Monday 2 July 2012

Individual Obtains Reparation at the International Court of Justice for breach of the International Covenant on Civil and Political Rights

Lecturers on international human rights law often explain that individuals can only make claims before bodies like the Human Rights Committee for breaches of their rights. But a few weeks ago, in a judgment described as unprecedented, the International Court of Justice awarded reparations to Mr. Ahmadou Sadio Diallo for a breach of provisions of the International Covenant on Civil and Political Rights.
Diallo is a businessman who had lived and worked in the Democratic Republic of the Congo for many years although he was a national of Guinea. In 1995, he came into conflict with the Congolese government which reacted by imprisoning him and then expelling him from the country. In its November 2010 ruling on the merits of the case, the International Court of Justice held that the expulsion of Diallo was not conducted in accordance with Congolese law, and that as a result article 13 of the International Covenant (‘An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law…’) was breached. Prior to his expulsion, Diallo had been detained for more than two months, a period that the Court held was manifestly excessive and not warranted by circumstances or allowed by the laws of the country. Consequently, there was also a violation of article 9(1) of the Covenant on arbitrary detention.
The Court relied not only upon the Covenant but also on the equivalent provisions of the African Charter of Human and Peoples’ Rights. The Court also showed great deference for the case law of international human rights tribunals and treaty bodies in its interpretation of the relevant human rights treaties. At para. 66 of its ruling on the merits, we read:
Although the Court is in no way obliged, in the exercise of its judicial functions, to model its own interpretation of the Covenant on that of the Committee, it believes that it should ascribe great weight to the interpretation adopted by this independent body that was established specifically to supervise the application of that treaty. The point here is to achieve the necessary clarity and the essential consistency of international law, as well as legal security, to which both the individuals with guaranteed rights and the States obliged to comply with treaty obligations are entitled.
Last month’s ruling, which awards reparations to Mr. Diallo, completes a decision on the merits issued in November 2010.
Technically, of course, Diallo was not himself the applicant in this case. It was filed against the Congo by his state of nationality, Guinea, exercising its right of diplomatic protection. The decision of last week includes a fascinating separate opinion by Judge Cançado where issues concerning the right to reparation of victims of human rights abuses are discussed. Underscoring the significance of this case, Judge Cançado writes:
12. In effect, in the present case A.S. Diallo, the Court’s Judgments on the merits (2010) and now on reparations clearly show that its findings and reasoning have rightly gone well beyond the straight-jacket of the strict inter-State dimension. There are circumstances wherein the Court is bound to do so, in the faithful exercise of its judicial function, in cases concerning distinct aspects of the condition of individuals. After all, breaches of international law are perpetrated not only to the detriment of States, but also to the detriment of human beings, subjects of rights ? and bearers of obligations ? emanating directly from international law itself. States have lost the monopoly of international legal personality a long time ago.
He continues:
48. As disclosed by the present case of A.S. Diallo, one is, in sum, faced with a damage done to an individual. He (and not his State of origin) is the subject of the rights breached, he suffered unlawful detention and arbitrary expulsion (from the State of residence), he is the subject of the corresponding right to reparation, and the beneficiary thereof. His case was originally brought before this Court by his State of nationality (in the exercise of diplomatic protection), but, in its decision on the merits (Judgment of 30.11.2010), the Court made clear that the applicable law was the International Law of Human Rights, concerned with the rights of human beings and not at all of States.
Citing the U.N. Basic Principles and Guidelines on the Right to a Remedy and Reparations, Judge Cançado concludes:
101. This understanding is well in accordance with the basic postulates of the International Law of Human Rights (the applicable law in the present case), and bears witness of the international legal personality of the individual as subject of contemporary international law. This is clearly so, even if, out of a surpassed dogmatism, individuals remain deprived of their international legal capacity, of their locus standi in judicio, that would otherwise have enabled them - as it should happen, in the light of all the aforementioned, - to appear directly in legal proceedings before this Court.
All of this comes as we await a decision of the Trial Chamber of the International Criminal Court on the reparations to be awarded to the victims of Charles Lubanga, who was convicted of recruiting child soldiers earlier this year. 

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