Armed activities on the Congo (New application) Congo v. Rwanda Provisional measures

28 May 2002, Congo instituted proceedings against Rwanda in respect of a dispute concerning massive serious and flagrant violation of human rights and of international humanitarian law 28 May 2002, after filing its application Congo request the indication of provisional measures Resolution 54. … the Court is deeply concerned by the deplorable human tragedy, loss of life, and enormous suffering in the east of the Democratic Republic of Congo resulting from the continued fighting there 56. .. the Court finds it necessary to emphasize that all parties to the proceedings before it must act in conformity with their obligations pursuant to the United Nations Charter and other rules of international law, including humanitarian law 57. …the Court, under its statute, does not automatically have jurisdiction over legal disputes between States…. the Court has repeatedly stated that one of the fundamental principles of its Statute is that it cannot decide a dispute between States without the consent of those States to its jurisdiction 58. Whereas on a request for provisional measures the Court need not… satisfy itself that it has jurisdiction on the merits of the case, yet it ought not to indicate such measures unless the provision invoked by the applicant appear, prima facie, to afford a basis on which the jurisdiction of the Court might be established 69. Whereas both the Congo and Rwanda are parties to the Genocide Convention… however Rwanda’s instrument of accession … includes a reservation worded as follows: “The Rwandese Republic does not consider itself as bound by article IX f the Convention” [dispute settlement provision] 70. Whereas in the present proceedings the Congo has challenged the validity of that reservation

71 Whereas “the principles underlying the (Genocide) Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligations” [Reservations to the Convention of Genocide, ICJ, Reports, 1951, p. 23]… whereas it follows “that the rights and obligations enshrined by the Convention are rights and obligations erga omnes” (Aplication of the Convention of Genocide, ICJ, Reports, 1996 (II) p. 616, para. 31)… Whereas however, as the Court has already had occasion to pint out, “erga omnes character of a norm and the rule of consent to jurisdiction are two different things” (East Timor, ICJ, Reports 1995, p. 102, para 29.) whereas it does not follow from the mere facts that rights and obligation erga omnes are at issue in a dispute that the Court has jurisdiction to adjudicate upon that dispute;… [the Court] has jurisdiction in respect of States only to the extent that they have consented thereto; and whereas, when a compromissory clause in a treaty provides for the Court’s jurisdiction, that jurisdiction exists only in respect of the parties to the treaty who are bound by that clause and within the limits set our in that clause. 72. Whereas the Genocide Convention does not prohibit reservations; whereas the Congo did not object to Rwanda’s reservation when it was made; whereas that reservation does not bear on the substance of the law, but only on the Court’s jurisdiction; … whereas it is immaterial that different solutions have been adopted for courts of a different character 89. Whereas it follows from the preceding considerations taken together that the Court does not in the present case have prima facie jurisdiction necessary to indicate those provisional measures requested by the Congo 90… however, the findings reached by the Court in the present proceedings in no way prejudge the question of the jurisdiction of the Court to deal with the merits of the case or any question relating to the admissibility of the Application, or relating to the merits themselves 91. Whereas in the absence of a manifest lack of jurisdiction, the Court cannot grant Rwanda’s request that the case be removed from the List 92. Whereas there is a fundamental distinction between the question of the acceptance by a State of the Court’s jurisdiction and the compatibility of particular acts with international law; the former requires consent; the latter question can only be reached when the Court deals with the merits after having established its jurisdiction and having heard full legal arguments by both parties 93 Whereas, whether or not States accept the jurisdiction of the Court, they remain in any event responsible for acts attributable to them that violate international law