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Ahmadou Sadio Diallo

Published online by Cambridge University Press:  20 January 2017

David P. Stewart  and
Mads Andenas
Mads Andenas
Affiliation:
University of Oslo
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Extract

For the first time since the Corfu Channel case of 1949, the International Court of Justice (Court) has awarded damages. The Court did so on June 19, 2012, in its third judgment in the Diallo case, brought by the Republic of Guinea for human rights violations committed against a Guinean citizen by the Democratic Republic of the Congo (DRC). The judgment was also the Court’s first on damages in a human rights case.

Keywords

Human rightsdiplomatic protectionarbitrary detentionexpulsiondamagescitation of other courts by International Court of Justiceremedies in international law
Type
International Decisions
Information
American Journal of International Law , Volume 107 , Issue 1 , January 2013 , pp. 178 - 183
Copyright
Copyright © American Society of International Law 2013

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References

1 Corfu Channel (UK v. Alb.), Assessment of Amount of Compensation, 1949 ICJ REP. 244 (Dec. 15). Decisions and documents of the Court cited herein are available at its website, http://www.icj-cij.org.

2 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Compensation Owed by the Democratic Republic of the Congo to the Republic of Guinea (Int’l Ct. Justice June 19, 2012) [hereinafter Compensation Judgment].

3 Corfu Channel concerned compensation for loss suffered by a state. Factory of Chorzów (Ger. v. Pol.), Merits, 1928 PCIJ (ser. A) No. 17, in the Permanent Court of International Justice, concerned compensation to two companies. But neither court had awarded damages in a human rights case.

4 Application Instituting Proceedings (Guinea v. Dem. Rep. Congo) (Dec. 28, 1998).

5 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Preliminary Objections, 2007 ICJ Rep. 582 (May 24) [hereinafter Preliminary Objections Judgment].

6 Ahmadou Sadio Diallo (Guinea v. Dem. Rep. Congo), Merits, 2010 ICJ Rep. 639 (Nov. 30) [hereinafter Merits Judgment] (reported by Eirik Bjorge at 105 AJIL 534 (2011) (emphasizing that the Court developed the human rights protection even further than the human rights tribunals)).

7 Id., para. 165(7). The Court cited, in para. 165, the International Covenant on Civil and Political Rights, Arts. 9(1), (2), & 13, Dec. 16, 1966, 99 UNTS 171; and the African (Banjul) Charter on Human and Peoples’ Rights, Arts. 6, 12(4), June 27, 1981, 1520 UNTS 217, 21 ILM 58 (1982).

8 Merits Judgment, para. 164.

9 Preliminary Objections Judgment, paras. 86–94.

10 Merits Judgment, paras. 99–159.

11 Barcelona Traction, Light & Power Co. (Belg. v. Spain), Second Phase, 1970 ICJ Rep. 3, para. 41 (Feb. 5).

12 Preliminary Objections Judgment, para. 87 (citing Elettronica Sicula S.p.A. (Elsi) (U.S. v. It.), 1989 ICJ Rep. 15 (July 20)).

13 E.g., id., paras. 83–84.

14 Corfu Channel (Uk v. Alb.), Assessment of Amount of Compensation, 1949 ICJ Rep. 244 (Dec. 15).

15 The Court itself emphasized the point when it stated “that the sum awarded to Guinea in the exercise of diplomatic protection of Mr. Diallo is intended to provide reparation for the latter’s injury.” Compensation Judgment, para. 57.

16 However, Judge Greenwood argued that the Us$85,000 for Diallo’s nonmaterial injury far exceeded the level awarded by the European and Inter-American Courts of Human Rights. Interestingly, in the judgment on the mer its, Judges Greenwood and Keith had pointed out that the jurisprudence cited by the Court on the human rights treaty provisions on arbitrary expulsion did not confer protection on substance, only on procedure. Merits Judgment, 2010 ICJ Rep. at 716–19, paras. 11–14 (joint dec., Greenwood & Keith, Jj.).

17 Most national, and international, courts are increasing their rates of citation of decisions by courts from other jurisdictions. For a discussion of this development, see Mads Andenas & Duncan Fairgrieve, ‘There Is a World Elsewhere’—Lord Bingham and Comparative Law, in Tom Bingham and The Transformation of The Law: A Liber Amicorum 831 (Mads Andenas & Duncan Fairgrieve eds., 2009).

18 See the extensive list in Brownlie’s Principles of Public International Law 40 nn.128–29 (James Crawford ed., 8th ed. 2012).

19 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 13, paras. 109–10, 112, 133 (July 9).

20 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Montenegro), 2007 ICJ Rep. 43, paras. 188, 198 (Feb. 26).

21 Application of the Interim Accord of 13 September 1995 (Former Yugo. Rep. Maced. v. Greece) (Int’l Ct. Justice Dec.5,2011); Judgment No. 2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed Against the International Fund for Agricultural Development, Advisory Opinion (Int’l Ct. Justice Feb. 1, 2012); Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.) (Int’l Ct. Justice July 20, 2012).

22 Jurisdictional Immunities of the State (Ger. v. It.; Greece Intervening) (Feb. 3, 2012) (reported by Alexander Orakhelashvili at 106 AJIL 609 (2012)).

23 Id., passim.

24 Maroufidou v. Sweden, Communication No. 58/1979, para 9.3, in Human Rights Comm., Selected Decisions Under the Optional Protocol 80, UN Doc. Ccpr/C/Op/1, UN Sales No. E.84.Xiv.2 (1985); Human Rights Comm., General Comment No. 15: The Position of Aliens Under the Covenant (Apr. 11, 1986), at http://www.unhcr.org/refworld/docid/45139acfc.html.

25 Merits Judgment, para. 66.

26 Id.

26 Id., para. 67 (citing Good v. Rep. of Botswana, Communication No. 313/05, para. 204, Afr. Comm’n on Human & Peoples’ Rights, 28th Annual Activity Rep. 66 (2010); World Organization Against Torture v. Rwanda, Communication Nos. 27/89, 46/91, 49/91, 99/93 (joined), id., 10th Annual Activity Rep. 49 (1996)).

26 See James Crawford & Penelope Nevill, Relations Between International Courts and Tribunals: The ‘Regime Problem,’ in Regime Interaction In International Law: Facing Fragmentation 235 (Margaret A. Young ed., 2012); Gilbert Guillaume, The Use of Precedent by International Judges and Arbitrators, 2 J. Int’l Disp. Settlement 5, 19–20 (2011) (stating that the International Court of Justice “always abstained itself from the smallest reference to the rationales employed by the regional jurisdictions”). Previously, the Court’s registrar would informally advise judges that the Court does not cite regional courts in its judgments, as discussed by Mads Andenas, International Court of Justice, Case Concerning Ahmadou Sadio Diallo, 60 Int’l & Comp. L.Q. 810, 817 n.26 (2011). In the secretariats of the different UN human rights bodies different views have been taken on this, which is reflected in their decisions and general comments. But here, too, the system of citations is opening up. See Yevdokimov v. Russia, Communication No. 1410/2005, [2011–12] 1 Report of the Human Rights Committee 127, UNDoc. A/67/40 (Vol. I) (dissenting views clarifying the breach with established practice that the majority’s reliance on the European Court of Human Rights represented).

27 29 Merits Judgment, para. 68.