A dissertation submitted in partial fulfillment of

the requirements for the degree of

Doctor of Juridical Science

Introduction……………………………………………………………………………1

 

Chapter One. The Democratic Republic of Congo Armed Conflict and Gross Violations of Human Rights ……………………………………………………….22

  1. Historical Background of the Armed Conflict in the DRC…………………. 22
  2. Origin of the Conflicts ………………………………………………………………23
  3. Initiation of Cases…………………………………………………………………. 26
  4. Why Concurrent Complaints Before the African Commission and the ICJ?…………. 27
  5. Understanding the Notion of “Gross Violation” of Human Rights…………29
  6. Definition of “Gross Violation” of Human Rights…………………………………. 29
  7. Criteria of Classification of Gross Human Rights Violations……………………… 35
  8. Qualitative Element………………………………………………………………… 36
  9. Quantitative Element………………………………………………………………. 39
  10. Element of Time……………………………………………………………………. 42
  11. Element of Planning………………………………………………………………… 44
  12. Failure of Undertaking Judiciary and other Actions………………………………. 45

 

Chapter Two. Jurisdictions of the ICJ and the african human rights Bodies…48

  1. International Court of Justice……………………………………………………49
  2. Powers and Jurisdictions ……………………………………………………………51
  3. Locus standi and Admissibility: Focus on Armed Activities on the Territory of Congo case……………………………………………………………………………………. 56
  4. Consent to the ICJ’s Compulsory Jurisdiction………………………………………57
  5. Admissibility of the 1999 Case on Armed Activities on the Territory of the Congo (DRC v. Burundi, DRC v. Rwanda, and DRC v. Uganda) …………………………….57
  6. Irrelevance of the Third Party Legal Interest (DRC v Uganda) …………………….61
  7. State of Nationality and Exhaustion of Local Remedies ……………………………62
  8. Applicable Law and Decisions………………………………………………………63
  9. Observation: Discussion on Jurisdictional Limitations of the ICJ………………….64
  10. African Human Rights Bodies………………………………………………….66
  11. African Commission of Human Rights…………………………………………….68
  12. Jurisdiction and Standing ………………………………………………………….68
  13. Admissibility………………………………………………………………………. 70
  14. Criteria of Admissibility…………………………………………………………….71
  15. What about the Admissibility of the DRC v. Burundi, Rwanda and Uganda?………..77
  16. African Court of Human and People’s Rights (ACtHPR)………………………….80
  17. Powers and Jurisdictions……………………………………………………………80
  18. Standing Rights …………………………………………………………………….82
  19. Admissibility ……………………………………………………………………….83
  20. Relationship between the ACtHPR and the African Commission………………….84
  21. African Court of Justice and Human Rights (ACJHR) …………………………….85
  22. Jurisdictions of the ACJHR …………………………………………………………87
  23. Applicable Laws and Standing …………………………………………………….91
  24. Admissibility………………………………………………………………………. 92
  25. Relationship between the ACJHR, ACtHPR, and African Commission………………96
  26. Relationship between the ICJ and Regional Human Rights Bodies…………………97

 

Chapter Three. Normative Analysis: DRC v. Uganda, and DRC v. Burundi, Rwanda and Uganda ………………………………………………………………….99

  1. Doctrine of State Extraterritorial Responsibility for Human Rights Violations …………………………………………………………………………….100
  2. Unpacking the Concept of State Extraterritorial Responsibility…………………….100
  3. Judicial Interpretation of Article 2(1) of the ICCPR: DRC v. Uganda case……….102
  4. Jurisdiction of State …………………………………………………………………102
  5. Criteria for Extraterritorial Application of Human Rights …………………………107
  6. Attributable Accountability for Actions of State’s Agents Acting Abroad………….108
  7. Belligerent Occupation and Effective Control………………………………………113
  8. Applicable Laws for State’s Extraterritorial Violations of International Obligations: Human Rights Law vs. Humanitarian Law…………………………120
  9. Non-Derogability of Human Rights …………………………………………………124
  10. Complementary Relationship between Human Rights Law and Humanitarian Law.126

III. Reparation for Gross Violation of Human Rights Committed by States…129

  1. Understanding the Concept of Reparation ………………………………………….129
  2. Types of Reparations ……………………………………………………………….133
  3. Guarantees of Non-repetition ……………………………………………………….133
  4. Restitution ……………………………………………………………………………134
  5. Compensation ……………………………………………………………………….136
  6. Rehabilitation ……………………………………………………………………….137
  7. Satisfaction ………………………………………………………………………….138
  8. Remedial Orders in the Case of Armed Activities in the DRC …………………….139

 

Chapter Four. Legitimacy and Enforcement of Decisions of the ICJ and the African Human Rights Bodies………………………………………………………144

  1. Legitimacy of the ICJ and African Human Rights Bodies …………………….145
  2. Demystifying the Legitimacy of International Tribunals ……………………………145
  3. Definition ……………………………………………………………………………145
  4. Factors Contributing to International Court Legitimacy ……………………………150
  5. Legitimacy from the Treaty vs. Legitimacy in the Practice: Opponents to International Courts ………………………………………………………………………………….154
  6. Supranational Justice and State Sovereignty ………………………………………155
  7. Culturally Imperialistic Justice?…………………………………………………………………….158
  8. Biased and Selective Justice ……………………………………………………….160
  9. Enforcement of Decisions of the ICJ and African Human Rights Bodies…164
  10. Understanding the Concept of Compliance ……………………………………….165
  11. Challenges for International Decision Enforcement ………………………………169
  12. Politicization of the Postadjudicative Phase and Lack of Sanctions against Defaulting Parties ……………………………………………………………………………….169
  13. Lack of Participation by National Judicial Institutions in the Enforcement of International Judgments …………………………………………………………….175
  14. “Judicial Sovereignty” of the Domestic Courts Vis-à-vis International Tribunals?180
  15. Does State’s Non-compliance Imply Rejection of International Tribunals’ Legitimacy? ………………………………………………………………………………………….183

III. Influence of the Decisions of the ICJ and African Commission on Individual Behavior………………………………………………………………………………184

  1. Crisis of Societal Impact of International Judicial Bodies …………………………185
  2. Assessment of the ICJ and African Commission’s Decisions on Individual Behavior …….……………………………………………………………………………………188
  3. Indirect influence of the ICJ and African Commission on actor behavior?……………191

 

Conclusion and Recommendations ……………………………………………….195

 

Annex………………………………………………………………………………….205

Bibliography …………………………………………………………………………215

  1. Introduction

I was in Komanda in August 2002 when … fighters attacked the town. They were killing people… I hid with my family in the forest but they found us. There were six of them in civilian clothes with axes and machetes. I saw people being killed, men, women and children. Then it was our turn. They asked us what ethnic group we were…[T]hey…said they would kill us. They took us one by one. They killed my mother, father and older brother. Then they took me and cut my wrist, my neck and both shoulders. They thought I was dead, so they left me. I think more than 200 people were killed that day.” Elise, a 15-year-old survivor of armed conflict in the Democratic Republic of Congo (DRC). [1]

Elise, her family, and the inhabitants of Elise’s town were not the only ones to experience the horror of human rights abuses during the armed conflict in the DRC. In that war, which involved both national armies and armed militia groups, an estimated four to five million people died because of conflict; three million people were displaced within the DRC; two million fled outside the country to seek asylum; and several hundred thousand others were subjected to inhumane treatment and destruction of property.[2]  The national armies of Burundi, Rwanda, and Uganda, as well as the competing armed groups within the DRC, were designated as responsible for carrying out large-scale massacres of unarmed civilians; “arbitrary killings; extra judicial executions;” arbitrary detentions, torture, abduction and robbing of civilians; theft and destruction of properties; and illegal exploitation of the DRC’s natural resources.[3]

 

This dissertation seeks to examine the roles played by the International Court of Justice (ICJ) and the Regional Human Rights Court (particularly the African Commission on Human and People’s Rights) in addressing gross human rights violations committed during inter-state armed conflicts. To what extent do their decisions serve to protect civilian victims against gross human rights violations, repair the harm caused, and prevent the risk of further escalation of violence?

The purpose of this dissertation is to assess the effectiveness of the ICJ and regional human rights bodies, whose jurisdictional activities depend on the consent of States, in redressing injustices and human rights violations generated by inter-state armed conflicts. More specifically, the research appraises the extent to which the judgments of these international judicial bodies help to protect human rights victims (like Elise, whose wrist and shoulders were cut and whose relatives were killed by armed forces[4]) and repair the harm caused by war. An evaluation of the role of international and regional judicial bodies in adjudicating complaints over inter-state armed conflicts would enable the identification of potential gaps within the international justice system in terms of protecting civilian victims against gross human rights abuses and providing prompt reparations. Identifying the gaps and formulating recommendations to fill the legal holes are crucial to maintaining the legitimacy of international and regional judicial bodies, which were established to peacefully settle disputes involving States based on international laws. While there has been scholarly examination of the roles of international and regional judicial bodies, there has been much less emphasis on their function in restoring justice and providing remedies for gross violations of human rights caused by inter-State wars. This dissertation contributes to the legal literature by providing the first analysis of the functions that international and regional (quasi) judicial bodies performed in adjudicating cases of African human rights violations committed by State(s) against the population of another State during an armed conflict.

It is particularly important to focus on the roles played by the ICJ and the African Commission on Human and People’s Rights (African Commission) because both judicial bodies were concurrently called to adjudicate two cases concerning the same parties, same events, and same issues of serious human rights violations committed during the armed conflicts in the territory of the Democratic Republic of Congo (DRC). Furthermore, the cases DRC v. Uganda (at the ICJ), [5] and DRC v. Burundi, Rwanda and Uganda (before the African Commission)[6] were and are still unique in many respects. The DRC v. Burundi, Rwanda and Uganda case, it was the first-ever inter-states complaint that the African Commission had heard on the violations of human rights committed by a group of States against the population of another State.[7] The matter of Armed Activities on the Territory of the Congo (DRC v. Uganda) was the first case in which the ICJ rendered a binding judgment where it found international human rights law applicable during an armed conflict.[8]  This same case on Armed Activities on the Territory of the Congo is also the first case in which an ICJ judge advocated for universal acceptance of the ICJ’s jurisdiction rather than consensual acceptance, which is sometimes used as an excuse by States in order to escape adverse proceedings concerning human rights violations.[9]

  1. DRC Complaints and Courts’ Rulings

The cases on armed activities in the DRC that were brought before the ICJ and the African Commission relate to a conflict that was perceived not only as a humanitarian disaster[10] but also as the deadliest war since World War II. Five million people died,[11] representing about ten percent of the total DRC population. [12]  The DRC conflict, which is also known as the Great African War or African World War, was particularly characterized by the involvement of dozens of armed groups, and nine African countries battling on two different sides in the territory of the DRC between 1996 and 2003.[13] On one side, there were the DRC and its allies Angola, Chad, Namibia, Sudan, and Zimbabwe; on the other side, there was an alliance composed of Burundi, Rwanda, and Uganda.[14]

In that context of armed activities on its territories, the DRC lodged respectively in February and June 1999 concurrent complaints before the African Commission[15] and the ICJ[16] to claim, among other things, that it was the victim of an armed aggression perpetrated by Burundi, Rwanda, and Uganda; and that the armed forces of these three countries also perpetrated gross violations of human rights against its population.[17] Both the African Commission and the ICJ correspondingly issued their decisions in 2003 and 2005 in regards to the DRC cases. So, what were the positions of both the ICJ and African Commission concerning the DRC claims? Before answering this question, it should be emphasized that this research will be limited to an analysis of the merits of the ICJ and African Commission regarding the DRC’s claim on issues of violation of the human rights of its population rather than its claim on the violation of its territorial integrity.

In its 2003 ruling, the African Commission held that the respondent States had violated the human rights of the Congolese population.[18]  The African Commission also compelled the respondent States to cease military activities, to get involved in the peace process, and to make financial reparations to the DRC on behalf of the victims of human rights violations.[19]  The ICJ also rendered a similar decision against Uganda.[20] To reach its decision, the African Commission had particularly demonstrated a dedication to resolve serious human rights violations through simplifying the procedure regarding the lodging of the complaint and the admissibility of the cases.[21] Both the ICJ and the African Commission also developed new approaches contributing to the development of international law and jurisprudence. This included, for instance, the reconciliation of international humanitarian law and international human rights law in adjudication of serious human rights violations committed during an armed conflict.[22] The traditional reading treated human rights law as lex generalis,[23] which should be solely applicable during peace; whereas the humanitarian law was described as lex specialis,[24] which should be applicable during war time to the exclusion of human rights law.[25] Both the ICJ and the African Commission ruled that the protection of the right to life, the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment, or arbitrary/prolonged detention should not cease in times of war.[26] The ICJ also emphasized that human rights law and humanitarian law are complementary and can be simultaneously applicable.[27] This novel approach of the ICJ and the African Commission to simultaneously apply both humanitarian law and human rights law has been characterized as a “belt and suspenders approach.”[28] This means that humanitarian law is perceived as “the belt” and human rights law as “suspenders” in terms of protecting the civilians (described as “pants”) during war time. If the “belt” breaks (meaning the case of inconsistency of humanitarian law), then the “suspenders” would hold up the pants (meaning human rights law would fill the gap of humanitarian law in offering protection to civilians). The ICJ opted for a cautious approach, avoiding a risk whereby a category of individuals might be unprotected if it had only applied one branch of international law to the exclusion of the other.[29] The rationale behind the combined application of both branches of international law is that this approach is not only more attractive, but also offers better protection to the individuals.[30]

Furthermore, both the ICJ and the African Commission also reaffirmed the principle of a State’s extraterritorial accountability for human rights violations to prevent State-violators acting outside of their national borders from escaping their international responsibility for wrongdoings committed abroad.[31]

 

  • ICJ and African Commission’s Limitations

Although the decisions of both the ICJ and the African Commission contributed to the development of international law and made declarations of State culpability for gross human rights violations, this thesis also argues that those decisions had limited practical effect on the ability of civilian victims to obtain redress for injustices of human rights violations they suffered. First, both the ICJ and the African Commission lack coercive power to enforce their decisions and rely either on the good faith of the State parties (including the offending States) or on the political process for the implementation of their remedial orders.[32] This absence of coercive power and reliance on referral to a non-judicial approach to enforce judgments has been detrimental to the victims of human rights violations, as the respondent State(s) have failed to fully execute the courts’ remedial orders.

Second, although both judicial bodies also ruled for the payment of monetary compensation, they failed not only to define in advance a reasonable timeframe within which the negotiation over the financial payment should be conducted, but also failed to set up a structure for monitoring the negotiation process. A decade after the ICJ and African Commission’s rulings, the offending States have not yet complied with the part of the judgments directing them to make financial payments to repair damages endured by the victims of serious human rights violations. For example, as of May 2015, the DRC and Uganda governments are still negotiating on the scale of financial reparations; but the civilian-victims, who are the principal injured parties, are not involved in the negotiations, which are mainly political.[33]

Third, the international justice system, particularly the ICJ, lacks effective procedures to bring all State-violators of human rights to justice. This is because some State-violators can refrain from recognizing the compulsory jurisdiction of the ICJ and avoid facing international proceedings.[34] In case Concerning the Armed Activities on the Territory of the Congo, the proceedings against Burundi and Rwanda were merely withdrawn because neither of these two countries had accepted the compulsory jurisdiction of the ICJ.[35] Thus, the DRC populations subjected to gross violations of human rights perpetrated by Burundi and Rwanda were or are still denied the possibility of getting legal remedies for the wrongdoings committed by these two countries.

There are several other circumstances that contribute to the ICJ and African Commission’s difficulties in fully enforcing their decisions, including the politicization of the post-adjudicative phase, the nonexistence of a judicial enforcement mechanism at domestic levels, the lack of participation of domestic courts in the enforcement of international courts’ judgments, and the issue of State sovereignty.[36]  In fact, all these factors expose the crisis of legitimacy of these judicial bodies from the perspective of the litigating parties and human rights victims. Legitimate international tribunals are those whose authorities are accepted and perceived as justified.[37] The ICJ and African Commission have legal legitimacy, which relates to the protocols and treaties establishing them.[38] However, these judicial bodies also need a moral and sociological legitimacy, which they can gain when their decisions (or actions) are respectively morally justified, and socially accepted by litigating parties (and/or communities).[39] The more that international tribunals are perceived as legitimate, the more effective they are likely to be,[40] the more compliant the litigating parties are likely to be with their decisions, and the more impact their decisions are likely to have on individuals’ behaviors.[41]

  1. Contributing Suggestions

This dissertation posits that the international justice system needs to be reformed in order to not only render accountable the perpetrators of gross violations of human rights (both State and non-State actors), but also to provide full reparations for civilian victims of these atrocities. This may entail several conditions. The first is: revisiting the problem of the acceptability of the jurisdiction of the international judicial bodies; more precisely in the context of the ICJ. The ICJ Statute should be amended to incorporate provisions imposing universal and obligatory acceptance of the Court’s jurisdiction to limit the leverage of a State’s impunity for gross violations of human rights. The second condition of reform involves judicializing the post-adjudicative stage of international proceedings through empowering domestic courts to increase the enforceability of international judgments.[42] Instead of relying on the good faith of States and political negotiations for the execution of the remedial orders of international and regional judicial bodies, the thesis asserts that revising the ICJ Statute and the African Charter of Human and People’s Rights to empower the domestic courts to have jurisdiction over noncompliance would enable human rights victims to approach the municipal tribunals of the defaulting States to implement the international verdicts that were rendered in their favor. The third condition is, in the context of Africa, to increase the power of the National Human Rights Institutions (NHRIs) in monitoring the enforcement of international judgments.[43]  NHRIs are the domestic human rights “watchdogs” in their respective African countries, and the Protocol on the Statute of the African Court of Justice and Human Rights (ACJHR) has recognized their right to directly lodge complaints before the ACJHR for human rights violations committed in their countries.[44] Explicitly increasing the power of the NHRIs would allow them to not only promote and protect human rights at the national level, but also to monitor the enforceability of international and regional human rights courts by the domestic courts. In other words, granting NHRIs more power would ensure that the beneficiaries of international judgments could get their favorable verdicts enforced by domestic courts in a fair and timely manner.

This dissertation recognizes that the above recommendations may not be the perfect solution for resolving all problems concerning States’ impunity (for their human rights abuses) and non-compliance with international judgments favoring human rights victims. This is because, first, the rate of States’ compliance with the decisions of regional human rights bodies (having “true’ compulsory jurisdiction, such the European Court of Human Rights) is very low.[45] There is no absolute guarantee that if the ICJ Statute changes, it would increase the likelihood of a State’s voluntary enforcement of the ICJ’s remedial orders. Second, some judgments rendered by domestic tribunals on local disputes are not executed; for example, only 40 percent of the decisions rendered by Congolese courts on local disputes are effectively executed.[46] There is therefore no guarantee that domestic courts (particularly in African countries such as the DRC) would enforce international and regional judgments when their own local decisions are not enforced in practice. Third, all legal reform projects at both international and regional schemes can only be materialized with a certain degree of political willingness on the part of the States (and their representatives). Therefore, it may be doubtful that the States, who are the major violators of human rights and the first not to enforce international/regional judgments, would enact these reforms.

Nevertheless, if implemented, the suggested proposals would be more effective than the current legal regime in providing redress to victims of human rights violations.

  1. Scope and Methodology

As previously mentioned, this research is limited to cases of gross violations of human rights committed by a State against the population of another State during an armed conflict. It therefore concerns an inter-state complaint for gross violations of human rights rather than an individual complaint. Geographically, the research will specifically focus on acts of gross violations of human rights that occurred during the armed conflict in the territory of the DRC in the late 1990s. In regards to the case studies (DRC v Uganda, and DRC v Burundi, Rwanda and Uganda), the research will critically evaluate the merits of the ICJ and African Commission’ decisions concerning solely the DRC’s claim on issues of violation of the human rights of its population. Methodologically, this study will be exclusively based on a content analysis of information published in primary and secondary sources. The primary sources will include international treaties and instruments on human rights law and humanitarian law, and the decided international cases on human rights violations involving States. Secondary sources will consist of books, law journals, unpublished theses, and international institutions’ reports. Emphasis will be placed on recent publications on theories such as: States’ international responsibility for gross violations of human rights; the legal consequences for a State that breaches its international obligations; and States’ compliance with international tribunals’ decisions. Internet sources will be used when no other published work is available.

 

  1. Overview

This dissertation will contain four chapters. Chapter One will examine the historical background of the DRC armed conflict and the doctrine of gross violation of human rights. The first Section of Chapter One will explore the origin of the armed conflict in the DRC and the motivations of the DRC in initiating concurrent complaints before the African Commission and the ICJ. This Section will show that the origin of the DRC conflict began with the 1994 Rwandan genocide;[47] and that the DRC’s impetus to lodge simultaneous complaints was principally triggered by the necessity of having a binding decision against the accused States rather than a mere “recommendation,” which lacked binding effects on the States concerned.[48]  The second Section of Chapter One will also examine the concept of gross violation of human rights under international law. The Chapter will explain how the atrocities that the armed forces committed against DRC civilians during the war amounted to “gross” violations of human rights rather than “ordinary” violations of human rights. The Chapter will posit that owing to their seriousness and gravity, the actions of armed groups’ members against civilians in the DRC should have been elevated to the level of gross violations of human rights. In assessing the seriousness of violations, this Chapter will take into consideration several factors, including the quality of the rights violated, the quantity of victims, the repeated occurrence of the violations and their planning, and the failure of the involved parties’ (Burundi, Rwanda and Uganda) governments to take appropriate measures to prevent and punish those violations. [49]

Chapter Two will discuss the jurisdictions of the ICJ and the African human rights bodies in adjudicating human rights violations that occurred during the DRC armed conflict. It will explore the jurisdiction, locus standi, admissibility, and procedures before the ICJ and the African Commission. This Chapter will argue that the jurisdictional activities of these judicial bodies (especially the ICJ), which depend on the consent of States, constitute a serious limitation on efficient adjudication of gross human rights violations committed against civilian victims. As earlier mentioned, the complaints that the DRC filed against Burundi and Rwanda at the ICJ were dismissed simply owing to the fact that neither of these two countries had accepted the compulsory jurisdiction of the ICJ.[50] The dependence of the international tribunals’ jurisdictions on the States parties’ acceptance of their competence can perpetuate injustice against victims of gross human rights violations. This is because some State-violators of human rights can intentionally refuse to recognize the compulsory jurisdiction of the international tribunals, and thereby avoid facing international proceedings.[51]

Chapter Three will critically evaluate the legal theories that the ICJ and the African Commission raised while respectively adjudicating the DRC v Uganda,[52] and the DRC v Burundi, Rwanda and Uganda cases,[53] in connection with the claim of the violation of human rights as opposed to the territorial integrity claims. Section I will evaluate the doctrine of State extraterritorial responsibility for violation of human rights; it will suggest that State responsibility for violation of human rights is not territorially confined, but rather transcends a State’s national borders.[54]  States should not only protect human rights within and outside of their territories, but should also punish any illegal conduct of their organs that violate the fundamental rights of individuals abroad.[55] This is particularly true when a State’s organs have effective control of another State in the context of belligerent occupation.[56] Section II will mainly focus on the interaction between international human rights law and international humanitarian law. The Section will contend that human rights law can no longer be excluded from applying during armed conflicts.[57] This is because the application of human rights law alongside with humanitarian law will ensure better protection to individuals.[58] It was for this reason that the ICJ and the African Commission had reconciled the use of lex specialis (international humanitarian law) and lex generalis (international human rights law) while judging cases of serious human rights violations committed during the DRC armed conflict.[59]  These two bodies of law are complementary so that the norm, which offers better protection to the civilians, will be applied no matter whether it is come from international human rights law or international humanitarian law.[60] Thus, the lex specialis supplements the lex generalis but does not supplant it.[61] Finally, Section III of Chapter Three will discuss the issue of reparations as a remedy for gross violation of human rights. This Section will affirm that reparations for victims of gross human rights violations should be integral and include: restitution,[62] compensation,[63] rehabilitation,[64] satisfaction,[65] and guarantees of non-repetition.[66] In other words, alongside a pecuniary form of reparation, the violating State should also provide non-pecuniary forms of reparation.[67] This Section will also posit that, in the case of the DRC, the reparations that both the ICJ and the African Commission ordered were not integral, as both judicial bodies failed to request the respondents to domestically prosecute those who directly and indirectly committed gross violations of human rights against the DRC’s population.

Lastly, Chapter Four will explore the legitimacy and enforcement of the decisions of the ICJ and African human rights bodies. The principal function of the international and regional courts is to adjudicate disputes that oppose State(s) against State(s), or State(s) against individual(s). Judicial bodies, such as the ICJ and the African Commission, can address and decide important issues, such as the scope of protection of human rights or the reparations due to victims of gross violations of human rights.[68]  Considering the importance of the issues that the litigating parties submit to the ICJ and African Commission, the question of their legitimacy therefore becomes essential. This is because the tribunals’ legitimacy may have implications for whether the litigating parties’ voluntarily comply with their decisions.[69] Equally important, the tribunals’ legitimacy may also sway human behavior, leading to the transformation of the (potential) litigating parties’ attitude towards avoiding future violations of law.[70] Decisions rendered by a tribunal considered illegitimate (in the eye of the involved parties) are more likely to be ignored or unenforced, and have less impact on society, than those issued by a tribunal having more legitimacy.[71]  This Chapter will contain three sections. Section I will examine the legitimacy of the ICJ and African human rights bodies. The Section will argue that a legitimate tribunal is one whose authority is justified and accepted.[72] Legitimacy comprises three components: legal, sociological, and moral.[73] The legal legitimacy of the ICJ and African Commission emanates from the protocols and treaties that established them.[74] These judicial bodies are sociologically legitimate when their decisions are accepted by communities and enforced by the concerned parties; they have a moral legitimacy when their decisions are morally justified.[75] This Section will also allege that the ICJ and African Commission cannot claim “full” legitimacy if any of these three components of legitimacy is missing. A decision issued by an international tribunal can be legally correct (having legal legitimacy) while at the same time being morally and sociologically illegitimate if that decision is morally unjustified and socially rejected.[76] For instance, the ICJ’s decision in DRC v. Rwanda,[77] which dismissed the charges against Rwanda for its human rights violations in the DRC, was legally legitimate because the ICJ Statute prohibits the ICJ from adjudicating cases involving States (such as Rwanda and Burundi) that do not recognize its compulsory jurisdiction.[78] Yet, the same decision was morally illegitimate because it left numerous victims of human rights violations in the DRC without reparations.[79]

Section II of Chapter Four will analyze the enforcement of decisions of the ICJ and African human rights bodies. This Section will argue that the judgments of international courts are not the end in themselves. Rather, they constitute the beginning of a process leading to more effective protection of fundamental human rights and enforcement of remedies.[80] Enforcement of the remedial orders of international courts is an important issue in international proceedings. Victims of human rights abuses commonly want the international courts’ judgments benefitting them to be fully enforced by the offending States. But this Section will assert that the parties concerned in the DRC armed conflicts have partially (rather than totally) complied with the remedial orders of the ICJ and African Commission. This Chapter will also posit that the politicization of the post-adjudicative stage of international proceedings, coupled with the lack of coercive power of international judicial bodies to enforce their own decisions, have contributed to the respondent States’ noncompliance with the judgments of the ICJ and the African Commission to the detriment of human rights victims. Finally, Section III will examine the influence of the decisions of the ICJ and African Commission on individual behavior. As their legitimacy seems to be contested through the noncompliance of the State parties, this Section will demonstrate that the decisions of the ICJ and African Commission cannot have a direct impact on transforming the behavior of the concerned parties. This Section will assess the situation of human rights in the DRC, Rwanda, and Uganda for the periods before, during, and after the proceedings of the ICJ and African Commission. And, the Section will declare that the intensity of armed conflict and the extensiveness of human rights violations in these three countries have only slightly improved following the rulings of the ICJ and African Commission. However, that minor improvement in the human rights situation is indirectly rather than directly influenced by the decisions of both the ICJ and African Commission.

This dissertation will conclude by revealing that the ICJ and African Commission’s rulings have produced limited effects towards: addressing the gross human rights violations committed during the inter-state armed conflict in the DRC; providing full reparations to the victims of said gross human rights violations; and preventing the risk of further escalation of violence. As result, the dissertation will formulate recommendations to render the ICJ and regional human rights bodies more efficient and effective when dealing with situations of human rights abuses caused by armed conflicts.

References:

[1] Human Rights Watch,”Covered in Blood”: Ethnically Targeted Violence in Northeastern DR Congo, (Jul. 2003), https://www.hrw.org/sites/default/files/reports/DRC0703.pdf.

[2] See Andrew Mollel, International Adjudication and Resolution of Armed Conflicts in the Africa’s Great Lakes: A Focus on the DRC Conflict, 1 J.L. Conflict Resolut. 10, 15 (2009); Paul T. Zeleza, Introduction: The Causes & Costs of War in Africa From Liberation Struggles to the ‘War on Terror’ in The Roots of African Conflicts: The Causes and Costs and The Resolution of African Conflicts: The Management of Conflict Resolution and Post-Conflict Reconstruction 9 (Alfred Nhema & Paul T. Zeleza, eds., 2008); World Without Genocide, Democratic Republic of Congo, http://worldwithoutgenocide.org/genocides-and-conflicts/congo.

[3] Mollel, supra note 2, at 17; see also Armed Activities on the Territory of the Congo (Dem. Rep. Congo v Uganda), 2005 I.C.J. 116, ¶ 24 [hereinafter DRC v. Uganda].

[4] Human Rights Watch, supra note 1.

[5] DRC v. Uganda, 2005 I.C.J. ¶ 24.

[6] Dem. Rep. Congo v. Burundi, Rwanda and Uganda, Case 227/99, (African Comm’n on Human and Peoples’ Rights, 2003) [hereinafter DRC v. Burundi, Rwanda and Uganda].

[7]Chaloka Beyani, Recent Development in the African Human Rights System 2004-2006, 7 Hum. Rts. L. Rev. 582, 598 (2007).

[8] The first application of international human rights in armed conflict by the ICJ has been through its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapon. Again, the ICJ confirmed its position in its 2004 Advisory Opinion on the Legal consequences of the Construction of a Wall in the Occupied Palestinian Territory (the 2004 Wall Advisory Opinion).

[9] In light of Article 36 of the Statute of the ICJ, the Court’s contentious proceeding is solely based on the consent of the State parties that submit themselves to the “compulsory jurisdiction” of the ICJ. Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Rwanda) 2003, (Elaraby, separate opinion).  But Judge Elaraby, who in a separate opinion on the case on Armed Activities on the Territory of the Congo (DRC v. Rwanda) suggested some limitations on the principle of the State’s consensual acceptance of the ICJ’s jurisdiction by upholding that: “[T]he jurisdiction of the Court in particular, and international adjudication in general, is of a consensual nature. Consent is its cornerstone. Without such consent, however, the Court has no jurisdiction to examine the merits of a particular case.”

Id. ¶ 7

In the instant case, the Court was precluded, by virtue of the nature and limitations of the international legal system as it exists today, from the appropriate administration of justice. As a result, the Court has not been able to examine the merits of the claims of the Democratic Republic of the Congo.

Id. ¶ 2.

Some built-in limitations of the Statute, resonant of limitations of the international legal system generally, are relics of a past era which need to be revisited. The case before the Court today represents a clear reflection of these limitations. It serves as a reminder to the international community in the twenty-first century of the imperative of actively seeking to overcome the hurdles in establishing jurisdiction. The Court may thereby play a stronger role in the peaceful settlement of international disputes and in enhancing respect for international law among States.

Id. ¶ 10.

[10] Mollel, supra note 2, at 15.

[11] Id. See also Zeleza, supra note 2, at 9.

[12] In 2004, the DRC population was estimated at 58 million. See U.S. Department of State, Congo (Kinshasa), http://www.state.gov/outofdate/bgn/congokinshasa/47435.htm (last visited Feb. 27, 2016).

[13] Virgil Hawkins, Stealth Conflicts: Africa’s World War in the DRC and International Consciousness, JOURNAL of Humanitarian Assistance, Jan. 1, 2004, available at https://sites.tufts.edu/jha/archives/71.

[14] Id.

[15] DRC v. Burundi, Rwanda and Uganda, Case 227/99.

[16] See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Burundi) and (Dem. Rep. Congo v. Rwanda), Feb. 1, 2001, available at http://www.icj-cij.org/docket/index.php?pr=655&code=cb&p1=3&p2=3&p3=6&case=115&k=1d [hereinafter DRC v. Burundi and Rwanda]. In January 2001, the DRC withdrew the proceedings against Burundi and Rwanda because neither of these two countries had accepted the compulsory jurisdiction of the ICJ.  But, the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) continued.

[17] DRC v. Uganda, 2005 I.C.J. ¶ 8.

[18] DRC v. Burundi, Rwanda and Uganda, Case 227/99, ¶ 98.

[19] Id.

[20] DRC v. Uganda, 2005 I.C.J. ¶ 221.

[21] See DRC v. Burundi, Rwanda and Uganda, Case 227/99, ¶ 58. The procedure is expedited in the case of inter-state complaint for flagrant and gross violations of human rights. Therefore the practice of “notifying respondent states is permissible but not mandatory” concluded the African Commission. See also DRC v. Uganda, 2005 I.C.J. ¶ 204. The ICJ ruled that its jurisdiction over acts of violations of international human rights law and international humanitarian law (committed by respondent state) does not depend on the consent or legal interest of a third state.

[22] See DRC v. Uganda, 2005 I.C.J. ¶ 216; DRC v. Burundi, Rwanda and Uganda, Case 227/99, ¶¶ 64, 70. 78. See also William A. Schabas, Lex Specialis? Belt and Suspenders? The Parallel Operation of Human Rights Law and the Law of Armed Conflict, and the Conundrum of Jus ad Bellum, 4 Isr. L. Rev. 592, 593 (2007).

[23] Lex specialis is a special rule, which is the law applicable in armed conflict and designed to regulate the conduct of hostilities. It is, for instance, the case of The Hague Convention (IV) respecting the Laws and Customs of War on Land of 1907.  See also Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 25.

[24] International Covenant on Civil and Political Rights art. 6, (Dec. 16, 1966).  Lex generalis  refers to the general rule which may be applicable in war and peace time.

[25] John Cerone, Jurisdiction and Power: The Intersection of Human Rights Law & The Law of Non-International Armed Conflict in an Extraterritorial Context, 40 Isr. L. Rev. 396, 400  (2007).

[26] DRC v. Uganda, 2005 I.C.J. ¶ 216; see also DRC v. Burundi, Rwanda and Uganda, Case 227/99, ¶ 65.

[27] DRC v. Uganda, 2005 I.C.J. ¶ 216.

[28] Schabas, supra note 22, at 593.

[29] Id.

[30] Id.

[31] DRC v. Uganda, 2005 I.C.J. ¶ 213; see also DRC v. Burundi, Rwanda and Uganda, Case 227/99, ¶¶ 69, 79-80.

[32] Gerald L. Neuman, BiLevel Remedies for Human Rights Violations, 55 Harv. Int’l L. J. 323, 324-325 (2014).

[33] See Armed Activities on the Territory of Congo (Democratic Republic of Congo v. Uganda), 2015 I.C.J. 116, 2, available at http://www.icj-cij.org/docket/files/116/18720.pdf.

[34] Mollel, supra note 2, at 28.

[35] Armed Activities on the Territory of Congo (Dem. Rep. Congo v. Rwanda), 2006 I.C.J. 911, ¶ 128; see also DRC v. Burundi and Rwanda, supra note 16.

[36] See U.N. Charter, art. 94, ¶ 2; Shabtai Rosenne, The International Court of Justice:  An essay in Political and Legal Theory 92–93 (1957); Richard F. Oppong & Lisa C. Niro, Enforcing Judgments of the International Courts in National Courts, 5 J. Int’l Disp. Settlement 344, 346 (2014); Constanze Schulte, Compliance With Decisions Of The International Court Of Justice 30 (2004); Richard F. Oppong, Enforcing Judgments of the SADC Tribunal in the Domestic Courts of Member States, in Monitoring Regional Integration in Southern Africa Yearbook 115, 121 (Anton Bösl et al. eds., 2010); Ralf Michaels, Recognition and Enforcement of Foreign Judgments, in Max Planck Encyclopedia of Public International Law paras. 6, 10 (2009), http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1848?rskey=aSSLSe&result=1&prd=EPIL.

[37] Nienke Grossman, Legitimacy and International Adjudicative Bodies, 41 Geo. Wash. Int’l L. Rev. 107, 115 (2009).

[38] Daniel M. Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law? 93 Am. J. Int’l L. 596, 605 (1999). See also Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1794-1801 (2005); Grossman, supra note 37, at 112.

[39] Fallon, supra note 38, at 1795-1796.

[40] Bodansky, supra note 37, at 603. See also Max Weber, Economy and Society 31 (Guenther roth & Claus Wittich Eds., 1968).

[41] James L. Gibson, Understandings of Justice: Institutional Legitimacy, Procedural Justice and Political Tolerance, 23 Law & Soc’y Rev. 469, 470 (1989).  See also Tom R. Tyler, Legitimacy and CriminalJjustice: The Benefits of Sself-Regulation, 7 Ohio St. J. Crim. L. 307, 315 (2009).

[42]Attila Tanzi, Problems of Enforcement of Decisions of the International Court of Justice and the Law of the United Nations, 6 Eur. J. Int’l L. 539, 540 (1995); see also Pammela Q. Saunders, The Integrated Enforcement of Human Rights, 45 N.Y.U. J. INT’L L. & POL. 97, 109 (2012); Schulte, supra note 36.

[43] University of Minnesota Human Rights Library, Resolution on Granting Observer [or “Affilliate”] Status to National Human Rights Institutions in Africa 1998, http://www1.umn.edu/humanrts/africa/res-observer.html (last visited Feb. 29, 2016).

[44] Id. See also Protocol on the Statute of the African Court of Justice and Human Rights, arts. 29-30, July 1, 2008, [hereinafter Protocol on the Statute of the ACJHR].

[45]Darren Hawkins & Wade Jacoby, Partial Compliance: A Comparison of The European and Inter-American Courts of Human Rights, 6 J. Int’l L. & Int’l Rel. 35, 73 (2010).  See also Deborah Forst, The Execution of Judgments of the European Court: Limits and Ways Ahead, 7 Vienna J. Int’l Const. L. 1 at 1, Feb. 2013, available at https://www.icl-journal.com/download/f1527ce403500a9ec58b8269a9a91471/ICL_Thesis_Vol_7_3_13.pdf. Another study by Déborah Forst on the execution of the ECtHR’s decisions disclosed that “[a]mong the more than 10,000 cases pending before the Committee of Ministers for the supervision of the execution 2,278 were leading cases, i.e. cases which have been identified as revealing a new systemic/general problem in a respondent state, which had been pending for more than five years. Moreover, 1354 of the 1696 new cases which became final between 1 January and 31 December 2011, were repetitive ones.” Forst, supra.

[46] Kinshasa: 60% des Jugements Rendus par les Tribunaux ne son pas Executés [Kinshasa:  60% of the Judgments Delivered by the Courts are not Executed], Radio Okapi (May 15, 2012), http://radiookapi.net/actualite/2012/05/15/kinshasa-60-des-jugements-rendus-par-les-tribunaux-ne-sont-pas-executes-des-pressions-politiques/.

[47] Chatham House, Armed Activities on the Territory of the Congo: The ICJ Judgment in the Context of the Current Peace Process in the Great Lakes Region, (2006).  “A summary of a meeting of the International Law Discussion Group on 27th January 2006.”  Mollel, supra note 2, at 16; Hawkins, supra note 13.

[48] African Charter on Human and Peoples’ Rights, art. 45, para 1(a), 1987 (hereinafter ACHPR].  The decisions issued by the African Commission are mere “recommendations” lacking binding effects on the States concerned while the ICJ’s decisions are legally binding on the States concerned.

[49] Cecilia Medina quiroga, The Battle of Human Rights: Gross, Systematic Violations and the Inter-American System 11(1988); see also M. E. Tardu, United Nations Response to Gross Violations of Human Rights: The 1503 Procedure Symposium International Human Rights, 20 Santa Clara L. Rev. (1980): 559, 583.

[50] DRC v. Rwanda, 2005 I.C.J. ¶ 128; see also DRC v. Burundi and Rwanda, Case No. 227/99.

[51] Mollel, supra note 2, at 28.

[52] DRC v. Uganda, 2005 I.C.J. ¶ 24.

[53] DRC v. Burundi, Rwanda and Uganda, Case No. 227/99.

[54] See DRC v. Uganda, 2005 I.C.J. ¶ 217; DRC v. Burundi, Rwanda and Uganda, Case No. 227/99, ¶ 69-89; United Nations Human Rights Committee, General Comment No 31 on Article 2 of the ICCPR: The Nature of the General Legal Obligation imposed on States Parties to the Covenant. CCPR/C/21/Rev.1/Add. 13, May 26, 2004; see also Robert McCorquodale & Penelope Simons, Responsibility Beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law, 70 Mod. L. Rev. 598, 602 (2007).

[55] Id. See also Vassilis P. Tzevelekos, Reconstructing the Effective Control Criterion in Extraterritorial Human Rights Breaches: Direct Attribution of Wrongfulness, Due Diligence, and Concurrent Responsibility, 36 Mich. J. Int’l L. 129, 131 (2014).

[56] DRC v. Uganda, 2005 I.C.J. ¶ 178; see also Advisory Opinion on the Legal Consequence on the Construction of a Wall in the Occupied Palestinian Territory, ¶ 78; Cordula Droege, The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict, 40 Isr. L. Rev. 310, 330 (2007).

[57] DRC v. Uganda, 2005 I.C.J. ¶ 216.  See also DRC v. Burundi, Rwanda and Uganda, Case No. 227/99, ¶¶ 64, 70, 78.

[58] Schabas, supra note 22, at 593; see also Cerone, supra note 25, at 400.

[59] DRC v. Uganda, 2005 I.C.J. ¶ 216; see also DRC v. Burundi, Rwanda and Uganda, Case No. 227/99, ¶¶ 64, 70, 78.

[60] Schabas, supra note 22, at 593; see also Cerone, supra note 25, at 400.

[61] Schabas, supra note 22, at 593.

[62] See G.A. Res. 60/147, ¶ 19, U.N. Doc. A/RES/60/147 (Dec. 16, 2005) [hereinafter UN Basic Principles and Guidelines]. Restitution implies the restoration of the victim’s original situation “before the gross violations of international human rights law” and international humanitarian law occurred. It also includes “restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.” Id.

[63] Id. ¶ 20.  Compensation refers to the offering of “any economically assessable damage, as appropriate and proportional to the gravity of the violation” of international human rights law and international humanitarian law. Id.

[64]Id. ¶ 21.Rehabilitation consists of the provision of “medical and psychological care as well as legal and social services.” Id.

[65] Id. ¶ 22.   Satisfaction refers, for instance, to public apology in acknowledging facts and accepting responsibility and” judicial and administrative sanctions against persons liable for violations.” Id.

[66] Id. ¶ 23.  Guarantees of non-repetition consist of measures to contribute to the prevention of violation of international human rights. Id.

[67] Velasquez Rodriguez v. Hond., Judgment of July 29, 1988, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶ 174 (1988).

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 its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim compensation.

Id. See also Caballero-Delgado and Santana v. Colombia, Inter-Am. Ct. H.R., Ser. C, No. 22, ¶ 15 (1995).   Colombia must pay compensatory damages to the victims and continue “investigations until those responsible have been identified and punished, thereby avoiding the commission of acts of serious impunity.” Caballero-Delgado and Santana, Inter-Am. Ct. H.R., ¶ 15.

[68] Nienke Grossman, The Normative Legitimacy of International Courts, 86 Temp. L. Rev. 61, 86 (2013) [hereinafter Normative Legitimacy].

[69] Gibson, supra note 41, at 470.

[70] Tyler, supra note 41, at 308.

[71] Gibson, supra note 41, at 470.

[72] Grossman, supra note 37, at 115.

[73] Fallon, supra note 38, at 1794-1801.

[74] See U.N. Charter, supra note 36; United Nations, Statute of the International Court of Justice, art. 36, Apr. 18, 1946 [hereinafter I.C.J. Statute]; see also African Charter on Human and Peoples’ Rights, art. 30, June 27, 1981, 21 I.L.M. 58; Bodansky, supra note 38, at 605; Fallon, supra note 38, at 1794-1801; Grossman, supra note 37, at 112.

[75] Fallon, supra note 38, at1795-1796.

[76] Id.

[77] DRC v. Rwanda, 2006 I.C.J. ¶ 128.

[78] I.C.J. Statute, supra note 73, at art. 36.

[79] See Peter Cane, Responsibility in Law and Morality 106 (2002).  See also Pablo De Greiff, The  Handbook of Reparations 593 (2006).  Any person has moral obligation to repair negative consequence of his/her conduct no matter if he/she was not at fault in causing it.

[80] Francoise Tulkens, Execution and Effects of Judgments of the European Courts of Human Rights: The Role of the Judiciary 12 (2006), available at http://www.echr.coe.int/Documents/Dialogue_2006_ENG.pdf.

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