Six days ago, the International Court of Justice delivered a judgment dismissing the Democratic Republic of Congo's claims against Rwanda for damages inflicted during the civil war. As often happens in ICJ cases, the grounds for dismissal were jurisdictional. The ICJ's authority to render judgment in contentious cases depends on the consent of the parties, and Rwanda had neither accepted compulsory jurisdiction in all cases nor acceded to a treaty providing for jurisdiction in specified circumstances. Therefore, the case against Rwanda (like that earlier filed against Burundi) was inadmissible, and Uganda - which was found liable in December for its occupation of Ituri province and faces billions in damages - is the only culprit standing.
It would be an understatement to describe this situation as perverse. Because Uganda has a greater sense of international obligation and has accepted compulsory ICJ jurisdiction, it is facing an award of damages that might cripple its economy, while Rwanda benefits from its absence of commitment to international law by walking away scot-free. Moreover, Angola and Zimbabwe, which are responsible for depredations and looting of similar magnitude, also got away because the DRC's current ruling faction came to power with their support and thus chose not to sue them. In a conflict that has been described as Africa's world war, only one country will have to pay reparations, and that because of its own sense of legal responsibility.
The DRC case is a graphic example, if any more such are needed, of the international legal system's inability to do justice in ordinary cases. Except in those cases where special tribunals are created by the Security Council or by mutual agreement, international dispute-resolution bodies are hedged about with restrictions and limitations that prevent them from addressing the full scope of the disputes brought before them. This did not escape scrutiny in the separate opinion of Judge Nabil Elaraby who, although voting with the majority on the jurisdictional issue, argued that it highlighted a "major weakness in the contemporary international legal system:"
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. This inability is compounded by the fact that the case forms part of a series of cases brought before the Court by the Democratic Republic of the Congo relating to armed activities of neighbouring States on its territory. Although these cases are related and, to a considerable extent, the facts, circumstances and situations at issue overlap, they are nonetheless distinct cases, each brought upon its own grounds for jurisdiction and giving rise to its own legal considerations.
[...]
The promise and possibilities of the Court, as the principal judicial organ of the United Nations entrusted with the responsibility of settling disputes, requires that States submit their disputes to the Court and accept its jurisdiction. The duty of States to settle their disputes peacefully and in accordance with international law is emphasized in a number of important provisions enshrined in the Charter of the United Nations [...] 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...
Such universal acceptance of the ICJ's jurisdiction is likely to be long in coming. In the meantime, however, the final outcome of the DRC cases makes it critical for the international community to step into the reconstruction process. Uganda, which is itself a poor country, cannot be left alone to repay the damages caused by the Congolese civil war, in which it was only one of many players. Indeed, the cost should not even be left to the DRC and its neighbors, given that many of the roots of the conflict lie in colonial-era policy decisions and in the United Nations' inability to manage regional conflicts effectively during the 1990s. If the Congolese conflict was Africa's world war, its redress is the responsibility of the world.
[Crossposted to The Head Heeb]
Oh what a tangled web, indeed! I've been really interested to read your various posts on the eastern DRC-related cases. I've been trying to think how they relate to the field of Transitional Justice as thus far (somewhat sketchily, and still not stably) defined. I have a strong gut instinct that they do relate, for the following two reasons:
(1) Uganda and Rwanda, both of which have-- obviously-- been involved in these cases are also themselves locuses (loci?) of significant concern to the TJ community, and
(2) These DRC suits to the ICJ have been related centrally to the continuing situation of extremely atrocity-laden civil conflict inside DRC... And situations of such conflict have, over the years, come to form the bulk of the concern of the TJ community.
From the TJ perspective, perhaps, it might seem that the cross-border nature of these DRC suits makes them somewhat peripheral to TJ concerns, which have generally up until now been restricted to initiatives taken within a single country.
However, this ghastly African Great Lakes imbroglio is far from the only situation where a failed state or states draw in all around it (them) in a widening circle of conflict, that certainly requires a vigorous regionwide peacemaking effort. West Africa is another such transnational conflict "system".
My strong policy advice is that in such circumstances the demands of peacemaking must take priority over the demands of "justice" (as defined most narrowly). Though of course for any peace to be stable and sustainable the "justice" requirements of all communities directly concerned must be given huge attention, and huge satisfaction. In these cases, though, these "justice" requirements that are articulated by members and leaders of the affected communities themselves are nearly always couched first and foremost in terms of their basic survival needs, and needs related to the chance of basic human floursihing...
Which is perhaps just a convoluted way of saying that I agree wholeheartedly with Jonathan that meeting the cost of reconstruction of all those affected countries must be the responsibility of the whole world "community", if world "community" is what we want to be...
But as we can see so clearly in Iraq, there is little point in going into any situation of unresolved inter-group conflict with huge plans for war-crimes-trial projects and economic reconstruction projects if the basic political problems underlying the conflict have not yet been resolved. Hence, the primacy of peacemaking diplomacy...
Posted by: Helena Cobban at February 11, 2006 11:00 AM
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