In order to found the jurisdiction of the Court, the DRC, referring to Article 36, paragraph 1, of the Statute, invoked in its Application : Article 22 of the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (hereinafter the "Convention on Racial Discrimination") ; Article 29, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women of 18 December 1979 (hereinafter the "Convention on Discrimination against Women") ; Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 (hereinafter the "Genocide Convention") ; Article 75 of the Constitution of the World Health Organization of 22 July 1946 (hereinafter the "WHO Constitution") ; Article XIV, paragraph 2, of the Constitution of the United Nations Educational, Scientific and Cultural Organization of 16 November 1945 (hereinafter the "Unesco Constitution") and Article 9 of the Convention on the Privileges and Immunities of the Specialized Agencies of 21 November 1947 (hereinafter "the Convention on Privileges and Immunities") ; Article 30, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (hereinafter the "Convention against Torture") ; and Article 14, paragraph 1, of the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971 (hereinafter the "Montreal Convention").
The DRC further contended in its Application that Article 66 of the Vienna Convention on the Law of Treaties of 23 May 1969 established the jurisdiction of the Court to settle disputes arising from the violation of peremptory norms (jus cogens) in the area of human rights, as those norms were reflected in a number of international instruments.
By Order of 10 July 2002 the Court, after hearing the Parties, found that it lacked prima facie jurisdiction to indicate the provisional measures requested by the DRC. The Court also rejected Rwanda's request that the case be removed from the List.
By Order of 18 September 2002 the Court, taking account of the views of the Parties regarding the procedure to be followed and the time-limits to be fixed, decided that the written pleadings would first be addressed to the questions of the jurisdiction of the Court to entertain the Application and of its admissibility and fixed 20 January 2003 and 20 May 2003 as respective time-limits for the filing of a Memorial by Rwanda and of a Counter-Memorial by the DRC. The Memorial and Counter-Memorial were filed within the time-limits so prescribed.
In accordance likewise with instructions given by the Court under Article 69, paragraph 3, of the Rules of Court, the Registry sent the notifications provided for in Article 34, paragraph 3, of the Statute and communicated copies of the written pleadings to the Secretary-General of the United Nations in respect of the Convention on Discrimination against Women ; to the Director-General of the WHO in respect of the WHO Constitution ; to the Director-General of Unesco in respect of the Unesco Constitution and to the Secretary General of the International Civil Aviation Organization in respect of the Montreal Convention. The organizations concerned were also asked whether they intended to submit observations in writing within the meaning of Article 69, paragraph 3, of the Rules of Court. None of them expressed the wish to do so.
For Rwanda: Mr. Martin Ngoga,
Mr. Christopher Greenwood,
Ms Jessica Wells.
For the DRC: H.E. Mr. Jacques Masangu-a-Mwanza,
Mr. Lwamba Katansi,
Mr. Akele Adau,
Mr. Ntumba Luaba Lumu,
Mr. Mukadi Bonyi.
"Accordingly, while reserving the right to supplement and amplify this claim in the course of the proceedings, the Democratic Republic of the Congo requests the Court to :
Adjudge and declare that:
(a) Rwanda has violated and is violating the United Nations Charter (Article 2, paragraphs 3 and 4) by violating the human rights which are the goal pursued by the United Nations through the maintenance of international peace and security, as well as Articles 3 and 4 of the Charter of the Organization of African Unity ;
(b) Rwanda has violated the International Bill of Human Rights, as well as the main instruments protecting human rights, including, inter alia, the Convention on the Elimination of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, the Constitution of the WHO, the Constitution of Unesco ;
(c) by shooting down a Boeing 727 owned by Congo Airlines on  October 1998 in Kindu, thereby causing the death of 40 civilians, Rwanda also violated the United Nations Charter, the Convention on International Civil Aviation of 7 December 1944 signed at Chicago, the Hague Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970 and the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971 ;
(d) by killing, massacring, raping, throat-cutting, and crucifying, Rwanda is guilty of genocide against more than 3,500,000 Congolese, including the victims of the recent massacres in the city of Kisangani, and has violated the sacred right to life provided for in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights, the Convention on the Prevention and Punishment of the Crime of Genocide and other relevant international legal instruments.
In consequence, and in accordance with the international legal obligations referred to above, to adjudge and declare that:
(1) all Rwandan armed forces responsible for the aggression shall forthwith quit the territory of the Democratic Republic of the Congo, so as to enable the Congolese people to enjoy in full their rights to peace, to security, to their resources and to development ;
(2) Rwanda is under an obligation to procure the immediate, unconditional withdrawal of its armed and other forces from Congolese territory;
(3) the Democratic Republic of the Congo is entitled to compensation from Rwanda for all acts of looting, destruction, massacre, removal of property and persons and other acts of wrongdoing imputable to Rwanda, in respect of which the Democratic Republic of the Congo reserves the right to establish a precise assessment of injury at a later date, in addition to restitution of the property taken.
It also reserves the right in the course of the proceedings to claim other injury suffered by it and its people."
On behalf of the Rwandan Government,
in the Memorial :
"Accordingly, Rwanda requests the Court to adjudge and declare that :
The Court lacks jurisdiction to entertain the claims brought by the Democratic Republic of the Congo. In addition, the claims brought by the Democratic Republic of the Congo are inadmissible."
On behalf of the Government of the Democratic Republic of the Congo,
in the Counter-Memorial :
"For these reasons, may it please the Court,
To find that the objections to jurisdiction raised by Rwanda are unfounded ;
To find that the objections to admissibility raised by Rwanda are unfounded ;
And, consequently, to find that the Court has jurisdiction to entertain the case on the merits and that the Application of the Democratic Republic of the Congo is admissible as submitted ;
To decide to proceed with the case."
On behalf of the Rwandan Government,
at the hearing of 6 July 2005 :
"For the reasons given in our written preliminary objection and at the oral hearings, the Republic of Rwanda requests the Court to adjudge and declare that :
1. it lacks jurisdiction over the claims brought against the Republic of Rwanda by the Democratic Republic of the Congo ; and
2. in the alternative, that the claims brought against the Republic of Rwanda by the Democratic Republic of the Congo are inadmissible."
On behalf of the Congolese Government,
at the hearing of 8 July 2005 :
"May it please the Court,
1. to find that the objections to jurisdiction and admissibility raised by Rwanda are unfounded ;
2. consequently, to find that the Court has jurisdiction to entertain the case on the merits and that the Application of the Democratic Republic of the Congo is admissible as submitted ;
3. to decide to proceed with the case on the merits."
For its part Rwanda contends that none of these instruments cited by the DRC "or rules of customary international law can found the jurisdiction of the Court in the present case". In the alternative, Rwanda argues that, even if one or more of the compromissory clauses invoked by the DRC were to be found by the Court to be titles giving it jurisdiction to entertain the Application, the latter would be "nevertheless inadmissible".
The fact that in its Order of 10 July 2002 the Court did not conclude that it manifestly lacked jurisdiction cannot therefore amount to an acknowledgment that it has jurisdiction. On the contrary, from the outset the Court had serious doubts regarding its jurisdiction to entertain the DRC's Application, for in that same Order it justified its refusal to indicate provisional measures by the lack of prima facie jurisdiction. In declining Rwanda's request to remove the case from the List, the Court simply reserved the right fully to examine further the issue of its jurisdiction at a later stage. It is precisely such a further examination which is the object of the present phase of the proceedings.
Article II of that Convention prohibits :
"any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group ;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part ;
(d) Imposing measures intended to prevent births within the group ;
(e) Forcibly transferring children of the group to another group."
Article III provides :
"The following acts shall be punishable :
(a) Genocide ;
(b) Conspiracy to commit genocide ;
(c) Direct and public incitement to commit genocide ;
(d) Attempt to commit genocide ;
(e) Complicity in genocide."
In order to found the jurisdiction of the Court to entertain its claim, the DRC invokes Article IX of the Convention, which reads as follows :
"Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute."
As regards the Arusha Peace Agreement of 4 August 1993, Rwanda considered that this was not an international instrument but a series of agreements concluded between the Government of Rwanda and the Rwandan Patriotic Front, that is to say an internal agreement which did not create any obligation on Rwanda's part to another State or to the international community as a whole.
Rwanda further observed that Article 15 of the Protocol of Agreement on Miscellaneous Issues and Final Provisions of 3 August 1993 made no express reference to the Genocide Convention and did not specify whether the reservations referred to comprised both those concerning procedural provisions, including provisions relating to the jurisdiction of the Court, and those concerning substantive provisions.
Rwanda on 16 April 1975. The Court observes, however, that Rwanda's instrument of accession to the Convention, as deposited with the Secretary-General of the United Nations, contains a reservation worded as follows : "The Rwandese Republic does not consider itself as bound by Article IX of the Convention."
"Rwanda is one of the countries that has ratified the greatest number of international human rights instruments. In 2004 alone, our Government ratified ten of them, including those concerning the rights of women, the prevention and repression of corruption, the prohibition of weapons of mass destruction, and the environment. The few instruments not yet ratified will shortly be ratified and past reservations not yet withdrawn will shortly be withdrawn."
"its effect is to exclude Rwanda from any mechanism for the monitoring and prosecution of genocide, whereas the object and purpose of the Convention are precisely the elimination of impunity for this serious violation of international law".
"Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement."
In its Application the DRC alleges that Rwanda has committed numerous acts of racial discrimination within the meaning of Article 1 of that Convention, which provides inter alia :
"the term ‘racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life".
Rwanda further argues that the objections which it has raised in these proceedings bear on the jurisdiction of the Court and not on the admissibility of the Application, as the DRC contends. It states in this connection that the Court's jurisdiction is based on the consent of the parties and that they are free to attach substantive or procedural conditions to that consent ; as those conditions circumscribe the recognition of the Court's jurisdiction, a contention that they have not been complied with is not an objection as to admissibility but indeed an objection to the jurisdiction of the Court, as, according to Rwanda, the Court made clear in the case concerning the Aerial Incident at Lockerbie.
"Any question or dispute concerning the interpretation or application of this Constitution which is not settled by negotiation or by the Health Assembly shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement."
The DRC contends that Rwanda has breached the provisions of Articles 1 and 2 of the Constitution, which respectively concern the Organization's objectives and functions.
"Any question or dispute concerning the interpretation of this Constitution shall be referred for determination to the International Court of Justice or to an arbitral tribunal, as the General Conference may determine under its rules of procedure."
In its Application the DRC invokes Article I of the Constitution, which concerns the Organization's purposes and functions, and maintains that "[o]wing to the war, the Democratic Republic of the Congo today is unable to fulfil its missions within Unesco...".
"provides for questions concerning the interpretation of the Constitution to be referred to the Legal Committee [of the General Conference, which] may then either ‘decide by a simple majority to recommend to the General Conference that any question concerning the interpretation of the Constitution be referred to the International Court of Justice'... or... may : ‘In cases where the Organization is party to a dispute... decide by a simple majority, to recommend to the General Conference that the case be submitted for final decision to an arbitral tribunal, arrangements for which shall be made by the Executive Board.' "
Rwanda observes in this regard that "[t]he Congo has at no time suggested that these procedures have been adhered to".
"[u]ltimately,... the decision that the Court's lack of jurisdiction was not manifest, then Rwanda is unfounded in maintaining that the compromissory clause in the Unesco Constitution cannot serve as a basis for the Court's jurisdiction".
"Any dispute between two or more Contracting States concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court."
In its Application the DRC made the following submission inter alia:
"by shooting down a Boeing 727 owned by Congo Airlines on  October 1998 in Kindu, thereby causing the death of 40 civilians, Rwanda... violated... the Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971".
On this point, Rwanda asserts that the DRC has "not adequately defined the dispute said to exist between [the Parties] regarding the interpretation or application of the Montreal Convention". It contends that the incident alleged to have occurred at Kindu was the subject of a complaint submitted by the DRC to the International Civil Aviation Organization (hereinafter the "ICAO") and considered by the ICAO Council, but that the DRC failed to provide the Council with any clarification of its allegations. In particular, according to Rwanda, the DRC alleged that the aircraft had been shot down not by Rwanda but by Congolese rebel forces and then made identical allegations against Uganda, without any attempt to reconcile its allegations against those two States. Rwanda further observes that the Declaration adopted by the ICAO Council on 10 March 1999 contains no reference to the incident, "let alone any suggestion that there might have been any violation of the Montreal Convention by Rwanda, or that there might be a dispute between the Congo and Rwanda concerning the interpretation or application of the Convention". Rwanda accordingly concludes that, despite the opportunity afforded the DRC by the ICAO proceedings, it "has not set out its claim with sufficient particularity for Rwanda to be able to oppose it".
"[a]lthough the Congo has referred to the alleged impossibility of negotiating a peaceful settlement with Rwanda, the Congo has here confused the settlement of the armed conflict, the nub of the allegation it makes, with the settlement of the specific dispute which it asserts exists under the Montreal Convention".
Rwanda also observes that the DRC never suggested referring the dispute to arbitration and that it has thus failed to satisfy another essential requirement imposed by Article 14, paragraph 1, of the Montreal Convention.
The DRC next asserts that only two preconditions are laid down by that Article, namely : the dispute must concern the application or interpretation of the Convention in question ; and it must have proved impossible to organize an arbitration, it being understood that the failure of an attempt to do so "will not become apparent until six months have elapsed from the request for arbitration".
Finally, the DRC maintains that these two preconditions for the seisin of the Court have been satisfied in the present case.
"that negotiation between two States has been initiated either once the dispute has been the subject of an exchange of views, or indeed where it has been raised in a specific forum to which both States are party (this was the case for the ICAO, the United Nations Security Council, and various multilateral or sub-regional conferences), where the Congo consistently evoked Rwanda's violations of certain international instruments".
The DRC further contended that "the impossibility of opening or progressing in negotiations with Rwanda" precluded contemplating "the possibility of moving from negotiations to arbitration".
By fifteen votes to two,
Finds that it has no jurisdiction to entertain the Application filed by the Democratic Republic of the Congo on 28 May 2002.
IN FAVOUR : President Shi; Vice-President Ranjeva ; Judges Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham ; Judge ad hoc Dugard ;
AGAINST : Judge Koroma ; Judge ad hoc Mavungu.
Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this third day of February, two thousand and six, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Government of the Democratic Republic of the Congo and the Government of the Republic of Rwanda, respectively.
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