I. ICJ Cases Relating to Violations of Human Rights and International Humanitarian Law, including Genocide, War Crimes and Crimes against Humanity

This is the first in a series of blog posts, categorizing ICJ decisions as it relates to a particular theme, using the summaries provided in the ICJ website. Other themes will include, decisions on maritime time and territorial boundaries, on the use of force, cases where the ICJ refused to exercise its jurisdiction, or where proceedings were discontinued by parties. These summaries are not intended to be comprehensive. It is intended to give an overview on the ICJ’s deliberations in that case, as it relates to the topic. The list is not yet comprehensive, and other cases will continue to be added.

1. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) Judgment of 03 February 2015

Excerpts of the summary provided in the ICJ website:

“On 2 July 1999, Croatia filed an Application against the Federal Republic of Yugoslavia (FRY) “for violations of the Convention on the Prevention and Punishment of the Crime of Genocide”. As basis for the Court’s jurisdiction, Croatia invoked Article IX of that Convention (…)

(NB: The preliminary objections related to the jurisdiction of the Court was dismissed by the Court by its Judgment of 18 November 2008.)

The Court then turned to the merits of the Parties’ claims. It recalled that, under the terms of the 1948 Convention, the crime of genocide contains two constituent elements.

The first is the physical element, namely the acts perpetrated (which are set out in Article II and include, in particular, killing members of the group (subpara. (a)) and causing serious bodily or mental harm to members of the group (subpara. (b))).

The second is the mental element, namely the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such.

Regarding Croatia’s claim, the Court considered that, in the regions of Eastern Slavonia, Western Slavonia, Banovina/Banija, Kordun, Lika and Dalmatia, the JNA and Serb forces had committed acts falling under subparagraphs (a) and (b) of Article II.

Taking the view, however, that it had not been established that the acts reflected a genocidal intent, the Court found that Croatia had not proved that genocide or other violations of the Convention had been committed. It accordingly dismissed the claim in its entirety.

Regarding Serbia’s counter-claim, which was found to be admissible, the Court concluded that, during and after Operation “Storm”, Croatian forces had perpetrated acts falling within paragraphs (a) and (b) of Article II.

Considering, however, that genocidal intent had not been demonstrated, the Court found that neither genocide nor other violations of the Convention had been proved. It accordingly rejected the counter-claim in its entirety.”

 2. Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) Judgment of 20 July 2012

Excerpts of the summary provided in the ICJ website:

“On 19 February 2009, Belgium filed an Application instituting proceedings against Senegal relating to Mr. Hissène Habré, the former President of Chad and resident in Senegal since being granted political asylum by the Senegalese Government in 1990. Belgium submitted that, by failing to prosecute Mr. Habré for certain acts he was alleged to have committed during his presidency, including acts of torture and crimes against humanity, or to extradite him to Belgium, Senegal had violated the so-called obligation aut dedere aut judicare(that is to say, “to prosecute or extradite”) provided for in Article 7 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and in customary international law (…)

With respect to the admissibility of Belgium’s claims, the Court ruled that once any State party to the Convention against Torture was able invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, i.e., obligations owed toward all States parties, Belgium, as a party to the said Convention, had standing to invoke the responsibility of Senegal for the alleged breaches of its obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of that Convention. The Court thus found that Belgium’s claims based on those provisions were admissible (for more on obligations erga omnes, including its relationship to jus cogens, see Koskenniemi’s Fragmentation of International Law(p380 – 409)).

As regards the alleged violation of Article 6, paragraph 2, of the Convention against Torture, which provides that a State party in whose territory a person alleged to have committed acts of torture is present must “immediately make a preliminary inquiry into the facts”, the Court noted that Senegal had not included in the case file any material demonstrating that it had carried out such an inquiry.

The Court further observed that, while the choice of means for conducting the inquiry remained in the hands of the States parties, taking account of the case in question, Article 6, paragraph 2, of the Convention requires that steps must be taken as soon as the suspect is identified in the territory of the State, in order to conduct an investigation of that case. In the present case, the establishment of the facts had become imperative at least since the year 2000, when a complaint was filed in Senegal against Mr. Habré.

Nor had an investigation been initiated in 2008, when a further complaint against Mr. Habré was filed in Dakar, after the legislative and constitutional amendments made in 2007 and 2008, respectively. The Court concluded from the foregoing that Senegal had breached its obligation under the above-mentioned provision.

With respect to the alleged violation of Article 7, paragraph 1, of the Convention against Torture, the Court first examined the nature and meaning of the obligation laid down in that provision. It observed that the obligation to submit the case to the competent authorities for the purpose of prosecution (the “obligation to prosecute”) deriving from that provision was formulated in such a way as to leave it to the said authorities to decide whether or not to initiate proceedings, thus respecting the independence of States parties’ judicial systems: those authorities thus remain responsible for deciding on whether to initiate a prosecution, in the light of the evidence before them and of the relevant rules of criminal procedure.

The Court further observed that the obligation to prosecute requires the State concerned to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect. It noted, however, that, if the State in whose territory the suspect is present has received a request for extradition in any of the cases envisaged in the provisions of the Convention, it may relieve itself of its obligation to prosecute by acceding to that request. It thus concluded that extradition was an option offered to the State by the Convention, whereas prosecution was an international obligation under the Convention, the violation of which was a wrongful act engaging the responsibility of the State.

The Court then turned to the temporal scope of the obligation laid down in Article 7, paragraph 1, of the Convention. It noted in this respect that, while the prohibition of torture was part of customary international law and had become a peremptory norm (jus cogens), the obligation to prosecute the alleged perpetrators of acts of torture under the Convention applied only to facts having occurred after its entry into force for the State concerned.

The Court concluded from the foregoing that Senegal’s obligation to prosecute pursuant to Article 7, paragraph 1, of the Convention did not apply to acts alleged to have been committed before the Convention entered into force for Senegal on 26 June 1987, although there was nothing in that instrument to prevent it from instituting proceedings concerning acts that were committed before that date. The Court found that Belgium, for its part, was entitled, with effect from 25 July 1999, the date when it became party to the Convention, to request the Court to rule on Senegal’s compliance with its obligation under Article 7, paragraph 1, of the Convention.

Finally, the Court examined the question of the implementation of the obligation to prosecute. It concluded that the obligation laid down in Article 7, paragraph 1, required Senegal to take all measures necessary for its implementation as soon as possible, in particular once the first complaint had been filed against Mr. Habré in 2000. Having failed to do so, Senegal had breached and remained in breach of its obligations under Article 7, paragraph 1, of the Convention.

The Court found that, by failing to comply with its obligations under Article 6, paragraph 2, and Article 7, paragraph 1, of the Convention, Senegal had engaged its international responsibility. Therefore, it was required to cease that continuing wrongful act and to take, without further delay, the necessary measures to submit the case to its competent authorities for the purpose of prosecution, if it did not extradite Mr. Habré.”

This is the first in the history of the International Court of Justice (“ICJ”) in which the Court found that a State had standing based on obligations erga omnes partes.

See here, here and here for a summary of the case.

3. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) Judgement 30 November 2010 (merits), Judgement 19 June 2012 (compensation).

Excerpts of the summary provided in the ICJ website:

“On 28 December 1998, Guinea filed an Application instituting proceedings against the Democratic Republic of the Congo (DRC) in respect of a dispute concerning “serious violations of international law” alleged to have been committed upon the person of Mr. Ahmadou Sadio Diallo, a Guinean national. In its Application, Guinea maintained that “Mr. Ahmadou Sadio Diallo, a businessman of Guinean nationality, was unjustly imprisoned by the authorities of the Democratic Republic of the Congo, after being resident in that State for thirty-two (32) years, despoiled of his sizable investments, businesses, movable and immovable property and bank accounts, and then expelled.” (…)”

“In its Judgment of 30 November 2010 on the merits, the Court found that, in respect of the circumstances in which Mr. Diallo had been expelled on 31 January 1996, the DRC had violated Article 13 of the International Covenant on Civil and Political Rights (on rights of aliens lawfully residing in the country relating to expulsion) and Article 12, paragraph 4, of the African Charter on Human and Peoples’ Rights (expulsion of aliens only to be made pursuant to a “decision made according to the law”). The Court also found that, in respect of the circumstances in which Mr. Diallo had been arrested and detained in 1995-1996 with a view to his expulsion, the DRC had violated Article 9, paragraphs 1 and 2, of the Covenant (right to be informed of reasons for arrest) and Article 6 of the African Charter (provisions prohibiting to arbitrary arrest and detention).”

“In addition, the Court found that the DRC had violated Mr. Diallo’s rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations (this provision relates to the rights of foreign national to have consular access following arrest or detention). It did not however order the DRC to pay compensation for this violation.”

“The Court further decided that “the Democratic Republic of the Congo [was] under obligation to make appropriate reparation, in the form of compensation, to the Republic of Guinea for the injurious consequences of the violations of international obligations (…), namely the unlawful arrests, detentions and expulsion of Mr. Diallo.”

4.  Certain Criminal Proceedings in France (Republic of the Congo v. France).

This case is further discussed in another section – for now click here for a summary.

5. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro)  Judgment of 11 July 1996 and Judgment 26 February 2007

Excerpts of the summary provided in the ICJ website:

“On 20 March 1993, the Republic of Bosnia and Herzegovina instituted proceedings against the Federal Republic of Yugoslavia in respect of a dispute concerning alleged violations of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the General Assembly of the United Nations on 9 December 1948, as well as various matters which Bosnia and Herzegovina claimed were connected therewith. The Application invoked Article IX of the Genocide Convention as the basis for the jurisdiction of the Court. Subsequently, Bosnia and Herzegovina also invoked certain additional bases of jurisdiction (…).

(For provisional measures indicated see here)

Judgment of 11 July 1996 (Jurisdiction)

(T) he Court rejected the preliminary objections raised by Yugoslavia and found that it had jurisdiction to deal with the dispute on the basis of Article IX of the Genocide Convention, dismissing the additional bases of jurisdiction invoked by Bosnia and Herzegovina. Among other things, it found that the Convention bound the two Parties and that there was a legal dispute between them falling within the provisions of Article IX (…).

Judgment 26 February 2007 (Merits)

It began by examining the new jurisdictional issues raised by the Respondent arising out of its admission as a new Member of the United Nations in 2001. The Court affirmed that it had jurisdiction on the basis of Article IX of the Genocide Convention, stating in particular that its 1996 Judgment, whereby it found it had jurisdiction under the Genocide Convention, benefited from the “fundamental” principle of res judicata, which guaranteed “the stability of legal relations”, and that it was in the interest of each Party “that an issue which has already been adjudicated in favour of that party be not argued again”.

The Court then made extensive findings of fact as to whether alleged atrocities had occurred and, if so, whether they could be characterized as genocide.

After determining that massive killings and other atrocities were perpetrated during the conflict throughout the territory of Bosnia and Herzegovina, the Court found that these acts were not accompanied by the specific intent that defines the crime of genocide, namely the intent to destroy, in whole or in part, the protected group.

The Court did, however, find that the killings in Srebrenica in July 1995 were committed with the specific intent to destroy in part the group of Bosnian Muslims in that area and that what happened there was indeed genocide. The Court found that there was corroborated evidence which indicated that the decision to kill the adult male population of the Muslim community in Srebrenica had been taken by some members of the VRS (Army of the Republika Srpska) Main Staff.

The evidence before the Court, however, did not prove that the acts of the VRS could be attributed to the Respondent under the rules of international law of State responsibility.

Nonetheless, the Court found that the Republic of Serbia had violated its obligation contained in Article 1 of the Genocide Convention to prevent the Srebrenica genocide. The Court observed that this obligation required States that are aware, or should normally have been aware, of the serious danger that acts of genocide would be committed, to employ all means reasonably available to them to prevent genocide, within the limits permitted by international law

The Court further held that the Respondent had violated its obligation to punish the perpetrators of genocide, including by failing to co-operate fully with the International Criminal Tribunal for the former Yugoslavia (ICTY) with respect to the handing over for trial of General Ratko Mladic. This failure constituted a violation of the Respondent’s duties under Article VI of the Genocide Convention.

In respect of Bosnia and Herzegovina’s request for reparation, the Court found that, since it had not been shown that the genocide at Srebrenica would in fact have been averted if Serbia had attempted to prevent it, financial compensation for the failure to prevent the genocide at Srebrenica was not the appropriate form of reparation.

The Court considered that the most appropriate form of satisfaction would be a declaration in the operative clause of the Judgment that Serbia had failed to comply with the obligation to prevent the crime of genocide.

As for the obligation to punish acts of genocide, the Court found that a declaration in the operative clause that Serbia had violated its obligations under the Convention and that it must transfer individuals accused of genocide to the ICTY and must co-operate fully with the Tribunal would constitute appropriate satisfaction.”

 

6. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda) Judgment, 3 February 2006.

Even if the Court dismissed the case, stating it had no jurisdiction to consider the application by DRC, it recalled, however, that “[w]hether or not States have accepted the jurisdiction of the Court, they are required to fulfil their obligations under the United Nations Charter and the other rules of international law, including international humanitarian and human rights law, and they remain responsible for acts attributable to them which are contrary to international law”.  For a summary of the dispute, see here.

7. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, 9 July 2004. 

Excerpts of the summary provided in the ICJ website:

“(…) (T)he General Assembly decided to request the Court for an advisory opinion on the following question: “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the Report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions ?” The resolution requested the Court to render its opinion “urgently” (…)

The Court began by finding that the General Assembly, which had requested the advisory opinion, was authorized to do so under Article 96, paragraph 1, of the Charter (…) Lastly, the Court rejected the argument that an opinion could not be given in the present case on the ground that the question posed was not a legal one, or that it was of an abstract or political nature. Having established its jurisdiction, the Court then considered the propriety of giving the requested opinion (…) The Court accordingly concluded that there was no compelling reason precluding it from giving the requested opinion. (On these issues that were considered by the Court in detail, prior to giving its opinion, see here paras 13 – 66)

Turning to the question of the legality under international law of the construction of the wall by Israel in the Occupied Palestinian Territory, the Court first determined the rules and principles of international law relevant to the question posed by the General Assembly. After recalling the customary principles laid down in Article 2, paragraph 4, of the United Nations Charter and in General Assembly resolution 2625 (XXV), which prohibit the threat or use of force and emphasize the illegality of any territorial acquisition by such means, the Court further cited the principle of self-determination of peoples, as enshrined in the Charter and reaffirmed by resolution 2625 (XXV).

In relation to international humanitarian law, the Court then referred to the provisions of the Hague Regulations of 1907, which it found to have become part of customary law, as well as to the Fourth Geneva Convention of 1949, holding that these were applicable in those Palestinian territories which, before the armed conflict of 1967, lay to the east of the 1949 Armistice demarcation line (or “Green Line”) and were occupied by Israel during that conflict. The Court further established that certain human rights instruments (International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, United Nations Convention on the Rights of the Child) were applicable in the Occupied Palestinian Territory.

The Court then sought to ascertain whether the construction of the wall had violated the above-mentioned rules and principles.

Noting that the route of the wall encompassed some 80 per cent of the settlers living in the Occupied Palestinian Territory, the Court, citing statements by the Security Council in that regard in relation to the Fourth Geneva Convention, recalled that those settlements had been established in breach of international law. After considering certain fears expressed to it that the route of the wall would prejudge the future frontier between Israel and Palestine, the Court observed that the construction of the wall and its associated régime created a “fait accompli” on the ground that could well become permanent, and hence tantamount to a de facto annexation. Noting further that the route chosen for the wall gave expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements and entailed further alterations to the demographic composition of the Occupied Palestinian Territory, the Court concluded that the construction of the wall, along with measures taken previously, severely impeded the exercise by the Palestinian people of its right to self-determination and was thus a breach of Israel’s obligation to respect that right.

The Court then went on to consider the impact of the construction of the wall on the daily life of the inhabitants of the Occupied Palestinian Territory, finding that the construction of the wall and its associated régime were contrary to the relevant provisions of the Hague Regulations of 1907 and of the Fourth Geneva Convention and that they impeded the liberty of movement of the inhabitants of the territory as guaranteed by the International Covenant on Civil and Political Rights, as well as their exercise of the right to work, to health, to education and to an adequate standard of living as proclaimed in the International Covenant on Economic, Social and Cultural Rights and in the Convention on the Rights of the Child.

The Court further found that, coupled with the establishment of settlements, the construction of the wall and its associated régime were tending to alter the demographic composition of the Occupied Palestinian Territory, thereby contravening the Fourth Geneva Convention and the relevant Security Council resolutions.

The Court then considered the qualifying clauses or provisions for derogation contained in certain humanitarian law and human rights instruments, which might be invoked inter alia where military exigencies or the needs of national security or public order so required. The Court found that such clauses were not applicable in the present case, stating that it was not convinced that the specific course Israel had chosen for the wall was necessary to attain its security objectives, and that accordingly the construction of the wall constituted a breach by Israel of certain of its obligations under humanitarian and human rights law.

Lastly, the Court concluded that Israel could not rely on a right of self-defence or on a state of necessity in order to preclude the wrongfulness of the construction of the wall, and that such construction and its associated régime were accordingly contrary to international law.

The Court went on to consider the consequences of these violations, recalling Israel’s obligation to respect the right of the Palestinian people to self-determination and its obligations under humanitarian and human rights law. The Court stated that Israel must put an immediate end to the violation of its international obligations by ceasing the works of construction of the wall and dismantling those parts of that structure situated within Occupied Palestinian Territory and repealing or rendering ineffective all legislative and regulatory acts adopted with a view to construction of the wall and establishment of its associated régime.

The Court further made it clear that Israel must make reparation for all damage suffered by all natural or legal persons affected by the wall’s construction. As regards the legal consequences for other States, the Court held that all States were under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction.

It further stated that it was for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination be brought to an end. In addition, the Court pointed out that all States parties to the Fourth Geneva Convention were under an obligation, while respecting the Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.

Finally, in regard to the United Nations, and especially the General Assembly and the Security Council, the Court indicated that they should consider what further action was required to bring to an end the illegal situation in question, taking due account of the present Advisory Opinion.

The Court concluded by observing that the construction of the wall must be placed in a more general context, noting the obligation on Israel and Palestine to comply with international humanitarian law, as well as the need for implementation in good faith of all relevant Security Council resolutions, and drawing the attention of the General Assembly to the need for efforts to be encouraged with a view to achieving a negotiated solution to the outstanding problems on the basis of international law and the establishment of a Palestinian State.”

 

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