Hostname: page-component-8448b6f56d-sxzjt Total loading time: 0 Render date: 2024-04-18T02:08:59.662Z Has data issue: false hasContentIssue false
  • English
  • Français

II. Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v Rwanda) Provisional Measures, Order of 1 July 20021

Published online by Cambridge University Press:  17 January 2008

Malcom D Evans  and
Chester Brown
Chester Brown
Affiliation:
St John's College, University of Cambridge.
Get access Rights & Permissions [Opens in a new window]

Extract

Since 1998, a war has ravaged one of Africa's largest countries, the Democratic Republic of the Congo (‘DRC’). Africa's ‘Great War’ is said to have involved nine national armies and an unknown number of militia groups, and has reportedly claimed more lives than any other in the last four years. Estimates of the death toll range from 3 to 3.5 million. On 28 May 2002, the DRC instituted proceedings before the International Court of Justice (‘the Court’) against Rwanda alleging ‘massive, serious and flagrant violations of human rights and international humanitarian law’, and requested certain provisional measures.2 On 10 July 2002, the Court rejected the DRC’s request for provisional measures, as it considered that it did not have prima facie jurisdiction to determine the merits of the case.3 However, the Court also rejected Rwanda's request that the case be removed from the list, as the Court considered that its lack of jurisdiction was not ‘manifest’.4 This note reviews the history of the conflict and the litigation, before considering the DRC's request for provisional measures and the grounds of jurisdiction upon which it sought to rely. The Order is then analysed, and this note concludes that the Court was right to reject the DRC's request, but it should have gone further and removed the case from the list.

Type
Decisions of International Tribunals International Court of Justice
Information
International & Comparative Law Quarterly , Volume 52 , Issue 3 , July 2003 , pp. 782 - 787
Copyright
Copyright © British Institute of International and Comparative Law 2003

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

2 Armed Activities on the Territory of the Congo (New Application: 2002) (DRC v Rwanda) (Provisional Measures), Order of 10 Jul 2002, paras 1, 7. (Hereafter referred to as the ‘Order’). All Court documents can be accessed at <http://www.icj-cij.org>.

3 Order, paras 89, 94.

4 Ibid, paras 91, 94.

5 For background, see the information on the website of the Mission of the United Nations Organisation in the Democratic Republic of the Congo: <http://www.monuc.org>; and Georges Nzongola-Ntalaja, The Congo — From Leopold to Kabila: A People's History (2002).

6 SC Res 1304 (15 June 2000); SC Res 1376 (9 Nov 2001); SC Res 1399 (19 Mar 2002).

7 Armed Activities on the Territory of the Congo (DRC v Rwanda), Order of 30 Jan 2001 ICJ Rep 2001, 6; Armed Activities on the Territory of the Congo (DRC v Burundi), Order of 30 Jan 2001 ICJ Rep 2001, 3.

8 Order, para 13.

9 Nuclear Tests case (Australia v France), Interim Protection ICJ Rep 1973, 99, 101, [13]; Nuclear Tests case (New Zealand v France), Interim Protection ICJ Rep 1973, 135, 137, [14].

10 Order, para 89.

11 Order, paras 65 and 69.

12 Ibid, para 67.

13 Ibid, para 71, thus following the approach in East Timor (Portugal v Australia) ICJ Rep 1995, 90, para 29. The DRC also made two subsidiary arguments concerning the validity of the Rwandan reservation to the Genocide Convention; the Court rejected these with little discussion (para 72).

14 Order, paras 43–4.

15 Ibid, para 44.

16 Ibid.

17 Ibid, paras 79, 82.

18 Ibid, para 79; but cf the Declaration of Judge Higgins who stated that it was not necessary for the DRC to have identified the provisions breached, and it was for Court itself to see whether the claims made by the Congo raised issues under the Convention.

19 Ibid, para 88.

20 Ibid, para 85.

21 Ibid, para 61.

22 Ibid, para 75.

23 Ibid, para 91.

24 Application of the Convention for the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v Yugoslavia) (Provisional Measures) ICJ Rep 1993, 325, 342, paras 35–6.

25 Separate opinion of Judge ad hoc Mavungu, para 80.

26 Factory at Charzow, Order of 21 Nov 1927, PCU Ser A, No 12, 10.

27 Declaration of Judge Buergenthal; cf Declaration of Judge Koroma.

28 Order, paras 54, 56, 93.

29 Ibid, paras 49–50.

30 Verbatim Record, 13 June 2002, 3:00 pm, 24.

31 Order, para 49.

32 See 1982 United Nations Convention on the Law of the Sea, Art 294.

33 Verbatim Record, 13 June 2002, 3:00 pm, 28.

34 Legality of the Use of Force (Yugoslavia v Spain) (Provisional Measures) ICJ Rep 1999, 761, paras 35, 40(2); Legality of the Use of Force (Yugoslavia v US) ICJ Rep 1999, 916, paras 29, 34(2).

35 Separate Opinion of Judge ad hoc Dugard, para 12.

36 Ibid, para 5.

37 Ibid, para 6.

38 LaGrand (Germany v United States of America), Judgment, ICJ Rep 2001, 466, paras 92–116. For comment see Martin Mennecke and Tams, Christian J, ‘LaGrand Case (Germany v United States of America)’ (2002) 51 ICLQ 449.Google Scholar

39 ‘Congo and Rwanda Sign Peace Deal’, BBC News, 30 July 2002 at <http://news.bbc.co.uk/l/hi/world/Africa/2160522.stm>.

40 ‘DR Congo-Rwanda Peace Deal under Threat’ BBC News, 23 Aug 2002 at <http://news.bbc.co.uk/l/hi/world/Africa/2211862.stm>.