the key issue is whether individuals have
a true entitlement to reparation or whether the BPG establish no more than
mere guidelines that may be implemented by States according to their
capacities. It stands to reason that a distinction has to be drawn according
to whether the alleged author of the injustice suffered by a victim is a State,
acting through its officials, or a non-State actor like a rebel group. Only
States are entities that can easily be perceived as debtors of a reparation
claim as opposed to the non-State entities that lack any precise contours,
and thus make them rather dubious debtors.
Pursuant to the classical logic of inter-State relations the obligations flowing
from human rights and international humanitarian law standards, either as
primary or as secondary law, constitute obligations as between States. This
applies also to Art. 3 of 1907 Hague Convention (IV) Respecting the Laws
and Customs of War on Land28 (first sentence):
A belligerent party which violates the provisions of the said Regulations shall,
if the case demands, be liable to pay compensation.
Although it has been contended by a few authors29 and also during the
deliberations of the BPG by a representative of the International Committee
of the Red Cross30 that said Art. 3 was meant to give rise to individual
claims, there are no clues whatsoever indicating that the provision was ever
understood, at the time of drafting, in such a progressive and almost revolutionary
sense. In addition, no subsequent practice can be found that would
corroborate that contention.31 The notion that individuals might derive direct
claims from a violation of IHL is a child of our time and in any event does
not go back beyond the emergence of the human rights movement.
Human rights obligations as well as obligations flowing from IHL pertain
to the “regular” class of international law; the violation of which entails
State responsibility according to the Articles codified by the ILC. In partic-
28 Reprinted in: A. Roberts, R. Guelff (eds.), Documents on the Laws of War, 3rd ed. (Oxford,
Clarendon Press, 2000), p. 69.
29 F. Kalshoven, Belligerent Reprisals (Leyden, A.W. Sijthoff, 1971), p. xx; see also E. David,
Principes de droit des conflits armés (Bruxelles, Bruylant, 2002), pp. 633-634.
30 Report on the first consultative meeting, UN doc. E/CN.4/2003/63, 27 December 2002, Annex 1,
para. 50.
31 The Manual of the Law of Armed Conflict, (Oxford, UK Ministry of Defence, 2004), mentions
throughout its pages only international responsibility in the classical sense.
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ular, the ILC has never felt the need to frame special rules for principles
and rules setting forth human rights obligations. Nonetheless, it is obvious
that the regime it has established does not fit such obligations in an ideal
manner either. The ILC Articles follow the logic of relationships governed
by the principle of reciprocity, which also underlies the legal system of
IHL. However, in instances where a government oppresses its own people,
other nations are normally not overtly interested in reacting to the relevant
violations of the applicable standards as long as the internal repression does
not produce negative extraterritorial repercussions. Legally, on the other
hand, the ILC Articles (Art. 48) have paved the way for third States to act
as guardians of international legality by “invoking” the responsibility of the
offending State. This is rarely done since such invocation is never cost free,
viewed in terms of political costs.
The question remains whether, in addition to States as the traditional
and unchallenged right holders, the protected individuals have a true entitlement
to reparation in case any principles and rules established in their
favour have been breached. It is today almost uncontroversial that the rights
of the so-called “first generation” set forth in human rights treaties or laid
down in customary law encapsulate indeed subjective rights that qualify as
true individual entitlements. However, this characterization of the primary
norms does not automatically lead to a like characterization of the legal
consequences engendered by a breach of the relevant primary norms. It will
be shown in a following section that the legal position is not as clear-cut
as portrayed by Van Boven in his impressive report. As far as IHL is concerned,
elements susceptible of suggesting the existence of individual rights
to compensation are even more difficult to identify since according to the
prevailing doctrine the rights provided for by IHL – understood as a set of
primary rules of conduct – have remained classic inter-State law, not being
accompanied by parallel individual entitlements.
Non-State actors as offenders
A discrepancy between primary and secondary norms can be observed in
particular with regard to non-State actors. Under IHL, it is well established
that rebel units fighting a government enjoy a certain status thus ensuring
the obligation of other actors to respect the minimum standards set out in
common Art. 3 of the four Geneva Conventions of 1949 as well as in
Additional Protocol II of 1977. Violation of these standards can trigger
criminal sanctions as has been established in the jurisprudence of the ICTY.
But it is rather doubtful whether one can go a step further by claiming that
rebel units may also have to face up to civil responsibility as a consequence
of non-compliance with the commitments that are binding upon them. It is
certainly a perfectly coherent idea to postulate that he who causes harm
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unlawfully must shoulder the consequences of his actions. But rebel units,
except in case they one day, accquire political power and rise to become the
new government of the country concerned,32 are essentially amorphous entities.
It may well be that individual members are brought to trial, but there
is, in general, no sufficiently stable factual basis for rendering the proposition
that they are financially, responsibly, really meaningful.
Since the BPG have adopted a “victim-based perspective”, they had to
face up to the eventuality that harm was caused not by governmental
authorities or military forces, but by non-State actors, in particular rebel
units. According to the ILC Articles, which reflect the applicable customary
law, no State is responsible for guerrilla movements. Therefore, with regard
to this particular configuration, a solution that did not proceed from the
assumption of State responsibility or liability, but a different point of departure
had to be framed. Principle 16 provides:
States should endeavour to establish national programmes for reparation and
other assistance to victims in the event that the party liable for the harm suffered
is unable or unwilling to meet their obligations.
Rightly, this Principle refrains from mentioning a duty of States or a corresponding
right of individuals. Only one justification can be found for this
extension of reparation beyond the confines of the area of State responsibility,
namely the principle of national solidarity that must be present in
every people which conceives of itself as a nation. However, clearly, no
elaboration of national solidarity can result in an individual entitlement
before it has been enacted by the competent national legislature. A fortiori,
there can be no such right directly under international law. Rightly, therefore,
soft language which clarified that what the drafters had in mind was
to set out a guideline that should be taken into account by national authorities
desirous to cope with the sequels of internal unrest was chosen.
4 INDIVIDUAL ENTITLEMENTS TO REPARATION?
Just recently, in its report, the Commission of Inquiry on Darfur maintained
that in view of a long history of increasing importance of human rights it
could be said by now that “there has now emerged in international law a
right of victims of serious human rights abuses . . . to reparation (including
32 See Art. 10(1) of the ILC Articles.
578 CHRISTIAN TOMUSCHAT
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compensation) for damage resulting from those abuses”.33 But the overall
picture remains fairly contradictory. There are international bodies that have
embraced a doctrine of full and complete reparation, while others show a
clear reluctance to subscribe to this proposition.
A. General considerations
One of the most fervent adherents of an individual right to reparation is the
Inter-American Court of Human Rights. It has remained faithful to its first
pronouncement in the famous Velásquez-Rodríguez case34 where it stated:
The State has a legal duty to take reasonable steps to prevent human rights violations
and to use the means at its disposal to carry out a serious investigation of
violations committed within jurisdiction, to identify those responsible, to impose
the appropriate punishment and to ensure the victim adequate compensation.35
On the other hand, the BPG do not endorse the doctrine of a true individual
right to reparation – although, in a strange borrowing from the traditional
Hull formula from the field of international protection of alien property, the
formula “adequate, effective and prompt reparation for harm” is used
(Principle 11 (b)). It is, first of all, highly significant that the title of section
IX was changed from “Victims’ right to reparation” to “Reparation for
harm suffered”. To be sure, in Principle 15, the introductory Principle of
section IX, the third sentence speaks of a duty of States to provide reparation
(“a State shall provide reparation to victims . . .”), but this proposition
is decisively attenuated by the phrase: “In accordance with domestic laws
and international legal obligations . . .”. This phrase amounts to a quantum
leap. It clearly indicates that no general obligation is deemed to enjoin
States to make reparation, but that such commitment can only be derived
from additional sources, either from national law or from principles and
rules of international law which need to be identified specifically in any
case at hand. The same inferences are to be drawn with regard to Principle
11. On the one hand, it states that “[r]emedies for gross violations of international
human rights law and serious violations of international humanitarian
law include the victim’s right36 to . . . (b) Adequate, effective and prompt
reparation for harm suffered”, but on the other hand it qualifies this assertion
by the words: “as provided for under international law”. An even
33 UN doc. E/CN.4/2005/3, 11 February 2005, para. 597.
34 Judgment, Ser. C, No. 4, 29 July 1988.
35 See also in the following section xxx.
36 Emphasis added.
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weaker formulation can be found in Principle 18, the chapeau for the following
Principles governing the forms of reparation. Here, the hortatory or
aspirational quality of the BPG is even more clearly expressed through the
key word “should”:
In accordance with domestic law and international law, and taking account of
individual circumstances, victims of gross violations of international human
rights law and serious violations of international humanitarian law should,37 as
appropriate and proportional to the gravity of the violation and the circumstances
of each case, be provided with full and efffective reparation . . . .
By contrast, the Bassiouni draft (para. 16) had used straightforward language
in setting forth that in such circumstances “a State shall38 provide
reparation to victims” – not only in case of gross violations of human rights
and serious breaches of IHL, but generally whenever “violations of international
human rights and humanitarian norms” had occurred. These modifications
of the relevant text are due to opposition that forcefully emerged during the
three consultative meetings. Quite a number of countries had serious misgivings
about adopting even a recommendation providing for true individual
entitlements.
Although pursuant to the well-established rules on sources, States are
not required to justify their acceptance or rejection of a given proposition
as a legal rule, their actual conduct constituting the determinative factor, an
attempt will be made in the following to inquire into the reasons why – or
why not – the classical rules on international responsibility of States are
suitable for application also to legal relationships between States and individuals.
Although a breach is a breach and does not change its quality
depending on who is the aggrieved party, the general context has different
features. Relations between States are generally based on reciprocity. If in
the case of a treaty relationship of the traditional type (traité-contrat) one
of the parties does not live up to its commitments, the consideration that
motivated the other party to enter into the treaty relationship evaporates.
The wrong-doing State is unjustly enriched. No nation can be expected to
accept non-fulfilment of formal pledges it has received from its counterpart.
The damage that it has sustained as a result of the non-performance must
be repaired by the wrongdoer. Generally, no account is taken of the capacity
to pay by the offender. To be sure, however, there must be some limits
to what can be demanded of a nation led into disaster by a criminal lead-
37 Emphasis added.
38 Emphasis added.
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ership. But, at the international level, one can observe great reluctance to
acknowledge such limits. Although valid precedents can be found for circumscribing
the liability of a nation, since reparation payments are capable
of curtailing in particular the elementary human rights of a younger generation,
the ILC was not prepared to maintain in its Articles on State Responsibility
the rule of the draft adopted on first reading in 1996 according to which
(Art. 42 (3)) “[i]n no case shall reparation result in depriving the population
of a State of its own means of subsistence”.39
The elements of harm or enrichment at an inter-State level are totally
lacking in instances where a government infringes the rights of its own citizens.
In such a situation, reflection on how to make reparation will also
take, as its starting point, the harm caused. However, in the awareness that
the entire national community will have to shoulder the ensuing burden, in
particular the weight of pecuniary compensation. To what extent can taxpayers
be subjected to charges that seek to make good the injuries suffered
not only in some individual cases, but by a large group of the population?
To answer this question, the strength of the principle of national solidarity
has to be assessed. Moreover, it also has to be taken into account that with
regard to a repressive regime, it is extremely difficult to distinguish between
victims and non-victims. A dictatorship leaves no room for those under its
control to breathe freely. Everyone, with the exception of its direct beneficiaries,
is a victim even if he or she has not suffered any physical or otherwise
economically assessable harm. Thus, the question of what amount of
resources should be made available for financial compensation arises under
totally different auspices if a settlement is to be achieved within a national
community. Issues of equity, which would be irrelevant as a defence against
claims raised by other nations, are a legitimate argument when a nation
deals with its own matters internally.
B. The practice of international bodies
A summary look at the practice of some of the international bodies that
have to deal with reparation claims shows that their jurisprudence is not
free from inconsistencies that to some extent reflect the real problems that
have to be resolved in trying to respond to such claims in consonance with
a yardstick of fairness and justice.
39 ILC Yearbook 1996, Vol. II, Part Two, p. 63.
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The Inter-American Court of Human Rights
As already mentioned, the Inter-American Court of Human rights has developed
through its jurisprudence, a doctrine according to which, any victim of
a human rights violation has a right to full reparation. Yet the systemic
foundations of this jurisprudence are not flawless. The basic objection
against it stems from the fact that the Court invokes the principles affirmed
in the seminal Chorzow judgment of the Permanent Court of International
Justice,40 now reflected in Art. 31 (1) of the ILC Articles. It does so without
even posing the question whether a rule that has evolved with regard to
inter-State relations fits likewise in relationships between States and individuals
which more often than not involve thousands of cases,41 thereby engendering
a complexity which is totally different than the consequences of international
responsibility at inter-State level. This disregard for the hiatus separating
the two classes of cases has led to consequences that are hard to explain
and justify.
Concerning Guatemala, it is a sad, but proven fact that during the
“armed confrontation”42 of more than 30 years, about 200,000 persons
found their death, many of them killed in the most barbaric way. To this
very day, no program of reparation has become operational, even though the
national truth commission “Comisión para el Esclarecimiento Histórico”
back in 1999, recommended to adopt and implement such a program43 in
favour of the most hard hit victims of the atrocities that had plagued the
country for decades, making life almost unbearable in many rural areas. Yet,
thus far, only nine cases have been adjudicated by the Court. The first case
where financial compensation was granted concerned an American (sic!)
journalist, Nicholas Blake, who had been murdered by members of the security
forces of the State. The Court ruled that that the next of kin of the victim
were entitled to receive compensation payments amounting to 151,000
40 Of 13 September 1928, Ser. A No. 17, p. 29: “It is a principle of international law, and even
a general conception of law, that any breach of an engagement involves an obligation to make
reparation.”
41 See, inter alia, the following judgments: Aloeboetoe et al., 10 September 1993, Ser. C No. 15,
para. 43; Caballero-Delgado and Santana, 29 January 1997, Ser. C No. 31, para.15; Garrido
and Baigorria, 27 August 1998, Ser. C No. 39, para. 40; Castillo Páez, 27 November 1998,
Ser. C No. 43, para. 50; Suárez Rosero, 20 January 1999, Ser. C No. 44, para. 40. For an
attempt tojustify this jurisprudence, see Juan Humberto Sánchez v. Honduras, 26 November
2003, Ser. C No. 102, paras. 53-56.
42 Generally, the Government of Guatemala preferred to speak of an “enfrentamiento armado”
instead of a “conflicto armado” in order to avert the consequences of the applicability of international
humanitarian law.
43 Informe de la Comisión para el Esclarecimiento Histórico, Guatemala Memoria del Silencio,
t. V (Guatemala, 1999), paras. 7 et seq.
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dollars.44 In another judgment of 25 May 2001, the family members of the
victims in the so-called “White Van” case were allotted high amounts for
pecuniary and non pecuniary damage, 108,000 and 54,000 dollars in the
case of the first victim, 78,000 and 40,000 dollars in the second case.
Maybe, the apex of this generous jurisprudence was reached in the case of
Myrna Mack Chang,45 an anthropologist killed by an agent of the Presidential
Staff in September 1990. To be sure, the sister of the killed woman,
Helen Mack, who pursued the case for more than a decade with unheard of
courage notwithstanding many threats to her life and physical integrity, had
gone through an ordeal before being able to triumph beforethe Court. And
yet, the sums allotted to the next of kin of the direct victim – 266,000 dollars
for pecuniary damage and 350,000 for non-pecuniary damage – stand
in stark contrast to the misery of all the other victims, in particular among
the Mayan population, who are still waiting for at least a symbolic payment
in recognition for their suffering.
Similar observations can be made with regard to Colombia. The most
recent report of the High Commissioner for Human Rights on the situation
of human rights in Colombia46 reveals a disquieting picture of general lawlessness;
a situation where the Government seems unable to bring under its
control. Many thousands of persons were adversely affected by serious violations
of human rights in 2004. Displacement of farmers from their rightfully
owned land continues almost unabated. On the other hand, just three
cases have reached the Court. In two of these three cases, the Court meticulously
computed the amounts owed to the victims, taking into account
their presumed income and the length of their professional activity, whereas
in the third case, the amount granted as compensation only had a symbolic
value since the identity of a man shot dead, allegedly a guerrilla fighter, had
not been established at the time of delivering the judgment. Again, the sums
in issue are quite remarkable, ranging from 55,000 dollars in the case of the
19 Comerciantes47 to 89,500 dollars in the Caballero-Delgado and Santana
case48 and still further to 100,000 dollars in the Las Palmeras case.49
It is recognizable at first glance that neither Guatemala nor Colombia
would be able to grant amounts of a similar magnitude under a generalized
reparation scheme to every victim of serious violations of human rights. The
economic strength of the two countries would not sustain such a burden.
44 Judgment of 22 January 1999, Ser. C No. 48.
45 Judgment of 25 November 2003, Ser. C No. 101.
46 UN doc. E/CN.4/2005/10, 28 February 2005.
47 Judgment of 5 July 2004, Ser. C No. 109.
48 Judgment of 29 January 1997, Series C No. 31.
49 Judgment of 26 November 2002, Ser. C No. 96, para. 12.
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Hence, a generalized program of reparation would have to be tailored to
take the financial realities into account. The gap between the jurisprudence
of the Court and the situation on the ground of the two countries is so huge
that reaching the Court with a complaint comes close to achieving a major
win in a lottery. This means that the jurisprudence of the Court cannot be
the determinative parameter for a framework of rules for the reparation of
harm done in violation of human rights and humanitarian law. Legal norms
need firm factual bases. They cannot be derived exclusively from general
concepts of equity and justice. Above all, the law should be the same for
everyone. Reparation schemes that bring considerable benefits to a small
group of victims while not addressing the plight of all the others are not
suited as a general orientation mark. Nor do pure guidelines escape this
simple logic; in any event it must be understood that they need to be handled
with great flexibility.
The Human Rights Committee
The case law of the Human Rights Committee (HRCee) regarding individual
communications under the [First] Optional Protocol shows a high degree
of flexibility. Many cases that have been dealt with by the HRCee concern
persons sentenced to death and awaiting death sentence complaining of
irregularities in the proceedings. In general, the HRCee concludes in such
circumstances, when the complaints appear to be well-founded, that the
State concerned should release the person concerned or commute his sentence.
50 Yet, no compensation is awarded as reparation for non-pecuniary
damage although the imposition of a death sentence on a person carries
with it tremendous anguish and mental stress, factors that would justify the
allocation of compensation for non-pecuniary damage. In a few death row cases,
however, somewhat at random, the HRCee has expressed the view that in
addition to releasing the victim, compensation should also be granted.51 On
the other hand, it is fully understandable that the HRCee reacted angrily in
a case where, notwithstanding a provisional injunction not to take any measures
during the course of the proceedings that would cause irreparable
damage, the victim was executed: here, compensation was the only remedy
that could still alleviate, to some extent, the suffering of the family mem-
50 See views in the following cases: Mulai v. Guayana, 20 July 2004, case 811/1998; Smartt v.
Guayana, 6 July 2004, case 867/1999; Ramil Rayos v. Philippines, 27 July 2004, case
1167/2003; Pagdayawon v. Philippines, 3 November 2004, case 1110/2002; Deolall v.
Guayana, 1 November 2004, case 912/2000.
51 See views in the following cases: Abdumalik Nazarov v. Uzbekistan, 6 July 2004, case
911/2000; Khomidov v. Tajikistan, 29 July 2004, case 1117/2002.
584 CHRISTIAN TOMUSCHAT
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bers.52 Where a person was sentenced to long years of deprivation of freedom,
the HRCee seems generally to be inclined to award compensation.53
Likewise in many other cases, when a breach is found to exist, it is mostly
said in a routine formula that the petitioner is entitled to an “effective remedy,
including compensation”.54 However, no care is taken to specify the
amount of compensation. Obviously, this could be a minimal symbolic
amount. It would also appear that States rarely heed such recommendations.
Unfortunately, compliance with the views of the HRCee generally leaves
much to be desired, the suggested “compensation” constituting the subjectmatter
where the Committee is least successful.55
On the whole, the precedents examined lead to the conclusion that the
HRCee does not recognize any firm rule on reparation. It starts out on the
premise that wrongdoing States owe reparation to the victims of their
actions, but that a great variety of possible options exist from which it can
choose at its discretion. In particular, compensation is not seen as an integral
element of reparation. If it were otherwise, financial compensation, in
addition to retrial or relase, would have to be granted in each and every
case where an accused was convicted and sentenced on the basis of a faulty
proceeding.
The Committee against Racial Discrimination
More flexibility and even vagueness can be encountered in the case law of
the Committee against Racial Discrimination. The Committee is generally
satisfied if the discriminations found by it are removed.56 Only in some instances
does it recommend that at the same time the petitioner should be provided
with compensation (“economic reparation”).57 In one of the few cases which
have come to the cognizance of the Committee, a formula was employed
which mentions “relief commensurate with the moral damage he [the petitioner]
has suffered”. In sum, little can be gathered from this jurisprudence.
52 Saidova v. Tajikistan, 8 July 32004, case 964/2001.
53 See views in the following cases: Dugin v. Russia, 5 July 2004, case 815/998; Nallaratnam
Singarasa v. Sri Lanka, 21 July 2004, case 1033/2001.
54 See views in the following cases: Svetik v. Belarus, 8 July 2004, case 927/2000 (discrimination
on account of exercise of freedom of expression); Majuwana Kamkanamge, 27 July 2004,
case 909/2000 (harassment of journalist through indictments); Loubnar El Ghar v. Libya, 29
March 2004, case 1107(2002 (denial of passport).
55 See Report of the HRCee on its 76th to 78th sessions (2002 and 2003), UN doc. A/58/40 (Vol.
I), Chapter VI: Follow-up Activities under the Optional Protocol.
56 See the following opinions: Koptova v. Slovakia, 8 August 2000, case 13/98 (freedom of movement
and residence of Romas); Kashif Ahmad v. Denmark, 13 March 2000, case 16/1999 (nonprosecution
of insulting racist language).
57 See B.J. v. Denmark, 17 March 2000, case 17/1999 (refusal of admission to a public place).
32 – REPARATION IN FAVOUR OF INDIVIDUAL VICTIMS OF GROSS VIOLATIONS 585
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The Committee against Racial Discrimination favours a pragmatic approach.
Again, the premise is that anyone victim of a violation of the Convention
should be provided with “some” remedy. But the Committee concedes wide
room to the discretion of the respondent State.
The European Court of Human Rights
The case law of the European Court of Human Rights (henceforth: ECHR)
has specific characteristics in that, until a few years ago, the Court believed
that its mandate was confined to awarding financial compensation. Only
after the ruling in the case of Papamichaloupoulos v. Greece58 did the Court
progressively come to the conclusion that its reading of Art. 41 (formerly:
Art. 50) was much too narrow. It now takes the view that it is entitled, at
least, to recommend to the respondent State found guilty of the complaints
brought against it to take specific measures.59 Thus, in the many cases
where the ECHR has declared that it was not convinced of the independence
of the Turkish State Security Court, it has taken to stating in the body
of its legal reasoning, its conviction that the best remedy is a retrial of a
person convicted and sentenced under such dubious circumstances. Unfortunately,
this “recommendation” does not appear in the dispositif of the
relevant judgments.60 By contrast, where the restoration of property is concerned,
a true order is enunciated in the dispositif (“the respondent State is
to return to the applicant”), but the State is accorded the freedom to perform
its duty by paying a corresponding amount of money.61 Thus, the fact
that financial compensation has been awarded in numerous cases does not
signify that the ECHR considers this form of reparation to be the best
modality to make good the harm done in any case at hand. Such a conclusion
would be even less plausible as the ECHR is extremely cautious with
regard to financial compensation. First of all, in many cases, it deems a
finding of a breach to constitute sufficient reparation.62 Second, the amounts
which it is prepared to award to applicants are mostly much lower than the
58 Of 31 October 1995, Publications of the ECHR, Series A, Vol. 330-B, p. 45 (64).
59 This was recommended by C. Tomuschat, “Just satisfaction under Article 50 of the European
Convention on Human Rights”, in: P. Mahoney et al. (eds.), Protecting Human Rights: The
European Perspective. Studies in Memory of Rolv Ryssdal (Köln [etc.], C. Heymann, 2000),
pp. 1409, 1429.
60 See Biyan v. Turkey, 3 February 2005, para. 59aa: “Lorsque la Cour conclut que la condamnation
d’un requérant a été prononcée par un tribunal qui n’était pas indépendant et impartial
au sens de l’article 6 § 1, elle estime qu’en principe le redressement le plus approprié serait
de faire rejuger le requérant en temps utile par un tribunal indépendant et impartial.”
61 See Brumarescu v. Romania, 23 January 2001; Buzatu v. Romania, 27 January 2005.
62 See, for instance, the recent case of Philippe Pause v. France, 15 February 2005, where the
guarantees of fair trial under Art. 6 (1) of the European Convention had not been respected.
586 CHRISTIAN TOMUSCHAT
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amounts requested by the applicant parties. Thus, in the case of Vargová v.
Slovakia, where civil proceedings seeking to secure the restitution of a
house had lasted for twelve years, the respondent State was ordered to pay
the modest sum of 4,000.00 Euros,63 and in the Chechen cases, where the
Court delivered judgment on 24 February 2005,64 the amounts allotted for
non-pecuniary damage appear to be rather modest, compared to the
immense mental harm sustained by the applicants.
It is difficult to draw a general conclusion from this case law. No precise
parameters can be identified. In any event, it would seem to the outside
observer that the ECHR does not apply the principle of full reparation
as the relevant yardstick, but that it rather seeks to provide some kind of
moral encouragement to applicants, being aware that not everything can be
made good a posteriori. At the same time, this cautious approach is successsful
in not overburdening States with reparation claims which, because
of their financial consequences, they would not be able to shoulder.
This tentative interpretation of the jurisprudence of the ECHR has been
corroborated by the recent judgment in the case of Von Maltzan and Others,65
where the key issue was compliance or non-compliance by Germany with
its obligations under Art. 1 of Protocol No. 1 on account of the confiscations
in the territory of the former Soviet-occupied zone of Germany before
the establishment of the German Democratic Republic (1945-1949). These
confiscations were not repealed after German reunification. The former owners
received financial compensation according to a federal law, but the
respective amounts were far lower than the commercial value of the properties
at today’s prices. On the other hand, in respect of confiscations carried
out at the hands of the GDR authorities after 1949, precedence was
given to restitution. The basis of this discriminatory treatment, i.e., the
establishment of the GDR, was an arrangement between the two German
governments in June 1990 (“Joint Declaration”), a few months before the
formal incorporation of the GDR into the (West-)German State. It is highly
controversial whether this arrangement was motivated by a Soviet request
as a precondition for its consent to reunification. In any event, it was clear
from the very first day in the reunited Germany, that the former owners
could not hope to recover their assets. Thus, when the European Convention
of Human Rights was extended ratione territorii to the eastern part of Germany,
they had no rights that could have enjoyed protection under Art. 1 of
63 Judgment of 15 February 2005. The applicant had requested 18,000 Euros for non-pecuniary
damage.
64 Judgments against Russia: Khashiyev; Akayeva; Isayeva; Yusupova; Bazayeva; Zara Isayeva.
65 Judgment of 30 March 2005.
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Protocol No. 1. However, in addition to this somewhat formalistic reasoning,
the ECHR added:
The enactment of laws providing for the restitution of confiscated property or
the payment of indemnification or compensation or for the rehabilitation of persons
who had been prosecuted in breach of the rule of law obviously involved
consideration of many issues of a moral, legal, political and economic nature
which are a matter of public concern and in respect of which the Contracting
States have a wide margin of appreciation. In particular, the Court reiterates that
the Convention imposes no specific obligation on the Contracting States to provide
redress for wrongs or damage caused by a foreign occupying force or
another State.66
Along similar lines, it continued this argument by holding:
In the instant case, by choosing to make good injustices or damage resulting
from acts committed at the instigation of a foreign occupying force or by
another sovereign State, the German legislature had to make certain choices in
the light of the public interest. In that connection, by enacting legislation governing
issues of property and rehabilitation after German reunification, it had
regard, among other things, to the concepts of ‘socially acceptable balance
between conflicting interests’, ‘legal certainty and clarity’, ‘right of ownership’
and ‘legal peace’ contained in the Joint Declaration. Similarly, in examining the
compatibility of that legislation with the Basic Law, the Federal Constitutional
Court referred to the principles of ‘social justice and the rule of law’ and that
of the ‘prohibition of arbitrariness’.
As the Court has stated above (see paragraph 77), where a State elects to
redress the consequences of certain acts that are incompatible with the principles
of a democratic regime but for which it is not responsible, it has a
wide margin of appreciation in the implementation of that policy.”67
It clearly emerges from these observations that the Court accepts the
context-dependency of any reparation scheme. It rejects any rigidity in handling
situations where a national community has to face up to the ruins left
behind by a repressive regime. Quite obviously, the ECHR does not share
the view that restitution must take place in any event. If it had embraced
this doctrine, the former owners could have claimed the coverage of Art. 1
of Protocol No. 1 for their right to restitution. Yet, the Strasbourg judges
have explicitly denied them this benefit.
66 Ibid., para. 77.
67 Ibid., paras. 110-111.
588 CHRISTIAN TOMUSCHAT
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5 REPARATION IN PROCESSES OF TRANSITIONAL JUSTICE
The Von Maltzan judgment sheds a sharp light on the BPG. Although the
codification initiative, as shown by its title, had as its factual background
“gross” human rights violations and “serious” violations of IHL, both phenomena
which are related to internal armed conflict and hence violations on
a massive scale, the BPG were drafted as if they were to apply in situations
where specific individuals claim their right to reparation. Consequently, the
structure follows the one underlying the ILC Articles, exactly in the same
order. Restitution being the first followed by compensation and satisfaction,
and only rehabilitation derogating from the established sequence. Satisfaction
and guarantees of non-repetition complemented the pentagram as
outlined in the 1996 draft of the ILC Articles.68 One might even get the
impression that the drafters deliberately shied away from taking note of the
ongoing debate on transitional justice,69 quite in the same way as the ILC
not devoting any attention to the drafting efforts deployed by the Sub-
Commission and the Commission on Human Rights on the BPG. Processes
of transitional justice do not involve individual cases only, they concern
nations as a whole that seek to gain new stability under conditions of peace
and justice.
It is common knowledge today that for processes of transitional justice,
reparation is one element only, albeit an important one.70 Other elements are
the punishment of the major criminals and the search for the truth inasmuch
as societies need to know what led them into the abyss from which they are
trying to rise again. All the elements of a passage to democracy and the rule
of law are present in the BPG. Curiously enough, however, they are listed
under “satisfaction” and “guarantees of non-repetition” as if individual reparation
claims had to be satisfied. This amounts to a distorted vision of what
68 ILC Yearbook 1996, Vol. II, Part Two, p. 63. The 2001 version of the Articles relegated assurances
and guarantees of non-repetition to Art. 30 which deals with the continuity of the duty
of performance.
69 See, for instance, M. Abu-Nimer (ed.), Reconciliation, Justice, and Coexistence. Theory & Practice
(Lanham MD, Lexington Books, 2001); D. Bloomfield, T. Barnes, L. Huyse (eds.), Reconciliation
after Violent Conflict. A Handbook (Stockholm, International Institute for Democracy and
Electoral Assistance, 2003); A.M. Gross, “The Constitution, Reconciliation and Transitional
Justice”, 40 Stan J Int’l L, 2004, 47-104; L.H. Meyer (ed.), Justice in Time. Responding to
Historical Injustice (Baden-Baden, Nomos, 2004); R.I. Rotberg, D. Thompson (eds.), Truth v.
Justice. The Morality of Truth Commissions (Princeton & Oxford, Princeton University Press,
2000); R.G. Teitel, “Transitional Justice Genealogy” 16 HHRJ, 2003, 69-94. Recently, the UN
Secretary-General has written an illuminating report: “The rule of law and transitional justice
in conflict and post-conflict societies”, UN doc. S/2004/616, 23 August 2004.
70 In this regard, the proposals by Louis Joinet, supra (note 8), which start out with the “inalienable
right” of every people “to know the truth”, were exemplary.
32 – REPARATION IN FAVOUR OF INDIVIDUAL VICTIMS OF GROSS VIOLATIONS 589
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is necessary after a national cataclysm. When finally it has been possible to
topple a repressive regime, the first task is indeed to restore law and order,
in particular enjoyment of human rights, to the benefit of everyone. For that
purpose, an efficient and independent judiciary is required inter alia. Law
and order, understood in this sense, are a common good to be enjoyed by
everyone in the community concerned.
At a second stage, collective reparation measures need be taken as they
are almost exhaustively comprised in the BPG under “Satisfaction” and
“Guarantees of non-repetition”. Much of that, however, has little to do with
reparation: the two Principles (22. and 23.) contain an exhaustive program
of strengthening good governance. With these ambitious objectives, the
BPG leave quite definitely the realm of a reparation programme. They state
broad policy objectives that, by their very nature, are simply incapable of
ever rising to the status of hard law. Hence, one may conclude that the title
of the BPG was well chosen. Yes, they do contain some legal principles,
but very few ones, the bulk of the propositions compiled under their roof
deserving indeed a classification as “guidelines” which are useful as a kind
of “shopping list” when the way in which a process of transitional justice
is to be set on its tracks is examined.
6 CONCLUDING OBSERVATIONS
The logical inference from the preceding considerations is that careful distinctions
are necessary with regard to all of the measures designed to clear
up the tragic rubble caused by public anarchy. Simple answers can never be
given. Collective measures to restore public peace and security should generally
enjoy priority. Likewise, for the sake of national harmony and stability,
gestures recognizing the evils committed and acknowledging the plight
of the victims are important with a view to preventing future tragedies arising
on the same grounds. In the field of individual reparation, restitution is
normally easier to effect than to pay compensation, however, this is only a
thumb rule that does not apply automatically in all similar situations. In any
event, the principle of “full reparation” is not a viable recipe when a societal
battlefield must be transformed into a playground where civil society is
able to accommodate its conflicts of interests under constitutional rules of
democracy and human rights.
590 CHRISTIAN TOMUSCHAT
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Stephan Wittich, “Punitive Damages”, in THE LAW OF INTERNATIONAL RESPONSIBILITY (J.
Crawford et al. eds., 2010)
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P. Tomka & V.-J. Proulx, “The Evidentiary Practice of the World Court” in LIBER AMICORUM
GUDMUNDUR EIRIKSSON (J. C. Sainz-Borgo ed., forthcoming 2016)
THE EVIDENTIARY PRACTICE OF THE WORLD COURT
DR PETER TOMKA
Judge and former President of the International Court of Justice
DR VINCENT-JOËL PROULX
Assistant Professor, National University of Singapore’s Faculty of Law
A finalized version of this chapter will appear in:
Juan Carlos Sainz-Borgo (ed)
Liber Amicorum Gudmundur Eiriksson
(San José, University for Peace Press, forthcoming in 2016)
I. INTRODUCTION
The role and place of evidence in international legal proceedings are of fundamental
importance for international justice and the rule of law. In many ways, the production and
management of evidence constitute the most crucial building blocks in ensuring a just and wellreasoned
judicial outcome in a dispute between sovereign States. Unsurprisingly, the subject of
evidence before international courts and tribunals and surrounding issues have generated
considerable scholarly output over the years, including in relation to specific international legal
fields.1 What is more, the academic literature has also devoted considerable time and space to
discussing the various aspects of the evidentiary practice of the International Court of Justice
(‘Court’, ‘ICJ’ or ‘World Court’), be they related to the burden of proof, standard of proof or
1 See eg, Paul Reichler, ‘Problems of Evidence before International Tribunals’ in John Norton Moore (ed), International
Arbitration: Contemporary Issues and Innovations (Leiden and Boston, Martinus Nijhoff, 2013) 47-52; Mary Ellen O’Connell,
‘Rules of Evidence for the Use of Force in International Law’s New Era’ (2006) 100 Proceedings of the Annual Meeting of the
American Society of International Law 44; Chittharanjan Felix Amerasinghe, Evidence in International Litigation (Leiden and
Boston, Martinus Nijhoff, 2005); Chittharanjan Felix Amerasinghe, ‘Principes en matière de preuve dans le procès
international: Principles of Evidence in International Litigation: 15ème Commission’ (2002-2003) 70 Annuaire de l’Institut de
Droit international 139; Rodman Bundy, ‘Evidence before International Tribunals in Maritime Delimitation Disputes’ in
Clive Schofield et al (eds), The Razor’s Edge: International Boundaries and Political Geography: Essays in Honour of Professor Gerald
Blake (London, Kluwer Law International, 2002) 173-83; Mojtaba Kazazi and Bette Shifman, ‘Evidence before
International Tribunals’ (1999) 1 International Law Forum 193; Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on
Evidence (The Hague, Kluwer Law International, 1996); Charles Bower, ‘Evidence before International Tribunals: The
Need for Some Standard Rules’ (1994) 28 The International Lawyer 47; Durward Valdamir Sandifer, Evidence before
International Tribunals (revised edn, Charlottesville, NY, University Press of Virginia, 1975); Jens Evensen, ‘Evidence
before International Courts’ (1955) 25 Acta Scandinavica Juris Gentium 14; J.C. Witenberg, ‘La théorie des preuves devant
les juridictions internationales’ (1936-II) 56 Recueil des Cours 1.
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2
broader procedural questions.2 Over the last decade, there has been renewed interest in the Court’s
approach to evidentiary issues, as it is increasingly confronted with fact-intensive and science-heavy
cases. Evidentiary questions have also been central in some scholarly accounts addressing the role of
the law of State responsibility in tackling modern security threats such as international terrorism,
leading some publicists to formulate proposals for normative and policy reform or deliver critical
assessments of the current evidentiary system on the international plane.3 In any event, the principal
judicial organ of the United Nations (‘UN’) remains paramount in applying and developing
international legal principles; its many contributions on evidentiary matters warrant further
consideration.
In this brief chapter, we canvass some key aspects of the evidentiary practice of the World
Court, while placing some emphasis on recent developments on that front. While providing an
exhaustive treatment of this subject is simply impossible in only a few pages, our ambition is
nonetheless to provide insight into both the Court’s jurisprudential pronouncements on important
evidentiary matters, and its institutional culture and practice as regards the management and
treatment of evidence. This chapter begins by mapping out the evidentiary framework governing the
Court’s work, with reference to relevant provisions, before turning to the admissibility of evidence
before the Court. Ultimately, this contribution recalls and explores select substantive
pronouncements of the Court on matters of evidence.
2 See eg, Luigi Fumagalli, ‘Evidence before the International Court of Justice: Issues of Fact and Questions of Law in the
Determination of International Custom’ in Nerina Boshiero et al (eds), International Courts and the Development of
International Law: Essays in Honour of Tullio Treves (The Hague, Asser Press, 2013) 137-48; Jacques-Michel Grossen, ‘A
propos du degré de la preuve dans la pratique de la Cour internationale de Justice’ in Marcelo Kohen et al (eds),
Perspectives of International Law in the 21st Century: Liber Amicorum Professor Christian Dominicé in Honour of his 80th Birthday
(Leiden and Boston, Martinus Nijhoff, 2012) 258-68; Anna Riddell and Brendan Plant, Evidence before the International Court
of Justice (London, British Institute of International and Comparative Law, 2009); Eduardo Valencia-Ospina, ‘Evidence
before the International Court of Justice’ (1999) 1 International Law Forum 202; Andrés Aguilar Mawdsley, ‘Evidence
before the International Court of Justice’ in Ronald St. John Macdonald (ed), Essays in Honour of Wang Tieya (Dordrecht,
Boston and London, Martinus Nijhoff, 1994) 533-50; Manfred Lachs, ‘Evidence in the Procedure of the International
Court of Justice: Role of the Court’ in Emmanuel Bello and Prince Bola Ajibola (eds), Essays in Honour of Judge Taslim
Olawale Elias: Volume I: Contemporary International Law and Human Rights (Dordrecht, Boston and London, Martinus
Nijhoff, 1992) 265-76.
3 See eg, Tal Becker, Terrorism and the State: Rethinking the Rules of State Responsibility (Oxford and Portland, Hart Publishing,
2006) 146-51, 340-48; Vincent-Joël Proulx, Transnational Terrorism and State Accountability: A New Theory of Prevention
(Oxford and Portland, Hart Publishing, 2012) 39-40, 220-26.
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3
II. THE EVIDENTIARY FRAMEWORK BEFORE THE COURT AND RELEVANT PROVISIONS
From a more traditionalist standpoint, the Court’s pronouncements are not only a way to
peacefully resolve disputes between States, but they also strive to establish an accurate historical
record, be it of the negotiation history between two States in the context of a maritime delimitation
case or boundary dispute, the drafting history of a particular international convention, or the
background facts to an armed conflict relevant to a dispute before the Court. In that light, the role
of evidence before the Court becomes central in establishing a faithful historical record, in addition
to assisting the Court in ascertaining the facts relevant to its legal decision with a view to reaching a
just and well-reasoned outcome. After all, it should be recalled – and stressed – that the principal
judicial organ of the UN is not only a court of first instance but also of last instance. According to
Article 60 of the Statute of the Court, ‘[t]he judgment is final and without appeal’.4 Invariably, in
each case brought to it, the Court is called upon to sift through vast evidentiary records, establish
the factual complex related to the proceedings and, ultimately, reach well-supported and just
conclusions both on the facts and the law, thereby peacefully settling the disputes of which it is
seized.
At the outset, it must be emphasised that the Court differs in some regards from domestic
tribunals, in that the rigidity of evidentiary rules found in some municipal legal systems has not been
transposed integrally to the international legal order. Quite the contrary, the rule of thumb for
evidentiary matters before the Court is flexibility. The Statute of the Court is correspondingly
cursory in the wording of Article 48, simply providing that the Court shall ‘make all arrangements
connected with the taking of evidence’. In principle, there are no highly formalised rules of
procedure governing the submission and administration of evidence before the Court, nor are there
any restrictions about the types of evidentiary materials that may be produced by parties appearing
before it.
In short, in deciding the cases submitted to it, the overarching objective of the Court is to
obtain all relevant evidence pertaining to both facts and law that may assist it in ruling on issues of
4 The Statute of the Court is available at http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0.
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4
substance, as opposed to providing a judicial outcome grounded primarily on technical and/or
procedural rationales. The Court’s predecessor institution, the Permanent Court of International
Justice (‘PCIJ’), had identified this as its dominant judicial philosophy as early as 1932 in the Free
Zones of Upper Savoy and the District of Gex case. In that regard, it proclaimed that ‘the decision of an
international dispute of the present order should not mainly depend on a point of procedure’.5
Interestingly, the current Statute of the Court is modelled after the Statute of its predecessor,
which saw the light of day in 1920. This explains why several of the statutory guidelines concerning
evidence carried over from the previous institution to the new Court in 1946. Together, these
institutions provide over 90 years of accumulated evidentiary practice, which is a testament to the
foresight of the framers of the UN Charter with respect to institutional continuity. That said, it
should be emphasised that despite the inspiration drawn from the PCIJ’s Statute by the ICJ’s Statute
– supplemented by the Rules of Court – the genesis of the provisions on evidence in those
instruments actually derives from the draft rules of procedure for international arbitration of the
Institute of International Law of 1875, the Hague Conventions for the Pacific Settlement of
International Disputes of 1899 and 1907, and the accumulated evidentiary practice of international
courts of arbitration.6
It goes without saying that the Court disposes of a wide margin of latitude not only in
requesting evidentiary elements, but also in assessing the evidence in each dispute submitted to it,
while considering both the relevant rules of international law and the specific facts and
circumstances of each case.7 While the resulting procedural and evidentiary model governing the
Court’s work is in many ways sui generis and tailored to the singular mission of the Court as the
principal judicial organ of the UN, it nonetheless draws inspiration from both the Anglo-Saxon legal
tradition and continental systems of civil law.
5 Case of the Free Zones of Upper Savoy and the District of Gex, 1932 PCIJ (ser A/B) No 46 (7 June) at 155.
6 See Aguilar Mawdsley, above note 2 at 534 and 541; Lachs, above note 2 at 265.
7 See, generally Maurice Kamto, ‘Les moyens de preuve devant la Cour internationale de Justice à la lumière de quelques
affaires récentes portées devant elle’ (2006) 49 German Yearbook of International Law 259.
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By way of example, the active search for evidence carried out by the Court is reminiscent of
the continental judicial culture whereas the introduction of affidavit evidence finds its roots in the
common law tradition, thereby resulting in the absence of any rigid hierarchy of different types of
evidence before the Court.8 Indeed, both the PCIJ and the ICJ have assessed affidavit evidence (i.e.
sworn statements) in disputes brought before them, including in oft-cited cases such as Mavrommatis
and Corfu Channel.9 Equally important are the vast-ranging powers conferred upon the Court,
enshrined in Article 62 of the Rules of Court, to call witnesses and direct the parties to provide
evidence. In fact, the scope of powers generated by the wording of this provision is best illustrated
by quoting the text itself:
[t]he Court may at any time call upon the parties to produce such evidence or to give such
explanations as the Court may consider to be necessary for the elucidation of any aspect of the
matters in issue, or may itself seek other information for this purpose.10
This includes – always with the aim of attaining the objective truth – the possibility of the Court
arranging ‘for the attendance of a witness or expert to give evidence in the proceedings’.
The Rules of Court – particularly Articles 57 and 58 – lay down a fairly robust evidentiary
framework with respect to the submission and admission of oral evidence. In contrast, the practical
effect of these provisions is somewhat tempered by Article 60 of the Rules of Court, which
prescribes succinctness and finiteness of oral statements, and by Article 61, which enables the Court
to manage the administration of evidence and to question the parties. By virtue of Article 49 of the
Court’s Statute, ‘[t]he Court may, even before the hearing begins, call upon the agents to produce
any document or to supply any explanations. Formal note shall be taken of any refusal’. In fact, the
Court has availed itself of the power conferred upon it by this provision on several occasions.11
Moreover, Article 50 of the Statute confers vast fact-finding powers upon the Court, which allows it
8 See eg, Valencia-Ospina, above note 2 at 204.
9 For further discussion, see Jean-Flavien Lalive, ‘Quelques remarques sur la preuve devant la Cour permanente et la
Cour internationale de Justice’ (1950) 7 Annuaire suisse de droit international 77, 79.
10 The Rules of Court are available at http://www.icj-cij.org/documents/index.php?p1=4&p2=3&p3=0.
11 See eg, case concerning Rights of Nationals of the United States of America in Morocco, I.C.J. Pleadings, vol II at 431; Corfu
Channel case, I.C.J. Pleadings, vol IV at 428 and vol V at 255; Case of the Monetary Gold Removed from Rome in 1943, Order of
November 3rd, 1953, I.C.J. Reports 1953, p 44; the Ambatielos case, I.C.J. Pleadings at 346 and 566. For further discussion, see
Shabtai Rosenne and Yaël Ronen, The Law and Practice of the International Court, 1920-2005 (vol III, 4th revised edn,
Leiden, Martinus Nijhoff, 2006) 1120 and ibid, chapter 21, para III.324 n 129.
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to entrust ‘any individual, body, bureau, commission, or other organization that it may select, with
the task of carrying out an enquiry or giving an expert opinion’.12 It should also be mentioned that
the statutory and procedural framework governing proceedings before the Court enables parties to
call witnesses – including expert witnesses – which may in turn be cross-examined.
In fact, testimonial evidence – including in the form of expert witnesses – was very much a
part of two recent oral proceedings before the Court: First, in the dispute concerning Whaling in the
Antarctic opposing Australia and Japan, which was heard from late-June to mid-July 2013; and
second, in the case concerning the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Croatia v. Serbia), which was heard in March and early-April 2014. What is more,
these two proceedings involved intricate factual complexes – in one case the consideration of highly
scientific evidence and in the other alleged violations of the Genocide Convention during the conflict in
the Balkans – along with important stakes for both the interpretation of the Genocide Convention and
the protection of the environment and conservation of living resources. In many ways, the former
case constituted an additional illustration of the Applicant’s willingness to submit a fact-intensive
and science-heavy dispute to the Court for adjudication, thereby entrusting it with the assessment of
sophisticated evidentiary records, much in the vein of the scientifically complex case concerning Pulp
Mills on the River Uruguay.13
The dispute brought to the Court in 2008 concerning Aerial Spraying (Ecuador v Colombia) had
similarly involved voluminous scientific and testimonial evidence (primarily in the form of highly
complex scientific reports and witness statements), which the Court had begun to absorb and digest
in preparation of the oral hearings up until the case was withdrawn by Ecuador, just a few weeks
prior to the commencement of those hearings. In a welcome development, the Parties settled the
case prior to the hearings, while also openly acknowledging the Court for its hard work and
12 For different views on the Court’s fact-finding function in different eras, see Ruth Teitelbaum, ‘Recent Fact-Finding
Developments at the International Court of Justice’ (2007) 6 The Law and Practice of International Courts and Tribunals: A
Practitioner’s Journal 119; Daniel Joyce, ‘Fact-Finding and Evidence at the International Court of Justice: Systemic Crisis,
Change or More of the Same? (2007) 18 Finnish Yearbook of International Law 283; Neil Alford Jr, ‘Fact Finding by the
World Court’ (1958) 4 Villanova Law Review 38.
13 For further discussion on the Court’s treatment of scientific evidence, see Anna Riddell, ‘Scientific Evidence in the
International Court of Justice – Problems and Possibilities’ (2009) 20 Finnish Yearbook of International Law 229; Juan
Sandoval Coustasse and Emily Sweeney-Samuelson, ‘Adjudicating Conflicts Over Resources: The ICJ’s Treatment of
Technical Evidence in the Pulp Mills Case’ (2011) 3 Goettingen Journal of International Law 447.
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dedication in the case, which they considered to have been indispensable in reaching their
settlement.
The Court rendered its judgment on 31 March 2014 in the abovementioned case concerning
Whaling in the Antarctic.14 As the judgment demonstrates, this precedent constitutes further and
incontrovertible proof that the Court can deal with vast amounts of highly technical and scientific
evidence in a cogent and methodical fashion, invariably delivering judgments of exemplary rigour
characterised by their analytical clarity. Similarly, on 3 February 2015 the Court delivered its
judgment in the case concerning the Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Croatia v. Serbia). Unsurprisingly, the voluminous testimonial evidence adduced in
the context of the Parties’ written and oral submissions, which included some in camera witness
sessions during the oral hearings, again played an important role in establishing the factual record
before the Court.
While parties appearing before the Court are afforded a wide margin of freedom as regards
the submission of evidence, the Statute nonetheless requires that all evidentiary elements the parties
intend on using to support their claims be presented in the course of the written proceedings, and
according to the modalities prescribed by the Rules of Court. This essentially means that those
documents must be annexed to the written pleadings. Thus, the overarching guideline – perhaps in
an effort to replace or replicate some aspects of the ‘discovery’ process sometimes followed in
domestic judicial settings – is that of full disclosure of the evidence at the written stage of the
proceedings.15 In some instances, a party may attempt to produce a new evidentiary element after the
conclusion of the written proceedings, during the oral phase, or refer during its oral statement to the
contents of a document that has not been produced during the written proceedings. The Court is
increasingly confronted by this type of litigation strategy.
14 For the text of the judgment, see Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment, I.C.J. Reports
2014, p 226.
15 For further discussion on the concept of ‘discovery’ in international legal proceedings, see generally: Ali Marossi, ‘The
Necessity for Discovery of Evidence in the Fact-Finding Process of International Tribunals’ (2009) 26 Journal of
International Arbitration 511; Martin Davies, ‘Evidence, Documents and Preliminary Discovery in International Litigation’
(1996) 26 University of Western Australia Law Review 286; David Robinson, ‘Compelling Discovery and Evidence in
International Litigation’ (1984) 18 The International Lawyer 533.
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In that regard, the Rules of Court are rather straightforward, at least in principle: ‘After the
closure of the written proceedings, no further documents may be submitted to the Court by either
party except with the consent of the other party’. Unsurprisingly, the Rules of Court enable the
Court to authorise the production of such documents after hearing the parties. In the second
scenario considered earlier, whereby reference is made by a party to the contents of a previously
unproduced document, such evidentiary item may be admitted if it ‘is part of a publication readily
available’.
This last cas de figure arose in one of the Court’s most recent judgments on sovereignty and
maritime delimitation opposing Nicaragua and Colombia, dealing both with sovereignty over certain
maritime features located in the Western Caribbean Sea and the delimitation of an international
maritime boundary in that area. In its judgment of November 2012, the Court pointed out that the
Parties had provided judges’ folders during the oral proceedings, as is customary in litigation before
the World Court.16 Referring to its Statute, the Court further noted that Nicaragua had included two
documents in one of its judges’ folders which had not been annexed to the written pleadings and
were not ‘part of a publication readily available’.17 Consequently, the Court decided not to allow
those documents to be produced or referred to during the hearings.18
It is also interesting to underscore that the Court recently adopted a new practice direction
for States appearing before it in relation to this type of evidence, with a view to governing the
introduction of new, or previously unproduced, audio-visual or photographic material at the oral
proceedings stage.19 Among other things, the new Practice Direction IXquater directs the requesting
State – that is to say, the State intending on producing the new evidentiary item or referring to the
previously unpublished material – to make its intention sufficiently known, and in advance of the
date on which it wishes to present the material. The provision further requires the requesting State
to provide reasons for the request and directs it to comply with other modalities spelled out in the
new practice direction.
16 Territorial and Maritime Dispute (Nicaragua v Colombia), Judgment, I.C.J. Reports 2012, p 624 at 632, para 13.
17 Ibid.
18 Ibid.
19 See the Court’s Press Release titled ‘The Court adopts Practice Direction IXquater for use by States’, dated 11 April
2013, available at http://www.icj-cij.org/presscom/files/6/17296.pdf.
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III. ADMISSIBILITY OF EVIDENCE – SELECT EXAMPLES
As regards admissibility of evidence, generally, the Statute and Rules of Court do not lay
down any major restrictions. In principle, the permissive nature of the evidentiary framework
governing proceedings before the Court allows parties to submit virtually any form or type of
evidence they see fit, with the caveat that the Court enjoys unfettered freedom in weighing it against
the circumstances of each case and by reference to relevant international legal rules.20 Amongst
limited exceptions of inadmissible evidence before the Court, unlawfully obtained proof may
obviously be excluded from the purview of what is acceptable, as was emphasised by the Court in its
seminal Corfu Channel decision.21 In 1946, two British warships struck mines while passing through
the Corfu Channel between Albania and Greece, resulting in the destruction of the ships and
significant loss of life. The United Kingdom submitted the dispute to the Court against Albania and
contended that Albania had incurred international responsibility for the mines laid in the strait,
primarily because it had failed to warn the Applicant State of the presence of those mines.
Subsequently, British minesweepers scoured the Corfu Channel without the assent of Albania,
ultimately attempting to produce the mines it had collected in its sweeping operation before the
World Court as evidence of Albania’s responsibility. In this regard, the Court characterised the
United Kingdom’s justification for its own conduct as a ‘special application of the theory of
intervention, by means of which the State intervening would secure possession of evidence in the
territory of another State, in order to submit it to an international tribunal and thus facilitate its
task’.22
20 See eg, Aguilar Mawdsley, above note 2 at 539.
21 On the practice of the Court and international tribunals – with some reference to the Corfu Channel case – as regards
the question of admissibility of evidence unlawfully obtained, see eg, W. Michael Reisman and Eric Freedman, ‘The
Plaintiff’s Dilemma: Illegally Obtained Evidence and Admissibility in International Adjudication’ (1982) 76 AJIL 737.
For a more recent book-length treatment of fraudulent evidence before international tribunals, with special reference to
four ICJ cases, see W. Michael Reisman and Christina Skinner, Fraudulent Evidence before Public International Tribunals: The
Dirty Stories of International Law (Cambridge, Cambridge University Press, 2014). In particular, chapters 3, 4, 5 and 8 of
this recent monograph address evidentiary issues related to the Corfu Channel, Tunisia/Libya, Nicaragua v United States, and
Qatar v Bahrain cases. Interestingly, the parties’ conduct as regards evidentiary matters in the case concerning Military and
Paramilitary Activities in and against Nicaragua has been divisive in the literature. In one instance, it pitted an eminent former
Member of the Court against a distinguished counsel over the production and presentation of evidence in that case.
Both individuals were involved in the original proceedings related to that case. See Stephen Schwebel, ‘Celebrating a
Fraud on the Court’ (2012) 106 AJIL 102; Paul Reichler, ‘The Nicaragua Case: A Response to Judge Schwebel’ (2012)
106 AJIL 316; Stephen Schwebel, ‘The Nicaragua Case: A Response to Paul Richler’ (2012) 106 AJIL 582; Paul Reichler,
‘Paul Reichler’s Rejoinder’ (2012) 106 AJIL 583.
22 Corfu Channel Case, Judgment of April 9th, 1949, I.C.J. Reports 1949, p 4 at 34.
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The Court rejected this line of defence, thereby inevitably equating the ‘alleged right of
intervention’ with the ‘manifestation of a policy of force, such as has, in the past, given rise to the
most serious abuses’, and ultimately expounding that this line of reasoning ‘cannot, whatever be the
present defects in international organizations, find a place in international law’.23 The Court went on
to point out that ‘[i]ntervention [was] perhaps still less admissible in the particular form it would
[have] take[n]’ in the case before it, revealing itself alive to the concern that ‘from the nature of
things, it would be reserved for the most powerful States, and might easily lead to perverting the
administration of international justice itself’.24 The Court remained equally unpersuaded by the
United Kingdom’s attempts to classify its conduct as falling under the rubric of ‘self-protection or
self-help’. In this regard, the Court emphasized that ‘[b]etween independent States, respect for
territorial sovereignty is an essential foundation of international relations’.25 While the Court
acknowledged that Albania had completely failed in fulfilling its duties after the explosions and had
engaged in dilatory tactics through its diplomatic notes, which both constituted extenuating
circumstances as regards the United Kingdom’s conduct, the Court nonetheless deemed it necessary
‘to ensure respect for international law’ and ‘declare that the action of the British Navy constituted a
violation of Albanian sovereignty’.26 It should be recalled that, ultimately, the Court admitted the
evidence obtained through conduct that violated international law given that, in the case at hand,
Albania had failed to raise any objections as to the admissibility of the proof obtained.27 However, as
mentioned above, the Court did so while admonishing the United Kingdom for its unlawful actions.
Understandably, this jurisprudential precedent has prompted some leading scholars to conclude that
the Court did not purport to lay down an exclusionary rule as to the admissibility of evidence
obtained unlawfully.28
23 Ibid, at 35.
24 Ibid.
25 Ibid.
26 Ibid.
27 For academic commentary on this aspect of the case, see eg, N.H. Shah, ‘Discovery by Intervention: The Right of a
State to Seize Evidence Located within the Territory of the Respondent State’ (1959) 53 AJIL 595, 606; Thomas Franck,
Fairness in International Law and Institutions (Oxford, Clarendon Press, 1995) 336. For further discussion of possible
reasons why the Court admitted the evidence, see Markus Benzing, ‘Evidentiary Issues’ in Andreas Zimmermann et al
(eds), The Statute of the International Court of Justice: A Commentary (2nd ed, Oxford, Oxford University Press, 2012) 1234-75,
1243.
28 See eg, Kazazi, Burden of Proof, above note 1 at 206. See also: Hugh Thirlway, ‘Dilemma or Chimera? – Admissibility of
Illegally Obtained Evidence in International Adjudication’ (1984) 78 AJIL 622, 641 (opining that the approach espoused
by the Court in Corfu Channel was ‘both rational in itself and more in harmony with the fundamental nature and powers
of international tribunals than any exclusionary rule would be’).
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Thus, the Court does not operate on the basis of any preliminary evidentiary filter to weed
out inadmissible evidence at the outset; rather, the Court possesses a wide margin of appreciation in
ascribing different weight to different evidentiary elements originating from varied sources. This
component of the Court’s judicial function is set into motion once the evidence has been entered
into the written record. As a result, the issues of the weight to be attributed to, and evaluation of, the
evidence in any given case before the Court replaces the perhaps more familiar rules on the
admissibility of evidence prevalent before most domestic tribunals.
It follows that forms of evidence typically excluded in domestic judicial proceedings, such as
hearsay evidence (preuve par ouï-dire), are not inadmissible before the World Court although the Court
ascribes little or no weight to such evidentiary elements. As regards hearsay evidence, for instance,
the Court indicated in its oft-cited judgment in the Military and Paramilitary Activities in and against
Nicaragua case that, ‘[n]or is testimony of matters not within the direct knowledge of the witness, but
known to him only from hearsay, of much weight’.29 In the abovementioned Corfu Channel decision,
the Court emphatically set aside hearsay evidence on the basis that it amounted to ‘allegations falling
short of conclusive evidence’.30
Similarly, the primary instruments governing the Court’s treatment of evidence do not
distinguish between public and private documents, nor do they impose a so-called ‘best evidence
rule’ under which, where possible, original documents would have to be produced in lieu of
photostats or certified copies.31 It follows that no official hierarchy is established in the Court’s
evidentiary framework between different types of evidence. As a consequence, the submission of
oral evidence is in no way excluded or limited by the documentary evidence, while the Court remains
unfettered in its ability to determine the probative value of any type of evidence presented to it.
29 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, I.C.J.
Reports 1986, p 14 at 42, para 68. On the implications of the case concerning Military and Paramilitary Activities in and against
Nicaragua for evidentiary practice in international law, see Paul Reichler, ‘The Impact of the Nicaragua Case on Matters of
Evidence and Fact-Finding’ (2012) 25 Leiden Journal of International Law 149.
30 Corfu Channel, above note 22 at 17. See also: Rosenne and Ronen, above note 11 at 558 (highlighting that the Court will
typically exclude hearsay evidence, which they describe as ‘evidence attributed by the witness or deponent to third parties
of which the Court has received no personal and direct confirmation’, and further adding that ‘[s]tatements of this kind
will be regarded as “allegations” falling short of conclusive evidence’).
31 See eg, Aguilar Mawdsley, above note 2 at 540.
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By way of example, the Court is often called upon to weigh the evidentiary value of reports
prepared by official or independent bodies, which provide accounts of relevant events. This is
particularly true in fact-intensive disputes, such as those taking root against the backdrop of armed
conflict, as was the case in both the Bosnian Genocide case, opposing Bosnia Herzegovina and Serbia
and Montenegro, and the Armed Activities case, opposing the Democratic Republic of the Congo
(‘DRC’) and Uganda. In the Bosnian Genocide case, the Court indicated that the probative value of this
type of evidence will hinge:
among other things, on (1) the source of the item of evidence (for instance partisan, or
neutral), (2) the process by which it has been generated (for instance an anonymous press
report or the product of a careful court or court-like process), and (3) the quality or character
of the item (such as statements against interest, and agreed or uncontested facts).32
It is not unusual for the Court to attribute prima facie weight to factual statements made by
the principal organs of the UN, although the actual weight afforded to such items may vary. As a
result, such evidence may well be afforded ‘prima facie superior credibility’ since it may originate in
the statement(s) of what the Court has termed a ‘disinterested witness’ in the Military and Paramilitary
Activities in and against Nicaragua case, that is to say ‘one who is not a party to the proceedings and
stands to gain or lose nothing from its outcome’.33 What is more, those types of reports or factual
statements emanating from UN organs are often produced by UN commissions of inquiry,
peacekeeping missions or other subsidiary organs, and are inspired by direct knowledge and
involvement with the situation on the field or stem from an international consensus of States
regarding the occurrence of certain events. Those evidentiary items are sometimes instrumental in
bolstering the Court’s findings of fact.
For instance, factual statements made by the principal UN organs, particularly evidentiary
items submitted to the Court by the UN Secretary-General, were afforded considerable weight in the
advisory proceedings on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian
32 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and
Montenegro), Judgment, I.C.J. Reports 2007 (I), p 43 at 135, para 227.
33 Military and Paramilitary Activities in and against Nicaragua, above note 29 at 43, para 69.
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Territory.34 Similar treatment was granted to comparable pieces of evidence in the abovementioned
Bosnian Genocide case, with the Court drawing extensively from a report submitted to the General
Assembly by the Secretary-General entitled ‘The Fall of Srebrenica’. Having noted the privileged
vantage point of the Secretary-General in preparing a comprehensive report some time after the
relevant events had transpired, the Court went on to declare that ‘[t]he care taken in preparing the
report, its comprehensive sources and the independence of those responsible for its preparation all
lend considerable authority to it … the Court has gained substantial assistance from this report’.35
By contrast, the Armed Activities case provided a more mixed precedent of evidence
assessment by the Court. In bolstering its factual findings, especially the determination that there
was ‘clear evidence of the fact that Uganda established and exercised authority in Ituri as an
occupying Power’, the Court relied, among other documents, on the Sixth Report of the Secretary-
General on the UN Mission in the DRC that confirmed that the Uganda People’s Defence Force
(‘UPDF’) ‘was in effective control in Bunia (capital of Ituri district)’.36 Along similar lines, the Court
cited ‘reports from credible sources’, including the Third Report of the Secretary-General on the UN
Mission in the DRC, to bolster its finding that ‘massive human rights violations and grave breaches
of international humanitarian law were committed by the UPDF on the territory of the DRC’.37 In
other parts of its judgment, the Court also invoked Security Council pronouncements to support its
findings as to the UPDF’s military operations and movements in the DRC, which it saw as violating
both the sovereignty of that State and the prohibition on the use of force enshrined in the UN
Charter.38 This evidentiary practice by the Court – namely to refer to both preambular and operative
paragraphs of Security Council resolutions – is somewhat common, having cemented the reasoning
for its factual assertions in other portions of this judgment and in other decisions as well.
34 See generally: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J.
Reports 2004, p 136. For further scholarly discussion of the weight to be afforded by the Court to factual qualifications
made by principal organs of the UN, see Katherine Del Mar, ‘Weight of Evidence Generated through Intra-Institutional
Fact-finding before the International Court of Justice’ (2011) 2 Journal of International Dispute Settlement 393.
35 Bosnian Genocide case, above note 32 at 137, para 230.
36 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, I.C.J. Reports 2005, p 168 at
230, paras 175-76.
37 Ibid at 239, para 207.
38 See eg, Ibid at paras 92-165.
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Furthermore, relying again on the Sixth Report of the Secretary-General on the UN Mission
in the DRC mentioned earlier among other evidence, the Court found that it was confronted with
‘persuasive evidence that the UPDF incited ethnic conflicts and took no action to prevent such
conflicts in Ituri district’.39 On the basis of similar documents, the Court further considered that it
was faced with ‘convincing evidence of the training in UPDF training camps of child soldiers and of
the UPDF’s failure to prevent the recruitment of child soldiers in areas under its control’.40
However, in another portion of its judgment, the Court did not afford any weight to various
evidentiary items, including a report generated by the Secretary-General on the UN Mission in the
DRC in finding that the Mouvement de libération du Congo had not been instituted by Uganda, observing
that document’s ‘reliance on second-hand reports’.41
In sum, various kinds of evidence may be introduced by parties appearing before the Court,
subject to both the evidentiary parameters we have outlined earlier and the Court’s wide margin of
appreciation in determining the probative value of each item of evidence. As such, maps,
photographs, small scale models, bas relief, recordings, films, video tapes and, more generally, all
audio-visual techniques of presentation are admissible in the evidentiary realm of the World Court.
Interestingly, Norway presented a relatively large-scale bas relief of Norway during the oral
proceedings in the Anglo-Norwegian Fisheries case; a similar piece of evidence was also introduced in
the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya). In the abovementioned
Anglo-Norwegian Fisheries case, Norway introduced a model of a trawler, fully equipped with a trawl
and other fishing equipment; in the Preah Vihear Temple case – on which the Court heard the Parties
again in April 2013, 52 years later, this time in the context of a request for interpretation – the judges
that heard the original case in 1961 attended a private screening of a film about the dispute, as
evidence, with representatives of the Parties; in the Gabčíkovo–Nagymaros Project case, the use of video
cassette evidence was permitted by the Court; similarly, the use of aerial photographs and satellitegenerated
imagery as evidence is also very common in proceedings before the Court, as illustrated by
39 Ibid at 240, para 209.
40 Ibid at 240, para 210.
41 Ibid at 225, para 159.
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the recent proceedings in the Maritime Dispute between Peru and Chile and in the Territorial and
Maritime Dispute between Nicaragua and Colombia.42
Needless to say, maps play an important role in the evidentiary strategies put forward by
parties appearing before the Court, especially in boundary disputes and maritime delimitation cases.43
That said, such evidentiary items are typically insufficient, in and of themselves, to establish a party’s
claim as to sovereignty over a certain land territory or maritime feature(s). In its judgment in the
Territorial and Maritime Dispute between Nicaragua and Colombia, the Court recalled that according to
its ‘constant jurisprudence, maps generally have a limited scope as evidence of sovereign title’.44 In
bolstering its conclusion, the Court quoted from its 1986 decision in the Frontier Dispute between
Burkina Faso and Mali, stressing that ‘of themselves, and by virtue solely of their existence, [maps]
cannot constitute a territorial title, that is, a document endowed by international law with intrinsic
legal force for the purpose of establishing territorial rights’.45
IV. SELECT SUBSTANTIVE PRONOUNCEMENTS BY THE COURT ON EVIDENTIARY MATTERS
This last observation leads into the last section of our chapter, which shall devote some
attention to select substantive pronouncements made by the Court on the subject of evidence. At
the outset, we should point out that the rule of thumb with respect to the burden of proof before
the Court – often reiterated in its jurisprudence – resembles that found in most domestic judicial
proceedings on civil matters: A party alleging a fact typically bears the burden of proving it, while the
usual standard of proof tends to align with ‘proof by a preponderance of the evidence’.46
42 See eg, Evensen, above note 1 at 53-54; Aguilar Mawdsley, above note 2 at 547 (also pointing out that the Netherlands
introduced a bas relief and a model of lock-gate as evidence in the Diversion of Water from the River Meuse case before the
PCIJ, and that aerial photographs were introduced by Nauru in its case against Australia concerning Certain Phosphate
Lands in Nauru).
43 For further scholarly discussion of the role of maps in frontier disputes, see Maurice Kamto, ‘Le matériau
cartographique dans les contentieux frontaliers et territoriaux internationaux’ in Emile Yakpo and Tahar Boumedra
(eds), Liber Amicorum Judge Mohammed Bedjaoui (The Hague, Kluwer Law International, 1999) 371-98.
44 Nicaragua v Colombia, above note 16 at 661, para 100.
45 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p 554 at 582, para 54.
46 In its jurisprudence, the Court has often reiterated the general rule according to which a party that alleges a fact in
support of its claims is expected to prove the existence of that fact. See eg, Ahmadou Sadio Diallo (Republic of Guinea v
Democratic Republic of the Congo), Merits, Judgment, I.C.J. Reports 2010, p 639 at 660, para 54; Application of the Interim Accord of
13 September 1995 (the former Yugoslav Republic of Macedonia v Greece), Judgment of 5 December 2011, I.C.J. Reports 2011, p 644 at
668, para 72; Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, I.C.J. Reports 2010 (I), p 14 at 71, para 162;
Maritime Delimitation in the Black Sea (Romania v Ukraine), Judgment, I.C.J. Reports 2009, p 61 at 86, para 68. On the burden
of proof and the evidentiary practice of the Court, see also Sir Arthur Watts, ‘Burden of Proof, and Evidence before the
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While this evidentiary principle was reaffirmed in the Diallo case, the Court nonetheless
qualified its application by declaring that ‘it would be wrong to regard this rule, based on the maxim
onus probandi incumbit actori, as an absolute one, to be applied in all circumstances’.47 The Court went
on to clarify that the onus will vary based on the type of facts required to ensure the resolution of
the case; in other words, the subject-matter and the nature of each dispute submitted to the Court
will inform and ultimately dictate the determination of the burden of proof in any given case.48 It
should be recalled that in the Diallo case, the Republic of Guinea was arguing that Mr. Diallo – its
national – had suffered several fundamental human rights violations while in the DRC. However,
strict adherence to the abovementioned rule would have engendered significant evidentiary hurdles
to the Republic of Guinea’s case in establishing these violations, which were equated with ‘negative
facts’ given that they had occurred in the Respondent’s State, and the DRC was therefore better
situated to adduce evidence about its compliance with the relevant obligations.
The Court provided further clarification as regards the modulated application of the burden
of proof in situations involving the establishment of negative facts, while affording equal
consideration to the corresponding implications for the case of the DRC. The Court declared that:
… where, as in these proceedings, it is alleged that a person has not been afforded, by a
public authority, certain procedural guarantees to which he was entitled, it cannot as a
general rule be demanded of the Applicant that it prove the negative fact which it is
asserting. A public authority is generally able to demonstrate that it has followed the
appropriate procedures and applied the guarantees required by law — if such was the case
— by producing documentary evidence of the actions that were carried out. However, it
cannot be inferred in every case where the Respondent is unable to prove the performance
of a procedural obligation that it has disregarded it: that depends to a large extent on the
precise nature of the obligation in question; some obligations normally imply that written
documents are drawn up, while others do not. The time which has elapsed since the events
must also be taken into account.49
This type of scenario was not completely novel for the Court. In the past, it had been
confronted with similar situations where one of the parties appearing before it had exclusive access
ICJ’ in Freidl Weiss (ed), Improving WTO Dispute Settlement Procedures: Issues and Lessons from the Practice of other International
Courts and Tribunals (London, Cameron May, 2000) 289-301.
47 Ahmadou Sadio Diallo, above note 46 at 660-61, para 54.
48 Ibid.
49 Ibid at 660-61, para 55.
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to important evidentiary elements but refused to produce them in light of security concerns or other
reasons. For instance, in the seminal Corfu Channel case, the Court resolved this dilemma by having
recourse to flexible inferences of fact against the State which had refused to produce the evidence in
question;50 by contrast, in the Bosnian Genocide case the Court declined to do so, thereby confirming
that its approach to circumstantial evidence and adverse inferences will vary depending on the
subject-matter and circumstances of each dispute brought to it.51
When parties invoke domestic law before the Court, such item is typically equated with a
fact to be proven by the party alleging its existence, notwithstanding the Court’s ability to satisfy
itself, of its own initiative, of the existence of such fact. This evidentiary practice is firmly rooted in
the jurisprudence of the Court’s predecessor institution, with the PCIJ having articulated several key
aspects of procedural law which still govern the work of the present-day Court. Of particular
importance was the PCIJ’s pronouncement in the case concerning Certain German Interests in Polish
Upper Silesia, when it underscored that ‘[f]rom the standpoint of International Law and of the Court
which is its organ, municipal laws are merely facts which express the will and constitute the activities
of States, in the same manner as do legal decisions or administrative measures’.52 Echoing these
remarks three years later in the Brazilian Loans case, the PCIJ further pointed out that it was
constrained to apply domestic law when the circumstances so warranted, but that it was not obliged
to possess knowledge of the various municipal laws of States; rather, it would have to secure this
knowledge when the circumstances of a case compelled it to apply municipal law. More importantly
for our purposes, the PCIJ stressed that ‘this it must do, either by means of evidence furnished to it
50 In that case, the Court underscored the following:
‘[T]he fact of this exclusive territorial control exercised by a State within its frontiers has a bearing upon the
methods of proof available to establish the knowledge of that State as to such events. By reason of this exclusive
control, the other State, the victim of a breach of international law, is often unable to furnish direct proof of facts
giving rise to responsibility. Such a State should be allowed a more liberal recourse to inferences of fact and
circumstantial evidence. This indirect evidence is admitted in all systems of law, and its use is recognized by
international decisions. It must be regarded as of special weight when it is based on a series of facts linked
together and leading logically to a single conclusion.’
See Corfu Channel, above note 22 at 182.
51 For a general discussion on this subject, see Michael Scharf and Margaux Day, ‘The International Court of Justice’s
Treatment of Circumstantial evidence and Adverse Inferences’ (2012) 13 Chicago Journal of International Law 123;
Chittharanjan Felix Amerasinghe, ‘Presumptions and Inferences in Evidence in International Litigation’ (2004) 3 The
Law and Practice of International Courts and Tribunals 395.
52 Case concerning Certain German Interests in Polish Upper Silesia, Merits, 1926 PCIJ (ser A) No 7 (25 May) at 19.
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by the Parties or by means of any researches which the Court may think fit to undertake or to cause
to be undertaken’.53
By contrast, there is a presumption – jura novit curia – that the Court knows international law
and how to apply it, despite the usual efforts deployed by disputing parties appearing before the
Court to demonstrate that relevant international legal principles support their own claims, or should
be construed in a certain way. One manifestation of this principle was encapsulated aptly in the
famous Lotus case, with the PCIJ observing:
that in the fulfilment of its task of itself ascertaining what the international law is, it has not
confined itself to a consideration of the arguments put forward, but has included in its researches
all precedents, teachings and facts to which it had access and which might possibly have revealed
the existence of one of the principles of international law contemplated in the special
agreement.54
Needless to say, this principle – namely that the Court is expected to know international law
– is equally applicable to proceedings instituted before it on a different jurisdictional basis than by
way of special agreement (compromis).
Similarly, the Court may take judicial notice of well-established facts – faits notoires or ‘matters
of public knowledge’ – thereby obviating the need for parties appearing before it to prove such
types of facts. Such scenario presented itself in the Tehran Hostages case, where the Court was called
upon to pronounce on the international responsibility of Iran after an American embassy in Iran was
taken over, ransacked and its personnel sequestered by Iranian student militants. The Court declared
that ‘[t]he essential facts of the present case are, for the most part, matters of public knowledge
which have received extensive coverage in the world press and in radio and television broadcasts
from Iran and other countries’.55 It went on to hold that ‘[t]he information available … [was] wholly
consistent and concordant as to the main facts and circumstances of the case’.56 This exact passage
53 Case concerning the Payment in Gold of Brazilian Federal Loans Contracted in France, 1926 PCIJ (ser A) No 21 (12 July) at 124.
54 The Case of the S.S. ‘Lotus’ (France v Turkey), 1927 PCIJ (ser A) No 10 (7 September) at 31.
55 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p 3 at 9, para 12. After all, one must
always bear in mind the conclusion reached by Max Huber in the Island of Palmas case, in which he considered that no
evidence was required to establish the existence of the Treaty of Utrecht of 1714, which was of public notoriety. See The
Island of Palmas Arbitration, 4 April 1928, 2 Reports of International Arbitral Awards 829, 842.
56 Tehran Hostages case, above note 55 at 10, para 13.
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was referenced again by the Court six years later in its judgment in the Military and Paramilitary
Activities in and against Nicaragua case. However, in that instance the Court remained alive to the fact
that this type of evidence should be approached with ‘particular caution’, pointing to the risk that
‘[w]idespread reports of a fact may prove on closer examination to derive from a single source’.57
This observation echoed remarks formulated earlier by the Court in that same judgement to the
effect that such evidence should be treated with ‘great caution’; in short, the Court construed such
evidentiary items ‘not as evidence capable of proving facts, but as material which can nevertheless
contribute, in some circumstances, to corroborating the existence of a fact’.58 It should be stressed
that the Court’s conclusion on this front remained unaffected by the fact that such evidence might
‘seem to meet high standards of objectivity’.59
In the wake of increasingly fact-intensive cases, with particular focus on scientific evidence,
there has been renewed interest in questions related to the burden of proof before the Court. Such
an issue arose in the case concerning Pulp Mills on the River Uruguay. In that case, the Court was
confronted with a considerable amount of contradictory factual allegations, which both Parties
sought to support with particularly abundant information. Argentina contended that the relevant
Statute adopted a precautionary approach according to which ‘the burden of proof will be placed on
Uruguay for it to establish that the Orion (Botnia) mill will not cause significant damage to the
environment’.60 Argentina argued further that the onus should be shared by both Parties as
prescribed by the Statute under review, which divided the burden of persuasion amongst the parties;
that is to say that one should prove that the plant is innocuous while the other should demonstrate
that it is harmful. In response, the Court relied again on its jurisprudence constante and reaffirmed the
importance of the principle of onus probandi incumbit actori in the following manner: ‘it is the duty of
the party which asserts certain facts to establish the existence of such facts’.61
57 Military and Paramilitary Activities in and against Nicaragua, above note 29 at 41, para 63.
58 Ibid at 40, para 62.
59 Ibid.
60 Pulp Mills, above note 46 at 70, para 160.
61 Ibid at 71, para 162. See also, above note 46-49 and accompanying text; Sovereignty over Pedra Branca/Pulau Batu Puteh,
Middle Rocks and South Ledge (Malaysia/Singapore), Judgment, I.C.J. Reports 2008, p 12 at 31, para 45; Bosnian Genocide case,
above note 32 at 128, para 204; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p 392 at 437, para 101.
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In short, this meant that the Applicant – Argentina in this specific case – was expected to
first submit the relevant evidence to substantiate its claims. However, the Court continued, ‘[t]his
[did] not … mean that the Respondent should not co-operate in the provision of such evidence as
may be in its possession that could assist the Court in resolving the dispute’.62 The Court further
expressed that, while a precautionary approach may deem a relevant prism through which one could
contemplate the relevant statutory provisions, this legislative framework did not operate a reversal of
the burden of proof, nor did it place it equally on both Parties.63
With respect to the expert evidence put forward, the Court stressed that it had ‘given most
careful attention to the material submitted to it by the Parties’ before recalling that it was its
‘responsibility … after having given careful consideration to all the evidence placed before it by the
Parties, to determine which facts must be considered relevant, to assess their probative value, and to
draw conclusions from them as appropriate’.64 In short, the Court’s approach in that case aligned
with its own evidentiary practice, which typically involves it making ‘its own determination of the
facts, on the basis of the evidence presented to it, and then’ applying ‘the relevant rules of
international law to those facts which it has found to have existed’.65 Consequently, the Court
rejected those evidentiary items it found ‘insufficient’, for instance when deciding not to attribute
‘the alleged increase in the level of concentrations of phenolic substances in the river to the
operations of the Orion (Botnia) mill’.66 Similarly, the Court remained unconvinced that there
existed ‘sufficient evidence to conclude that Uruguay breached its obligation to preserve the aquatic
environment including the protection of its fauna and flora’, or that ‘convincing evidence’ had been
adduced to establish that Uruguay had breached certain provisions of the relevant Statute, which
embodied other substantive obligations.67
In the Armed Activities case discussed earlier, the Court provided further substantive guidance
on the evidentiary parameters within which it carries out its judicial mandate. In particular, it
62 Pulp Mills, above note 46 at 71, para 163.
63 Ibid at 71, para 164.
64 Ibid at 72, para 167-68.
65 Ibid at 72-3, para 168.
66 Ibid at 97-8, para 254.
67 Ibid at 91, para 228 and 100, para 262.
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underscored that it ‘will treat with caution evidentiary materials specially prepared for this case and
also materials emanating from a single source’.68 Moreover, the Court indicated that it ‘prefer[s]
contemporaneous evidence from persons with direct knowledge’ of the facts or realities on the
ground.69 It similarly emphasised that it would ‘give particular attention to reliable evidence
acknowledging facts or conduct unfavourable to the State represented by the person making them’,
thereby echoing the remarks it offered almost twenty years earlier in the Military and Paramilitary
Activities in and against Nicaragua judgment.70 Along similar lines, the Court in the Armed Activities case
went on to say that it would ascribe weight to evidence ‘that ha[d] not, even before this litigation,
been challenged by impartial persons for the correctness of what it contain[ed]’.71 Finally, special
attention should also be afforded, the Court continued, to ‘evidence obtained by examination of
persons directly involved, and who were subsequently cross-examined by judges skilled in
examination and experienced in assessing large amounts of factual information, some of it of a
technical nature’.72
V. CONCLUSION
In this brief contribution, we have attempted to demonstrate that the Court’s evidentiary
practice is rather flexible when compared to that espoused by most domestic courts and tribunals.
That said, the World Court nonetheless applies a great degree of caution when handling certain
evidentiary items, rigorously scrutinising all evidence put before it and balancing relevant evidentiary
standards against the facts, circumstances and subject-matter of each case. The Court’s practice is
equally forward-looking as regards the introduction of new modes of producing evidence, thereby
embracing new technology and innovative ways of establishing factual records. A rich fact-finding
judicial tradition emerges from its jurisprudence: While an applicant State appearing before the
Court will typically be called upon to substantiate its claims with available evidence, the other party
is by no means exempted from assisting the Court in fulfilling its judicial function. Rather, the idea
68 Armed Activities case, above note 36 at 201, para 61.
69 Ibid.
70 Ibid; Military and Paramilitary Activities in and against Nicaragua, above note 29 at 41, para 64.
71 Armed Activities case, above note 36 at 201, para 61.
72 Ibid.
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of evidentiary collaboration between the parties and the Court73 – supplemented by a productive
dialogue between the bench and the agents and counsel of the parties, sometimes actuated through
the submission of testimonial evidence before the Court – ensures that the principal judicial organ
of the UN can carry out its noble duties in the most effective and impartial way. That is to say, the
search for objective truth, the peaceful settlement of disputes, and the promotion of the
international rule of law.
73 See eg, Witenberg, above note 1 at 97; Lachs, above note 1 at 267 (both underscoring that parties to a dispute have the
duty to prove their claims and a corresponding obligation to cooperate with the international judiciary in this regard).
Annex 32
Annex 33
“Eighth Pleinary Meeting Between the DR Congo Government and M23”, International
Conference on the Great Lakes Region (11 Jan. 2013)
www.icglr.org
http://www.icglr.org/index.php/en/component/content/article/138-meganew…
Member states Contact us Webmail Faqs Français English
Eighth pleinary meeting between the DRCongo government and M23.
The delegations to the dialogue between the DRC government and the M23 have today 11th January 2013 resumed the talks and held their eighth
plenary session since the dialogue started on gth December 2012.
The two delegations returned to Kampala by the 4th of Jan 2013, thereby sending a strong signal to the world of their unwavering commitment to the
dialogue and to ending the conflict through peaceful means. The four clusters that compose the agenda for the dialogue has been agreed as follows:
a. Review of the Peace Agreement of23 March 2009; b. Security matters; c. Social, Political and Economie matters; d. Mechanisms for the
Implementation - Monitoring and Evaluation of the Kampala Agreement.
Since the return of the delegations to Kampala, the Facilitator has been consulting with the two teams with a view to finding a way forward.
Consequently, the plenary sessions have resumed.
The Facilitator has also been consulting with the leadership of the United Nations and USA with a view to ensuring that the recent sanctions slammed
on M23 do not create negative implications for the dialogue. His understanding now is that these sanctions don’t affect the dialogue.
The dialogue is being facilitated by Dr. Crispus Kiyonga, Minister of Defence of the Republic of Uganda. The DRC govemment delegation is led by H.E
Raymond Tshibanda, Minister of Foreign Affairs, International Cooperation and Francophonie of DRC. The delegation of M23 is led by Mr. François
Rucogoza, Executive Secretary of M23.
The Dialogue has so far attracted observers from Belgium, France, Norway, the United Kingdom of Great Britain and Northem Ireland, the United States
of America,., the African Union, the European Union and MONUSCO.
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Annex 33
Volume II - Annexes