                                                                                403

                       SEPARATE OPINION OF JUDGE AD HOC MAMPUYA

                 [Translation]
                    The amount of compensation calculated by the Court in respect of the moral
                 injury is excessive, and disproportionate to Mr. Diallo’s suffering — The principles
                 governing the assessment of pecuniary reparation in international law should be
                 applied with the same rigour to reparation for moral injury — The general obliga‑
                 tion to make full reparation should not have a punitive or exemplary character —
                 The pecuniary award should simply represent fair compensation for the injury sus‑
                 tained — The established jurisprudence of the human rights courts, arbitral
                 tribunals and claims commissions shows that these organizations adhere to the
                 principle of proportionality when determining the amount of reparation — The
                 amounts awarded by those bodies in respect of moral injury resulting from graver
                 human rights violations than those suffered by Mr. Diallo are smaller than that
                 awarded to Mr. Diallo — The conditions which surrounded Mr. Diallo’s deten‑
                 tions and expulsion do not constitute aggravating circumstances justifying the
                 excessive award for moral injury — The applicable principles for reparation of
                 material injury — Evidence of the existence of the material injury and of the causal
                 link between the injury and the wrongful conduct of the responsible State is essen‑
                 tial in order to establish the right to compensation — Guinea has failed to provide
                 “sufficient proof” establishing the material injury allegedly suffered by Mr. Diallo
                 in the form of loss of personal property — The principle of equity to which other
                 courts have referred in their jurisprudence is only applicable for the purpose of
                 estimating the value to be used as the basis for calculating the amount of compen‑
                 sation — Guinea has not demonstrated that there is a causal link between the
                 material injury resulting from the loss of personal property alleged by Mr. Diallo
                 and the conduct of the DRC — The human rights courts are more exacting in
                 respect of evidence and require that there be a direct causal link with the alleged
                 offences — While the existence of Mr. Diallo’s personal property has been proved
                 by the inventory, Guinea, however, has failed to demonstrate that certain other
                 property, in addition to that recorded in the inventory, existed, or that this prop‑
                 erty was lost or that its loss was imputable to the DRC — The sum of US$10,000
                 fixed by the Court for the material injury has no legal basis.

                    I firmly supported the principle of the main conclusions adopted in the
                 Judgment rendered by the Court, in order to finally bring an end to this
                 case, which has been ongoing since 1998, by fixing the amount of com-
                 pensation owed as a result of its finding that the international responsibil-
                 ity of the DRC is engaged by internationally wrongful acts which violated
                 Mr. Diallo’s individual rights. I would very much have liked to have
                 agreed with the majority of the Court on all of the points under discus-
                 sion ; unfortunately, I could not subscribe to two of the six points of the
                 operative clause. Hence the explanations I am obliged to set out in this
                 opinion, which is quite clearly not dissenting, but separate.

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                                ahmadou sadio diallo (sep. op. mampuya)                     404

                    1. Firstly, I disagree with the finding relating not to the principle of the
                 compensation owed by the DRC to Guinea for the moral — or “non‑mate-
                 rial” — injury suffered by Mr. Diallo following his detentions and expul-
                 sion by the Respondent’s authorities, but to the assessment of the amount
                 of that compensation, which, in my view, is unjustifiably high. I have also
                 expressed my disagreement with a second point : a point of law concern-
                 ing the legal basis of the compensation awarded for the material injury
                 caused by the loss of Mr. Diallo’s personal property, a basis which, to my
                 mind, in the absence of any evidence, does not exist. I opposed the major-
                 ity of the Court on this point, and voted accordingly, because there is an
                 important legal question of principle at issue : not in view of the amount
                 of compensation awarded, which at US$10,000 is a modest sum, but in
                 view of the significant evidentiary issue in relation to reparation.

                     2. This is the first time since its Judgment fixing the amount of com-
                 pensation in the case concerning the Corfu Channel (United Kingdom v.
                 Albania) (Assessment of Amount of Compensation, Judgment, I.C.J. Reports
                 1949, pp. 244 et seq.) that the Court has been called upon to decide the
                 compensation owed by a State whose international responsibility is
                 engaged by internationally wrongful acts ; the Court, therefore, has no
                 choice but to refer to the rich experience of other courts, including that of
                 arbitration and claims tribunals. The most illustrative practice in this
                 regard is that of the two regional human rights courts — the European
                 Court of Human Rights (ECHR) and the Inter‑American Court of
                 Human Rights (IACHR) — as well as that of the Iran‑United States
                 Claims Tribunal. The abundant case law of these courts has enabled prin-
                 ciples to be identified, which today govern the examination of any
                 questions raised by the assessment of the reparation and the fixing of
                  the compensation owed by a State whose international responsibility is
                  engaged.
                     3. It is, therefore, this case law and these principles which, according to
                  the Court itself, should guide it in its approach to reparation in general
                  and in fixing the amount of compensation. However, my analysis of the
                  present Judgment, carried out in the light of these sources, leads me to
                  conclude that they have not, in fact, been taken into account by the
                  Court.
                     4. I will begin by addressing the question of the determination of the
                  amount of compensation owed for the non‑material or moral injury — a
                  straightforward exercise, because it amounts simply to an assessment of
                  the facts. In so doing, I will demonstrate that the Court has failed to
                  respect those principles which have emerged from the established juris-
                  prudence, by fixing an amount which is clearly excessive in view of the
                  practice of all the other courts, including those specializing in the safe-
                  guarding of human rights, although these are, in principle, the most
                  favourable to the victims.
                     5. I will then explain in more detail my view of the Court’s decision to
                  award Guinea compensation — whatever the amount — for “material

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                                ahmadou sadio diallo (sep. op. mampuya)                   405

                 injury” caused by Mr. Diallo’s alleged loss of his property following his
                 detentions and expulsion by the DRC in January 1996. I will demonstrate
                 that this award of compensation has no legal basis and no justification,
                 since Guinea has failed to provide evidence of the existence of the injury ;
                 such evidence, although not a condition of responsibility — which derives
                 directly from the commission of the internationally wrongful act — is
                 nevertheless the indispensable basis for the award of reparation and the
                 measure of the amount of compensation to be awarded. In particular,
                 such evidence should show that Mr. Diallo did in fact possess and lose
                 the property in question, and that its loss was imputable to the DRC as a
                 direct consequence of the wrongful detentions and expulsion of the Guin-
                 ean national by that State.

                       I. Excessive Amount of Compensation for Non‑Material
                                      (Mental or Moral) Injury

                     6. It is not disputed that Mr. Diallo sustained moral injury as a conse-
                 quence of his arrests and expulsion, which were declared unlawful
                 and arbitrary by the Court in its Judgment of 30 November 2010
                 (I.C.J. Reports 2010 (II), p. 692, para. 165, points 2, 3 and 4 of the opera
                 tive clause), or that he is therefore entitled to reparation in the form of
                 compensation. The problem is the amount of the “appropriate compen
                 sation”.
                     7. In this connection, the amount claimed by Guinea (US$250,000) is
                 clearly disproportionate given the practice in this area (even by domestic
                 courts) and the nature of the injury (purely moral and mental), in respect
                 of which, in certain cases, particularly those concerning reparation to
                 States, reparation has often been limited to satisfaction and to a “declara-
                 tory judgment”, for example, the finding in the Judgment on the merits of
                 30 November 2010 that the DRC had violated Article 36, paragraph 1 (b)
                 of the Vienna Convention on Consular Relations (ibid., p. 691, para. 161
                 and p. 693, point 7 of the operative clause). It is clear that the Court also
                 considered Guinea’s claim of US$250,000 (see para. 10 of the present
                 Judgment) to be both excessive and disproportionate, because it did not
                 accede to Guinea’s request on this point. Nevertheless, the US$85,000
                 compensation which it has awarded is significantly higher than the
                 amounts awarded to date for similar and even more serious violations
                 of comparable obligations. Of course, moral injury cannot be measured.
                 One can even argue that, strictly speaking, it does not have to be proved,
                 because it is inherent to the human condition when subjected to a viola-
                 tion of rights. However, there is nevertheless a standard by which to
                 measure such injury in the present case which, in view of its specific cir-
                  cumstances, can only be the conditions surrounding Mr. Diallo’s deten-
                  tions and expulsion.
                  8. From the case law and practice a certain number of principles emerge,
                  which govern how compensation should be measured. Among these is the

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                                ahmadou sadio diallo (sep. op. mampuya)                     406

                 undeniable principle that, while the primary aim of compensation is to
                 remedy as fully as possible all forms of loss suffered as a result of an inter-
                 nationally wrongful act, compensation is in no sense intended to punish
                 the responsible State, and nor should it be of an expressive or exemplary
                 nature. This approach was adopted by the ILC from its very first reports
                 on State responsibility, citing, inter alia, from the work of Jiménez de Aré-
                 chaga : “punitive or exemplary damages . . . are incompatible with the
                 basic idea underlying the duty of reparation” (E. Jiménez de Aréchaga,
                 “International Responsibility”, Manual of Public International Law, Lon-
                 don, Macmillan, 1968, cited in UN doc. A/CN.4/425 & Corr.1 and Add.1
                 & Corr.1, Second Report on State Responsibility, by Mr. Gaetano Aran-
                 gio‑Ruiz, Special Rapporteur, 1989, para. 24). That principle is incorpo-
                 rated in the ILC’s Draft Articles on State Responsibility, first in the
                 commentary on Article 36 relating to compensation and then in Arti-
                 cle 37, paragraph 3, in respect of satisfaction : “[s]atisfaction shall not be
                 out of proportion to the injury and may not take a form humiliating to the
                 responsible State” (Yearbook of the International Law Commission, 2001,
                 Vol. II ; J. Crawford, The International Law Commission’s Articles on
                 State Responsibility — Introduction, Text and Commentaries, “Commen-
                 tary under Article 36”, p. 219 and pp. 231 and 234 ; emphasis added).
                 This principle of proportionality between the reparation, whatever form
                 it takes, and the injury, is well established : the extent of the injury should
                 be the measure of the level or amount of the compensation, thus ensuring
                 that the latter simply represents fair compensation for the injury suffered.
                 A pecuniary award should not exceed the level of compensation, even
                 though there is a temptation in respect of human rights violations —
                 which are regarded as particularly shocking and offensive to human dig-
                 nity — to go beyond this, either to punish the State responsible for those
                 violations or, by making an exemplary or spectacular award, to intimi-
                 date other States and discourage them from similar conduct.

                    9. Of course, all reparation, particularly pecuniary reparation, entails
                 an element of dissuasion, but this element is inherent to the principle of
                 reparation, just as criminal punishment is necessarily punitive and there-
                 fore intimidating, yet does not reflect a desire to punish the offender pub-
                 licly. However, reparation goes beyond this inherently dissuasive aspect
                 and function when the sum awarded no longer corresponds to an amount
                 of compensation reflecting not only as fully as possible, but at the same
                 time as precisely as possible, the scale of the injury for which reparation
                 must be made ; such is the case of compensation which is clearly excessive.
                 It is true, moreover, that a moral injury cannot be measured in monetary
                 terms, but money is, as the saying goes, “the common measure of valu-
                 able things” (Grotius), and since the injury must therefore be compen-
                 sated by sums of money, a court should not decline to be guided by the
                 practice of other courts and arbitral bodies, whose decisions may be

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                                ahmadou sadio diallo (sep. op. mampuya)                     407

                 regarded as giving an indication of the average size of the sums awarded
                 to “ease” the moral injury of victims or their relatives.

                     10. The foregoing explains why even the Inter‑American Court of
                 Human Rights, which has a very compassionate and generous attitude
                 towards the compensation claims of victims of human rights violations,
                 adopted this principle of proportionality in its very first judgment on
                 reparation, in the Velásquez Rodríguez v. Honduras case (judgment of
                  21 July 1989 (reparations and costs), para. 38), which has since become a
                  point of reference in the field, and in which it stated that international law
                  did not recognize reparation which punished States. It is not that “puni-
                  tive damages” are completely inconceivable, rather that, while certain
                  national systems do permit the award of such damages, punishment is not
                  the purpose of reparation, pecuniary or otherwise, in international law.

                    11. Of course, the conditions of detention or expulsion — for example,
                 solitary confinement, torture, ill‑treatment, the length of the detention,
                 etc. — are circumstances specific to each case and could, depending on the
                 case, justify a higher amount of compensation, while their absence would
                 impose a lesser amount. In the present case, however, the Court has
                 acknowledged that Mr. Diallo did not suffer inhuman or degrading treat-
                 ment during his detentions. Having briefly alluded to such treatment,
                 Guinea chose to abandon any such accusations, and did not attempt to
                 offer the slightest proof that such treatment occurred (Ahmadou Sadio
                 Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits,
                 Judgment, I.C.J Reports 2010 (II), p. 671, paras. 88‑89 and p. 693,
                 para. 165, point 5 of the operative clause ; present Judgment, para. 21).
                 Furthermore, the total duration of Mr. Diallo’s detentions did not exceed —
                 to use the variable figures advanced by Guinea (I.C.J Reports 2010 (II),
                 pp. 659‑660, paras. 48‑52) and disregarding the DRC’s challenge to those
                 figures — 66 to 72 days. Of course, the deprivation of liberty, whether for
                 a few hours or several years, should be condemned when it is wrongful or
                 arbitrary, but its duration is not irrelevant when measuring the sufferings
                 endured by the individual detained or the seriousness of the injury for
                 which reparation must be made. It would therefore have been useful for the
                 Court to compare the duration of Mr. Diallo’s detention with the much
                 longer detentions considered by other courts, whose practice and experi-
                 ence should have guided the Court in the present case.
                    12. Nor, strictly speaking, did the Court accept that there were aggra-
                 vating circumstances beyond the unlawful and arbitrary character of the
                 detentions and expulsion which, moreover, constitute the full extent of
                 the DRC’s violation of its obligations, for, as the Court said itself, “the
                 fact that [Mr. Diallo] suffered non‑material injury is an inevitable conse-
                 quence of the wrongful acts of the DRC already ascertained by the Court”
                 (Judgment, para. 21). It then recalled (ibid.), without expressly calling
                 them aggravating, the specific circumstances of Mr. Diallo’s detentions
                 and expulsion, as described in its Judgment on the merits (I.C.J

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                                ahmadou sadio diallo (sep. op. mampuya)                 408

                 Reports 2010 (II), pp. 666‑670, paras. 74‑84). In respect of these specific
                 circumstances, even the fact that, expelled on 31 January 1996, Mr. Diallo
                 “[only] received notice of his expulsion on the same day” is not consid-
                 ered as an aggravating circumstance in itself. And while the Court states
                 that Mr. Diallo “was detained for an unjustifiably long period pending
                 expulsion” (present Judgment, para. 21, and I.C.J Reports 2010 (II),
                 p. 668, para. 79), it does so in response to the DRC’s argument that the
                 detention was necessary, in order to prevent the individual concerned
                 from fleeing and escaping expulsion. These circumstances constitute the
                 very form of the violation.
                    13. Thus, a comparison of Mr. Diallo’s case with certain cases ruled on
                 by the European Court of Human Rights or the Inter‑American Court of
                 Human Rights shows that, without making light of Mr. Diallo’s suffer-
                 ing, the situations presented before those courts were often much graver
                 than that of the Guinean national : notification of the expulsion measure
                 on the same day it was carried out, detention of several years, torture,
                 inhuman and degrading treatment, solitary confinement, enforced disap-
                 pearance, extrajudicial executions, etc. However, in many of these cases,
                 the courts awarded much smaller sums : US$30,000 at most, which was
                 the amount offered by the Respondent itself as appropriate compensation
                 taking into account the specific circumstances of the case. The few cases
                 in which comparatively high sums were awarded by the Inter‑American
                 Court of Human Rights involved enforced disappearance, kidnappings,
                 extrajudicial executions, and so on.

                    14. In general, the compensation awarded for non‑material injury is
                 thus relatively modest, in keeping with the nature of the injury suffered,
                 especially if that injury has had no proven significant somatic effects.
                 Below are some examples of the sums awarded as reparation for moral
                 injury.
                 (a) European Court of Human Rights : €24,000 in M.S.S. v. Belgium and
                     Greece, €15,000 in Khodzhayev v. Russia, €8,000 in Ahmed v. Roma‑
                     nia and €15,000 in Lupsa v. Romania for detentions lasting for several
                     years accompanied by aggravating circumstances ; US$50,000 in
                     M. v. Germany for arbitrary detention lasting more than eight years.
                     In Nowak v. Ukraine the European Court of Human Rights awarded
                     €16,000 for unlawful detention, arbitrary expulsion and ill‑treatment,
                     and violations of guarantees provided by Protocol No. 7. However,
                     Mr. Nowak had a valid residency permit at the time of his expulsion
                     and was an “alien lawfully resident” in Ukraine, within the meaning
                     of Article 1 of Protocol No. 7. Moreover, he was notified of the expul-
                     sion order on the day of its execution, in a language which he did not
                     understand and in circumstances which did not allow for him to be
                     represented or to submit arguments against his expulsion.

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                                ahmadou sadio diallo (sep. op. mampuya)                   409

                 (b) Inter‑American Court of Human Rights : US$30,000 in Neptune v.
                     Haiti, US$20,000 in Maritza Urrutia v. Guatemala, US$50,000 in
                     Chaparro Alvarez and Lapo Iñiguez v. Ecuador. In Goiburú et al. v.
                     Paraguay, the Inter‑American Court of Human Rights in fact made
                     several awards, ranging from US$10,000 to US$50,000, to the various
                     victims of collective and grave violations, including infringements of
                     the rights to life and liberty, enforced disappearance, etc., with the
                     highest amounts awarded for disappearances.

                 (c) United States/Mexico General Claims Commission : US$2,500 in the
                     Daniel Dillon case, US$8,000 in the Harry Roberts case and US$4,000
                     in the Mary Ann Turner case.

                    15. In light of the foregoing, it seems to me that, having regard to the
                 circumstances of this case, the established violations and the moral injury
                 described above (see the present Judgment, para. 25), the sum of
                 US$85,000 is grossly excessive ; it does not reflect the extent of the injury
                 suffered and is not proper compensation for the moral injury actually
                 sustained. Thus, contrary to what is stated in the Judgment (ibid.), it
                 does not appear to me to be “appropriate”. In view of earlier practice,
                 including that of the human rights courts, it is clear that this amount,
                 which does not reflect the circumstances of the case, bears no relation to
                 the practice, and in my view it has not been adequately justified. Because
                 of its unprecedented size and exemplary, if not punitive, character (see
                 paras. 8 and 9 above), it is likely to attract attention and constitutes a
                 reversal of the jurisprudence on this question, which is not the function of
                 reparation.

                     II. Unjustified Compensation for the Material Injury Resulting
                                    from the Loss of Personal Property

                                   The Legal Rules Governing This Area
                    16. In terms of compensation for an internationally wrongful act con-
                 sisting in the violation by a State of an international obligation engaging
                 the latter’s international responsibility, this case, as the Court confirms
                 (Judgment, para. 13), is only the second since its creation in the aftermath
                 of World War II in which it has been called upon to fix compensation.
                 The Court’s only precedent is the Corfu Channel case (United Kingdom v.
                 Albania) (Assessment of Amount of Compensation, Judgment, I.C.J. Reports
                 1949, pp. 244 et seq.), which concerned the destruction of British warships
                 and the deaths of naval personnel, and which was also a “material” case
                 in terms of the nature of the injury sustained by the United Kingdom. In
                 that case, the Court was extremely demanding, and was not content to
                 accept the Applicant’s claims or even the evidence of the destruction of

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                                ahmadou sadio diallo (sep. op. mampuya)                  410

                 the ships and the deaths of crew members. Although the Court ultimately
                 ruled in favour of the United Kingdom and awarded it the compensation
                 it sought, it did so on the basis of documentary evidence provided both
                 by the United Kingdom and by the experts’ report — which confirmed
                 the existence of a causal link, in that the material damage alleged was
                 indeed the direct consequence of the mine explosions (I.C.J. Reports 1949,
                 p. 265) — and the figures presented by the Applicant could be considered
                 as a “fair and accurate estimate of the damage sustained” (ibid., p. 250).
                 The emergence of two conditions can clearly be observed : there must be
                 evidence of the injury to justify the compensation amount and there must
                 be evidence of a causal link.
                    17. This decision marked the introduction, in case law and in practice,
                 of the requirement that there be “sufficient proof” of the injury sustained
                 and that the nature of the victim’s pecuniary claims be “fair”. This case
                 law and practice of the international courts which regularly rule on such
                 claims, notably the European Court of Human Rights (ECHR), the
                 Inter‑American Court of Human Rights (IACHR) and the various joint
                 claims tribunals, in particular the Iran‑United States Claims Tribunal,
                 together with several arbitral awards, are well established today.

                    18. In the present case, it seems clear to me that, even though the Court
                 claims to have taken into account the practice in other courts (Judgment,
                 para. 13), it did not rigorously adhere to this when it awarded compensa-
                 tion for a material injury, without requiring independent proof of the
                 allegations made by Mr. Diallo.
                    19. The point of law at issue here is that of the burden of proof : proof
                 of the existence of the injury, which is, in fact — both in the legal tradi-
                 tion and in the situations contemplated by the ILC’s Draft Articles — the
                 basis and measure of compensation, and proof of the causal link between
                 the injury and the wrongful behaviour of the responsible State.

                                     Evidence of the Material Injury :
                                   The Requirement of “Sufficient Proof”
                    20. In many instances there is no evidence in support of Guinea’s alle-
                 gations and claims. Doubtless aware of the evidence requirement, the
                 Court had to consider whether it was still possible, in the absence of evi-
                 dence, to award reparation in the form of pecuniary compensation. At
                 the same time, however, this concern shows that the Court believes that
                 evidence plays a central role in cases concerning responsibility, reparation
                 and compensation. Thus it is well established that “[a]s a general rule, it
                 is for the party which alleges a fact in support of its claims to prove
                 the existence of that fact”, as the Court recalled in its Judgment on the
                 merits of the case which is the subject of these proceedings (I.C.J
                 Reports 2010 (II), p. 660, para. 54). This is why, in its 2010 Judgment,
                 the Court did not hesitate to dismiss facts which were alleged but not
                 proved (ibid., pp. 679-687, paras. 117-148, and p. 690, paras. 157 and 158).

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                                 ahmadou sadio diallo (sep. op. mampuya)                     411

                     21. Just a few examples will suffice to confirm this principle, which the
                 Court itself recognizes : for example, Papamichalopoulos and Others v.
                 Greece (Article 50) (application No. 33808/02, judgment of 31 Octo-
                 ber 1995, ECHR, Series A, No. 330‑B, para. 37), which concerned the
                 question of the expropriation of land belonging to individuals, and Akdi‑
                 var and Others v. Turkey (Article 50) (application No. 21893/93, judgment
                 of 1 April 1998, ECHR, paras. 15‑34), in which the applicants sought
                 damages for material injury resulting from the loss of their homes, burnt
                 down by Turkish security forces. Although there was no doubt that the
                 land and the houses had existed, or that the land had been expropriated
                 and the houses burnt down by the army, in order to establish their true
                 value the European Court of Human Rights called experts, refusing to rely
                 on the unsubstantiated claims advanced by the applicants. Similarly, in
                 McCann and Others v. United Kingdom (application No. 18984/91, judg-
                 ment of 27 September 1995, ECHR, A324), which involved a violation of
                 Article 2 of the European Convention on Human Rights (right to life)
                 consisting in the murder of three members of the IRA in Gibraltar by
                 British security forces, the European Court rejected the argument of pre-
                  meditated execution put forward by the victims’ representatives, for lack
                  of evidence. In a case concerning violence in custody, the European Court
                  also demanded that the Austrian Government “satisfactorily [establish]
                  that the applicant’s injuries [had been] caused otherwise than — entirely,
                  mainly, or partly — by the treatment he underwent while in police cus-
                  tody” ; in the absence of evidence to that effect, it concluded that the viola-
                  tions had been established (Ribitsch v. Austria, application No. 1889/91,
                 judgment of 4 December 1995, ECHR, A336, para. 34). In a case involv-
                  ing discrimination — behaviour which is difficult to prove — the Euro-
                  pean Court of Human Rights demanded proof that the alleged difference
                  in treatment was based on discriminatory grounds related to a protected
                  characteristic (for example, sex, race, religion) and that, therefore, it was
                  wrongful, even though, by a sort of sharing of the burden of proof, there
                  then arose a presumption of discrimination, which the Respondent would
                  have to refute by producing evidence to the contrary (Timishev v. Russia,
                  applications Nos. 55762/00 and 55974/00, judgment of 13 December 2005,
                  ECHR, paras. 40‑44 ; see also, to the same effect, the judgment of the ECJ
                  of 26 June 2001 in Susanna Brunnhofer v. Bank der österreichischen Post‑
                  sparkasse AG, case C‑381/99, 2001 Reports, p. I‑04961). This sharing of
                  the burden of proof does not contradict the established rule in this regard,
                  which stipulates that he who alleges a fact must provide proof of that fact.
                  These are cases where the claims put forward are mutually contradictory,
                  and it is for each party to substantiate its own argument with evidence
                  capable of convincing the court. Finally, in H.L.R. v. France (application
                  No. 24573/94, judgment of 29 April 1997, ECHR), the European Court of
                  Human Rights concluded that the expulsion of the Colombian applicant
                  had not violated Article 3 of the European Convention on Human Rights,
                  because no relevant proof had been produced in support of the allegations
                  of risks of ill‑treatment.

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                                ahmadou sadio diallo (sep. op. mampuya)                    412

                    22. The Iran‑United States Claims Tribunal, for its part, has shown
                 itself to be particularly stringent with respect to establishing the existence
                 of an alleged injury in the form of a loss of property, requiring the appli-
                 cant to demonstrate that, before the commission of the unlawful acts, the
                 property in question existed and was in his or her possession (“possession,
                 expropriation and value of the items”). In this respect, the case law of the
                 Tribunal reveals a preference for documentary proof — undoubtedly the
                 most reliable form of evidence — despite the fact that the applicants, in
                 this case American nationals expelled from Iran, had often been forced to
                 flee that country, thereby abandoning the documents which proved the
                 existence, ownership and value of the property alleged to have been lost
                 (see, in particular, the cases of Daley (United States of America v. Iran),
                 award 360‑10514‑1, 1988 WL 637289 (Iran‑US Cl. Trib.) ; Rankin (United
                 States of America v. Iran), award 326‑10913‑2, 1987 WL 503860 (Iran‑US
                 Cl. Trib.) and Yeager (United States of America v. Iran), award 324‑10199‑1,
                 1987 WL 503859 (Iran‑US Cl. Trib.)).
                    23. The Daley case, for example, concerned an American national who
                 claimed to have lost various property (including, a car, a thoroughbred
                 horse, a Rolex watch, jewellery, a coin collection, a total of US$15,000 in
                 cash and some luxury carpets) when he was detained and expelled from
                 Iran. The fact that the circumstances of his expulsion meant that he was
                 no longer in possession of the supporting documents did not prevent the
                 Tribunal from declaring that it “does not find that the horse was expro-
                 priated”, and that “[t]his part of the claim is therefore dismissed” (1988
                 WL 637289, para. 24). To establish the ownership and value of the coin
                 collection, proof was required as to where and when the coins had been
                 bought, who had sold them, the details of their insurance cover, etc. The
                 burden of proof is such that, in the same case, even though the carpets in
                 question had been seen in the Daley residence in Teheran, the Tribunal
                 found that “[t]he evidence is not sufficient to establish, however, that the
                 carpets or any of the other furniture were at the apartment on the date of
                 the alleged taking” (ibid., para. 27) ; it also required the applicant to
                 “establish that these items [had been] removed from the premises by indi-
                 viduals or groups for whose acts the Government of Iran is legally liable”
                 (ibid., para. 28). The Tribunal’s insistence on the need for proof of the
                 causal link can be seen in the following paragraph, in which it states that
                 the presence of the carpets and other effects at the applicant’s residence
                 does not enable it to conclude that they “[had been] removed in circum-
                 stances which would give rise to liability on the part of the Iranian Gov-
                 ernment”. The requirement is a manifold one : the “possession,
                 expropriation and value of the items for which” compensation is sought
                 must be established (ibid., para. 30).
                    24. It is worth mentioning here an arbitral award rendered in a case
                 involving the same head of damage and factually similar circumstances,
                 namely the Chevreau case between France and Great Britain, and which
                 was very similar to the present case in that it related to the wrongful deten-
                 tion and expulsion of a foreigner of French nationality, Mr. Chevreau,

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                                ahmadou sadio diallo (sep. op. mampuya)                     413

                 followed by a claim for compensation by the French Government for
                  material damage resulting from the loss of personal property during
                  Mr. Chevreau’s detention and expulsion (Chevreau case (France v. Great
                 Britain), 9 June 1931, English version from 27 American Journal of Inter‑
                  national Law 153, 1933).
                     25. The Chevreau case, which bears a very strong resemblance to the
                  present one, concerned in particular property, that is, “money, watches and
                  jewels, clothes, books and other articles which, according to Mr. Chevreau,
                  were in his lodgings . . . when he was arrested, but which were not found on
                  December 24, 1918, when an inventory was made . . . in the presence of two
                  English officers and of the Director of Customs” (ibid., p. 178). The list of
                  property provided by Mr. Chevreau included not only the items whose
                  presence had been noted in the inventory of 24 December 1918, but other
                  items, too, notably “money, watches and jewels”, which he claimed were in
                  his possession before the events in question. The French State therefore
                  contended that the British State was responsible for the loss of the securi-
                  ties and articles enumerated in Mr. Chevreau’s list, but not detailed in the
                  inventory. The Arbitrator found that the United Kingdom could not be
                  held responsible for this loss, even though the British authorities did not
                  deny that they were responsible for the safe‑keeping of the effects in ques-
                  tion (ibid., p. 179). Therefore, he took account only of the contents of the
                  inventory, without taking into consideration the other items claimed by
                  Mr. Chevreau, which had not been found at the house when the inventory
                  was drawn up. It was under these circumstances that, on the sole basis of
                  the declarations and because of a lack of “documentary proof”, the Arbi-
                  trator found that “Mr. Chevreau’s claim for loss of effects in Persia could
                  not be sustained”, and decided that, in law, “[t]he burden of proof [wa]s
                  upon the French Government and [that] the allegations of Mr. Chevreau
                  [could] not be accepted as sufficient proof” (ibid., p. 181 ; emphasis added).

                    26. In the present case, the Court has correctly applied this principle in
                 respect of some of the claims, dismissing the alleged material injury for
                 loss of earnings and the claim for compensation made by Guinea for the
                 loss of high‑value items which were alleged to have been in Mr. Diallo’s
                 apartment at the time of his expulsion, but which were not found or listed
                 on the inventory (Judgment, para. 34), as well as the claims for the alleged
                 loss of income (ibid., paras. 41, 42, 44, 45 and 46) and potential earnings
                 (ibid., para. 48).
                    27. As can be seen, although a certain degree of flexibility is permitted
                 in respect of non‑material damage, regarded as inherent to the human
                 condition when subjected to violations and not having to be proved,
                 judges and arbitrators have always enforced a higher standard of proof,
                 that of “sufficient proof” or “proof to the satisfaction of the Court”.

                                     Recourse to the Principles of Equity
                   28. While, in respect of material injury, the Court has sometimes based
                 reparation on considerations of equity, it has done so not because the exis-

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                                ahmadou sadio diallo (sep. op. mampuya)                   414

                 tence or loss of the property in question was in doubt, but simply for the
                 purpose of estimating the value to be used as the basis for assessing the
                 amount of compensation. Thus, in Orhan v. Turkey, in which “no deci-
                 sive . . . proof of the size and nature of the houses, property and posses-
                 sions destroyed and lost [was] provided”, the European Court of Human
                 Rights had to award compensation which was “speculative and based on
                 principles of equity” (Orhan v. Turkey, application No. 25656/94, judg-
                 ment of 18 June 2002, ECHR, paras. 423‑424). Similarly, in a case involv-
                 ing the loss of a house and personal effects, whose value had not been
                 proved, but whose existence and ownership had been established, the same
                 court ruled that “[its] assessment of the amounts to be awarded must,
                 by necessity, be based on principles of equity” ; it fixed that amount at
                 GBP 4,500, “[i]n the absence of any decisive evidence and making its assess-
                 ment on an equitable basis” (Bilgin v. Turkey, application No. 23819/94,
                 judgment of 16 November 2000, ECHR, paras. 140 and 144).

                                                 Causal Link
                    29. Furthermore, generally speaking — and in this case — material
                 injury resulting from the loss of personal property and any subsequent
                 claim for reparation in respect of that injury should be rejected if there is
                 no causal link between the alleged injury and the wrongful conduct of the
                 State in question, in this case the DRC.
                    30. It is true that the European Court of Human Rights, like the
                 Inter‑American Court of Human Rights, has shown greater flexibility in
                 respect of the causal link for non‑material injury, often presuming that
                 such an injury and the necessary causal link exist on the basis of the
                 nature of the violation, since the applicant could not be required to fur-
                 nish evidence of the non‑material damage sustained, because this is inhe-
                 rent to the human condition and does not have to be proved, as indicated
                 by the Inter‑American Court of Human Rights (Goiburú and al. v.
                 Paraguay, judgment of 22 September 2006 (merits, reparations and costs),
                  IACHR).
                    31. However, even the Inter‑American Court of Human Rights, the
                  most favourable of all the courts in terms of safeguarding human rights
                  and providing reparation for their violation, insists that there must be a
                  minimal causal link. Indeed it defines material injury for which compen-
                  sation may be made as “the loss or impairment of the victims’ income, the
                  expenses incurred as a result of the facts and the monetary consequences
                  thereof bearing a causal link to the facts of the instant case” (Cantoral
                  Benavides v. Peru judgment, para. 166, and La Cantuta v. Peru, judgment
                  of 29 November 2006, para. 213 ; emphasis added).

                   32. That said, the characteristic flexibility which is shown almost sys-
                 tematically by that court should not be applied elsewhere, with the same

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                                ahmadou sadio diallo (sep. op. mampuya)                    415

                 reasoning or the same justification. In reality, even though this Court has
                 had cause to address certain aspects relating to human rights in the pres-
                 ent case, it remains a case of diplomatic protection between States, and
                 the Court has not become a human rights court. Furthermore, there is a
                 specific historical reason as to why the Inter‑American Court has an
                 already established practice of flexibility towards evidence, essentially
                 working on the basis of equity in order to determine the existence of the
                 violation and of the injury and in assessing compensation : the court’s
                 first judgments were in cases concerning mass disappearances of persons
                 under dictatorships which were in place for decades in the States of Latin
                 America. As well as the atrocities of dictatorships, these cases also con-
                 cerned a period in which a number of these States were, for reasons of
                 national interest and security, engaged in wars against armed rebel groups
                 (“Shining Path” and other “Maoists”) and in the arrest, detention, tor-
                 ture and execution of suspects, such as the two Gómez‑Paquiyauri broth-
                 ers, who were killed by security forces in Peru (Gómez‑Paquiyauri
                 Brothers v. Peru, judgment of 8 July 2004 (merits, reparations and costs),
                 IACHR). These are systematic crimes by the State, which led Judge Can-
                 çado Trindade, who described this tragedy as a reality which has always
                 existed at the heart of the human race — irrespective of the régime or the
                 era — to state that, for the victims of this tragedy, “[n]othing will be as it
                 was before” and “[t]he survivors . . . today have the memory of paradise
                 lost” (Gómez‑Paquiyauri Brothers v. Peru, separate opinion of Judge Can-
                 çado Trindade, para. 6). Under these circumstances, it is understandable
                 that, from its first judgment on reparation and the assessment of compen-
                 sation, the Velásquez‑Rodríguez v. Honduras judgment rendered on
                 21 July 1989 (that is to say, before the Gómez‑Paquiyauri Brothers judg-
                 ment), the Inter‑American Court of Human Rights adopted this attitude,
                 whereby it considered the systematic practice of violations of the right to
                 life as constituting an “autonomous human rights violation” [see Elise
                 Hansbury, Le juge interaméricain et le “jus cogens”, Geneva, Graduate
                 Institute of International and Development Studies, para. 34, referring to
                 the case of Velásquez‑Rodríguez v. Honduras, judgment of 29 July 1988
                 (merits), IACHR, para. 155]. This gave rise to the theory of “aggravated
                 responsibility”, which is not found elsewhere. The type of cases submitted
                 to the Inter‑American Court of Human Rights have thus lent themselves
                 to a less stringent approach : the circumstances of the systematic disap-
                 pearances and acts of torture for which the State was responsible actually
                 deprived the victims, or their relatives, of the possibility of establishing
                 the violations (right to life, torture, etc.) or of proving that they had suf-
                 fered both physical and mental inhuman treatment. It is not surprising,
                 therefore, that from the outset this court decided in principle that this
                 type of suffering did not have to be proved, and thus that it benefited
                 from a sort of irrefutable presumption as to its existence. But can it be
                 said that such specific conditions could ever justify the general, systematic
                 application of such flexibility — and its extension to all types of material
                 injuries — by the Court, which does not deal either with crimes of the

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                                ahmadou sadio diallo (sep. op. mampuya)                   416

                 State or with “autonomous human rights violations” of this kind ? That is
                 highly doubtful.

                    33. For its part, the European Court of Human Rights has always
                 maintained that, in respect of material injuries, the burden of proof relat-
                 ing to the existence of those injuries and to the causal link should nor-
                 mally be borne by the applicant, and the absence of proof of one or other
                 of these has frequently led to the rejection of the claim. In Borisenko v.
                 Ukraine, for example, although the court awarded compensation of
                 €1,700, “ruling on an equitable basis, in respect of non‑pecuniary dam-
                 age”, this was on account of the non‑material injury, the court having
                 dismissed the material injury for which the applicant was claiming com-
                 pensation : “The Court does not discern any causal link between the vio-
                 lations found and the pecuniary damage alleged ; it therefore rejects that
                 claim.” (Borisenko v. Ukraine, application No. 25725/02, judgment of
                 12 January 2012, ECHR, para. 67.) Similarly, in Airey v. Ireland, the
                 European Court rejected the claim for material injury on the grounds that
                 the applicant had failed to establish that there was a causal relation
                 between the alleged violations and the losses suffered (Airey v. Ireland,
                 application No. 6289/73, judgment of 6 February 1981, ECHR, para. 12).
                    34. In Ahmed v. Romania (application No. 34621/03, judgment of
                 13 July 2010, ECHR), the Court, having awarded compensation for
                 non‑material injury resulting from an arbitrary detention lasting more
                 than six months and followed by an unlawful expulsion, rejected the
                 claim for material injury on account of the loss of property, the bank-
                 ruptcy of the company and resettlement in another country, because of a
                 lack of evidence of the causal link :
                        “63. The Court finds that there is no causal link between the esta‑
                     blished violations and the alleged material damage. However, it is of
                     the opinion that the applicant has suffered an undeniable moral
                     injury as a result of the established violations. Taking account of all
                     of the facts in its possession and ruling on the basis of equity . . . it
                     decides to award the applicant a sum of €8,000 in this connection.”
                     (Emphasis added.)
                 There is one circumstance specific to the European Court of Human
                 Rights : the notion of equity is expressly provided by Article 41 of the
                 European Convention on Human Rights, which states that “[i]f the Court
                 finds that there has been a violation of the Convention or the Protocols
                 thereto . . . the Court shall, if necessary, afford just satisfaction to the
                 injured party” (emphasis added). It is not, therefore, a general reflection
                 of current practice in the area of human rights, rather a provision limited
                 to compensation.
                    35. The case of Somogyi v. Italy also involved a violation of Article 6
                 of the European Convention. The European Court of Human Rights

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                                     ahmadou sadio diallo (sep. op. mampuya)                                                    417

                 stated the following, first in respect of material damage and then in rela-
                 tion to moral damage :
                         “83. The Court does not consider it appropriate to compensate the
                     applicant for the alleged losses, no causal link having been established
                     between the violation found and the negative effects the applicant’s
                     conviction allegedly had on his commercial activities and his social
                     relations. (Emphasis added.)
                     �����������������������������������������������������������������������������������������������������������������
                         85. As regards non‑pecuniary damage, the Court considers that,
                     in the circumstances of the case, the finding of a violation constitutes
                     in itself sufficient just satisfaction (see Brozicek v. Italy, judgment of
                     19 December 1989, Series A, No. 167, p. 20, para. 48 ; F. C. B. v.
                     Italy, cited above, p. 22, para. 38 ; and T. v. Italy, cited above, p. 43,
                     para. 32).” (Somogyi v. Italy, application No. 67972, judgment of
                     18 May 2004, ECHR, paras. 83‑85.)
                    36. If one had to choose some exemplary cases in this respect from the
                 case law of the Iran‑United States Claims Tribunal, it would be appropri-
                 ate to recall those which are similar to the one before the Court, namely
                 the Rankin, Daley and Yeager cases, in which the Tribunal demanded
                 proof of a causal link between the alleged loss of property and the con-
                 duct of the author of the internationally wrongful act, requiring the appli-
                 cants to demonstrate that they had abandoned the property in question
                 on leaving Iran, or that the property had been expropriated.
                    37. In view of all of the foregoing, it seems to me that whenever an
                 injury is linked to an object, a tangible thing whose existence can be sub-
                 stantiated by evidence, decisions should not be made on the basis of con-
                 jecture or of equity — as the majority of the Court has chosen to do in
                 the present Judgment ; nor should the Court act on the basis of any rea-
                 son or consideration other than that of sufficient proof, that is to say,
                 proof evidenced by documents.

                                                           The Present Case
                   38. Had this case law and practice been applied in the present case, the
                 Court would inevitably have had to reject Guinea’s claims for every head
                 of material injury or loss of material property for which it had failed to
                 provide “sufficient proof” in support of its claim. This is what the Court
                 did in respect of the alleged loss of earnings (Judgment, paras. 44, 45
                 and 46).
                   39. Thus, although considerations of equity may be used in the event of
                 material loss in order to put a figure to the compensation —when the exact
                 value of the loss sustained (property or earnings) is not indicated or can-
                 not be determined — it is not possible to dispense with evidence in order
                 to prove the existence of the object in question, be it property or earnings.
                   40. In the Diallo case, beyond the inventory of Mr. Diallo’s personal
                 property drawn up by the Guinean Embassy — an inventory which is

                                                                                97

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                                 ahmadou sadio diallo (sep. op. mampuya)                      418

                 mentioned by the DRC in its Counter‑Memorial, but actually provided by
                 Guinea itself (see Annexes 199 and 200 of the Memorial) — no evidence
                 has been produced by Guinea attesting to the existence of any other prop-
                 erty. Mr. Diallo’s lavish lifestyle in 1984 (Cartier watches, grand recep-
                 tions and designer clothes) does not prove that a number of luxury and
                 prestige items, not listed on the inventory, still existed in 1996, in circum-
                 stances where, in 1995, Mr. Diallo had had himself declared indigent and
                 was experiencing financial difficulties. If Mr. Diallo was forced to abandon
                 the property which he claims to have lost, it was because of the financial
                 difficulties of the companies he managed, and not because of the wrongful
                 expulsion carried out by the Congolese authorities.
                    41. Furthermore, the standard of proof — if only in respect of the
                 evaluation of the amount to be reimbursed — is such that, in the Chevreau
                 case, while accepting that it appeared “probable that Mr. Chevreau had
                 in his rooms more clothing than was indicated in the inventory”, the arbi-
                 trator, having contemplated the possibility of awarding an indemnity for
                 the loss of this clothing, was obliged to reject that claim “for lack of infor‑
                 mation which would permit him to calculate an indemnity on this ground”
                 (Chevreau case, cited above, paras. 24-25 and 41-42 ; emphasis added).
                    42. One might also add in respect of the Chevreau case that, although the
                 arbitrator made an exception concerning the loss of a violin, whose existence
                 had not been recorded, he did so because it had been established that an
                 empty violin case had been found at the house, allowing for the presump-
                 tion that Mr. Chevreau could have owned a violin. For the potential loss of
                 the violin, he was awarded compensation of 100 pounds sterling. In the
                 present case, the Court is unable even to raise a convincing presumption
                 that Mr. Diallo owned possessions other than those listed on the inventory.
                    43. It is true that it has not been possible to establish definitively the fate
                 of the property in question following the drawing up of the inventory ; how-
                 ever, nor has it not been demonstrated that they had been lost. On this
                 point, the Congolese Government argues — and no evidence to the contrary
                 has been produced — that this property should have been in the apartment,
                 which in all likelihood was under the guard of the Guinean Embassy. In any
                 event, no attempt has been made to prove that the DRC is responsible for
                 the possible loss or theft of that property while it was under the guard of
                 Mr. Diallo’s trusted household staff, his friends or the Guinean Embassy
                 itself. This reasoning was adopted by the DRC to support its view that the
                 inventory of the property found in the apartment occupied by Mr. Diallo
                 was a credible piece of evidence of probative value, since it had been drawn
                 up on the initiative of and by the Guinean Embassy itself. As the Judgment
                 recalls (para. 31), the Respondent also maintained that, in the absence of
                 evidence to the contrary, that inventory included all Mr. Diallo’s property
                 that was in his apartment and that this property had subsequently been
                 recovered by the Embassy, because the Congolese Government had had no
                 opportunity or reason to take possession of it, nor had it confiscated it.
                    44. Equally, while the arbitrator in the Chevreau case considered that
                 it had not been satisfactorily established that there was a causal link

                                                                                98

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                                ahmadou sadio diallo (sep. op. mampuya)                   419

                 between the loss, as alleged by the French Government, of certain prop-
                 erty belonging to Mr. Chevreau and the conduct of the British Govern-
                 ment — even though the latter did not deny that it was responsible for
                 safeguarding the property (see Chevreau case, cited above, paras. 24-25
                 and 41-42), the situation in the present case is somewhat unclear. In effect,
                 the Court itself lets it be understood that there is no clearly established
                 causal link enabling it to be concluded that the alleged loss of that prop-
                 erty “was caused by the DRC’s unlawful conduct” (Judgment, para. 32).
                 Moreover, it freely admits that “Guinea does not point to any evidence
                 that Mr. Diallo attempted to transport or to dispose of the property in
                 the apartment, and there is no evidence before the Court that the DRC
                 barred him from doing so” and that “Guinea has failed to prove the
                 extent of the loss of Mr. Diallo’s personal property listed on the inven-
                 tory and the extent to which any such loss was caused by the DRC’s
                 unlawful conduct” (ibid., para. 31), concluding therefore that there is no
                 causal link between the alleged loss of property and the wrongful deten-
                 tions and expulsion of Mr. Diallo.
                    45. In any event, no evidence has been produced which attests to the
                 loss of this property, or to its value, or to the fact that the DRC was
                 responsible for that purported loss, as the Court recognizes (ibid.,
                 paras. 31‑33) ; this head of damage should therefore have been rejected.
                    46. Paradoxically, however, having thus concluded that there is no
                 “definite” proof, the Court proceeds to award compensation by produc-
                 ing a sort of unexpected auxiliary argument. Thus, while accepting that
                 the DRC might be correct in its “contention that Guinean officials and
                 Mr. Diallo’s relatives were in a position to dispose of that personal prop-
                 erty after Mr. Diallo’s expulsion”, the Court nevertheless considers that,
                 “at a minimum, Mr. Diallo would have had to transport his personal
                 property to Guinea or to arrange for its disposition in the DRC”. Repa-
                 ration is thus no longer envisaged on account of the definite loss of the
                 property in question, nor of the role played by the Congolese Govern-
                 ment in that loss ; consequently, it no longer has any legal basis. How-
                 ever, unable to rely on the “transport” of the property to Guinea or its
                 “disposition” in the DRC as a serious basis for compensation — which
                 would imply that there was proof of the property’s existence, its loss and
                 the causal link between that loss and the DRC’s conduct — it is by pure
                 artifice, and with no clear reasoning, that the majority of the Court is
                 content to state (ibid., para. 36) that “in view of the Court’s conclusions
                 above . . . regarding the personal property of Mr. Diallo . . ., the Court
                 awards the sum of US$10,000 under this head of damage”. However, on
                 this precise point, it can be seen that the Court had, in fact, reached the
                 opposite conclusion — that no evidence whatsoever had been supplied by
                 Guinea. What, then, is the head of damage in question ?

                    47. I am therefore of the opinion that the majority has failed to assess
                 the situation correctly in holding that it was entitled to award compensa-
                 tion for loss of physical property whose existence and value have not been

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                                ahmadou sadio diallo (sep. op. mampuya)                  420

                 established, nor its loss, or the DRC’s responsibility for that loss. It
                 appears to have been difficult to avoid comparing the size of Guinea’s
                 initial claims with the amount of reparation that it was ultimately entitled
                 to claim on the basis of the case file submitted by it and considered by the
                 Court. That notion of compensation does not, in my view, correspond in
                 the present case to what might be called “equity”.

                                                           (Signed) Auguste Mampuya.

                                                                                100

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        COUR INTERNATIONALE DE JUSTICE

            RECUEIL DES ARRÊTS,
     AVIS CONSULTATIFS ET ORDONNANCES

   APPLICATION DE LA CONVENTION
POUR LA PRÉVENTION ET LA RÉPRESSION
       DU CRIME DE GÉNOCIDE
           (GAMBIE c. MYANMAR)

         ORDONNANCE DU 18 MAI 2020

               2020
        INTERNATIONAL COURT OF JUSTICE

          REPORTS OF JUDGMENTS,
       ADVISORY OPINIONS AND ORDERS

  APPLICATION OF THE CONVENTION
ON THE PREVENTION AND PUNISHMENT
     OF THE CRIME OF GENOCIDE
         (THE GAMBIA v. MYANMAR)

            ORDER OF 18 MAY 2020

                         Mode oﬃciel de citation :
      Application de la convention pour la prévention et la répression
               du crime de génocide (Gambie c. Myanmar),
         ordonnance du 18 mai 2020, C.I.J. Recueil 2020, p. 75

                             Oﬃcial citation :
      Application of the Convention on the Prevention and Punishment
           of the Crime of Genocide (The Gambia v. Myanmar),
             Order of 18 May 2020, I.C.J. Reports 2020, p. 75

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                                18 MAI 2020

                               ORDONNANCE

   APPLICATION DE LA CONVENTION
POUR LA PRÉVENTION ET LA RÉPRESSION
       DU CRIME DE GÉNOCIDE
       (GAMBIE c. MYANMAR)

  APPLICATION OF THE CONVENTION
ON THE PREVENTION AND PUNISHMENT
     OF THE CRIME OF GENOCIDE
     (THE GAMBIA v. MYANMAR)

                               18 MAY 2020

                                 ORDER

               75

                              COUR INTERNATIONALE DE JUSTICE
                                              ANNÉE 2020
   2020
  18 mai                                       18 mai 2020
Rôle général
  no 178
                      APPLICATION DE LA CONVENTION
                   POUR LA PRÉVENTION ET LA RÉPRESSION
                          DU CRIME DE GÉNOCIDE
                                      (GAMBIE c. MYANMAR)

                                            ORDONNANCE

               Présents : M. Yusuf, président ; Mme Xue, vice-présidente ; MM. Tomka,
                          Abraham, Bennouna, Cançado Trindade, Mme Donoghue,
                          M. Gaja, Mme Sebutinde, MM. Bhandari, Crawford,
                          Gevorgian, Salam, Iwasawa, juges ; M. Gautier, greffier.

                   La Cour internationale de Justice,
                  Ainsi composée,
                  Après délibéré en chambre du conseil,
                  Vu l’article 48 du Statut de la Cour et le paragraphe 3 de l’article 44 de
               son Règlement,
                  Vu la requête enregistrée au Greﬀe de la Cour le 11 novembre 2019,
               par laquelle la République de Gambie (ci-après dénommée la « Gambie »)
               a introduit une instance contre la République de l’Union du Myanmar
               (ci-après dénommée le « Myanmar ») à raison de violations alléguées de la
               convention pour la prévention et la répression du crime de génocide,
                  Vu l’ordonnance du 23 janvier 2020 par laquelle la Cour a ﬁxé au
               23 juillet 2020 et au 25 janvier 2021, respectivement, les dates d’expiration
               des délais pour le dépôt du mémoire de la Gambie et du contre-mémoire
               du Myanmar ;
                  Considérant que, par lettre datée du 24 avril 2020, l’agent de la Gambie
               a prié la Cour de proroger d’au moins trois mois le délai pour le dépôt du

               4

76   application de convention genocide (ordonnance 18 V 20)

mémoire en raison de la pandémie de COVID-19, ajoutant que « le prin-
cipe de l’égalité des armes autoriserait le Myanmar à bénéﬁcier
d’une prorogation de délai analogue pour le dépôt de son contre-
mémoire » ; et que, dès réception de cette lettre, le greﬃer, conformément
au paragraphe 3 de l’article 44 du Règlement, en a fait tenir copie à
l’agent du Myanmar ;
   Considérant que, par lettre datée du 28 avril 2020, l’agent suppléant du
Myanmar a indiqué que son gouvernement, bien qu’estimant que la pan-
démie de COVID-19 n’apparaissait pas constituer en soi une justiﬁcation
suﬃsante pour la demande de la Gambie, ne prenait aucune position sur
ladite demande et considérait qu’il appartenait à la Cour de « décider si la
demande de prorogation de délai de la Gambie [était] suﬃsamment justi-
ﬁée » ;
   Compte tenu des vues des Parties,
  Reporte au 23 octobre 2020 la date d’expiration du délai pour le dépôt
du mémoire de la République de Gambie ;
  Reporte au 23 juillet 2021 la date d’expiration du délai pour le dépôt du
contre-mémoire de la République de l’Union du Myanmar ;
  Réserve la suite de la procédure.

   Fait en français et en anglais, le texte français faisant foi, au Palais de
la Paix, à La Haye, le dix-huit mai deux mille vingt, en trois exemplaires,
dont l’un restera déposé aux archives de la Cour et les autres seront trans-
mis respectivement au Gouvernement de la République de Gambie et au
Gouvernement de la République de l’Union du Myanmar.

                                                   Le président,
                                      (Signé) Abdulqawi Ahmed Yusuf.
                                                     Le greﬃer,
                                           (Signé) Philippe Gautier.

5


                    466

                                       Joint declaration
                             of Judges Cançado Trindade and Yusuf

                      International litigation and dispute-settlement : relevance of intervention in
                    contemporary international litigation — Requisites for intervention under the
                    Court’s Statute — Interest of a legal nature which may be affected by a decision
                    of the Court — Requests for permission to intervene : irrelevance of State
                    consent — Incidental proceedings : Court as master of its own jurisdiction —
                    Court’s jurisprudential construction.

                                     I. The Starting Point : the Relevance
                                        of Intervention in International
                                       Litigation and Dispute-Settlement

                        1. Not unlike the other Judgment of the Court also delivered today,
                    in the case concerning the Territorial and Maritime Dispute (Nicaragua v.
                    Colombia) (Application by Costa Rica for Permission to Intervene), the
                    Court has not found, in the present Judgment in the case concerning
                    the Territorial and Maritime Dispute (Nicaragua v. Colombia) (Applica-
                    tion by Honduras for Permission to Intervene), that an interest of a legal
                    nature has been established by the Applicant. Even though this find
                    ing has led the Court not to grant permission to intervene, the possibi
                    lity cannot be excluded that the Court’s conclusion has been to some
                    extent influenced by its tendency to avoid the application of Article 62
                    of its Statute, as examined in our joint dissenting opinion in the
                    other case concerning the Territorial and Maritime Dispute between Nica-
                    ragua and Colombia (Application by Costa Rica for Permission to Inter-
                    vene).
                        2. This does not mean that we dissent from the Court’s finding in the
                    present case concerning the Application by Honduras for permission
                    to intervene. Yet, our concern is to put on record our position regarding
                    the continued propensity of the Court, disclosed in its inconclusive juris-
                    prudence on the matter to date, to decide on policy grounds against
                    the concrete application of the institution of intervention, which we
                    consider to have an important role to play in contemporary international
                     litigation and dispute-settlement. In order to clarify our position in the
                     present case, we deem it appropriate to explain our position with
                     regard to Honduras’s Application for permission to intervene, and
                     the reason why we joined the decision of the Court’s majority in not
                     granting it.

                    50

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                    467 	       territorial and maritime dispute (joint decl.)

                                      II. The Requisites for Intervention

                      3. It should be here recalled that the requisites for intervention in the
                    proceedings before the Court are laid down in Article 62 of the Statute of
                    the ICJ. Article 62 provides that:
                           “1. Should a State consider that it has an interest of a legal nature
                         which may be affected by the decision in the case, it may submit a
                         request to the Court to be permitted to intervene.
                           2. It shall be for the Court to decide upon this request.”
                       4. In the cas d’espèce, the applicant State has not demonstrated that it
                    has an “interest of a legal nature” that may be affected by the decision in
                    the case. As we noted in our joint dissenting opinion in the other case
                    concerning Costa Rica’s Application for permission to intervene, a State
                    seeking to intervene needs to demonstrate that it has an “interest of a
                    legal nature that may be affected by the decision in the case”. In this
                    regard, it seems irrelevant at this stage, for the purpose of assessing the
                    criteria for intervention laid down in Article 62 of the Statute, whether
                    the applicant third-State wishes to intervene as a party or a non-party in
                    the main proceedings.
                       5. In any event, the applicant third-State ought to demonstrate that it
                    has “an interest of a legal nature” which “may be affected” by the deci-
                    sion of the Court on the merits of the case. This is precisely where Hon-
                    duras’s Application fell short of meeting the requisites for intervention,
                    not fulfilling these criteria, which led the Court to its decision not to grant
                    the requested intervention. Honduras’s situation is very specific : the 2007
                    Judgment of the Court in the case of the Territorial and Maritime Dispute
                    between Nicaragua and Honduras in the Caribbean Sea bears the status of
                    res judicata and has thus settled the maritime delimitation between Hon-
                    duras and Nicaragua in the Caribbean Sea.
                       6. Moreover, Honduras has not presented any further maritime fea-
                    tures to be considered in the assessment of its Application for permission
                    to intervene. Likewise, Honduras’s arguments in relation to the 1986
                    Treaty have been rightly dismissed by the Court. The 1986 Maritime
                    Delimitation Treaty between Honduras and Colombia has no incidence
                    on the delimitation between Nicaragua and Colombia and is thus not to
                    have any bearing in the assessment of Honduras’s Application for per-
                    mission to intervene in the present case. In our view, Honduras has thus
                    not demonstrated an interest of a legal nature which may be affected by a
                    decision of the Court in the present case. Accordingly, its Application has
                    not prospered.
                       7. We further note that the Court has devoted some attention to the
                    distinction between “rights” and “legal interests” of third States seeking
                    to intervene. This is, in our view, a positive development in the pursuit of
                    more clarity concerning the foundational bases of the institution of inter-
                    vention : we herein refer to the treatment of this point in our joint dissent-

                    51

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                     468 	         territorial and maritime dispute (joint decl.)

                     ing opinion 1 in the other case resolved by the Court today. Having
                     pointed this out, we turn to the question of the consent of the parties to
                     the main case in relation to an application for permission to intervene.

                                       III. The Irrelevance of State Consent
                                  for the Consideration by the Court of Requests
                                             for Permission to Intervene

                        8. We are of the view that Honduras has not fulfilled the criteria for
                     intervention under Article 62 of the Statute, irrespective of whether the
                     Parties to the main case have or have not consented to the application at
                     issue for permission to intervene. In the present joint declaration, we wish
                     to stress the non-existence of a “requirement” of consent by the parties in
                     the main case, in relation to the requisites for applications for permission
                     to intervene set forth in Article 62 of the ICJ Statute. In our view, such
                     consent by the main parties to the proceedings is irrelevant to the assess-
                     ment of an application for permission to intervene, and cannot be per-
                     ceived as a requirement under Article 62 of the Statute of the Court.
                        9. In effect, in the case concerning the Land, Island and Maritime
                     Frontier Dispute (El Salvador/Honduras), Application for Permission to
                     Intervene, Judgment, I.C.J. Reports 1990, the Court’s Chamber, having
                     found that Nicaragua had “an interest of a legal nature”, permitted Nica-
                      ragua to intervene ; it further made a precision as to consent which should
                      not pass unnoticed here. The Court’s Chamber clarified therein that the
                      competence of the Court is not, like its competence to hear and determine
                      the dispute referred to it, derived from the consent of the parties to the
                      case. The consent required is the consent originally given by them in
                      becoming parties to the Court’s Statute, or in recognizing its jurisdiction
                      through other instrumentalities, such as compromissory clauses. The
                      Court does not need to seek for State consent in a recurring way, in the
                      course of the proceedings of a case.

                       10. State consent also has its limits, in respect of applications for per-
                     mission to intervene. The Court’s Chamber thus upheld the view that the
                     Court was endowed with competence to permit an intervention even
                     though it may be opposed by one or even both of the parties to the case.
                     In the aforementioned case concerning the Land, Island and Maritime
                     Frontier Dispute (El Salvador/Honduras), Honduras considered that
                     Nicaragua had demonstrated a legal interest, but El Salvador had denied
                     that Nicaragua had a case for intervention (paras. 69‑70). Yet, the Court’s

                        1 Cf., on this particular point, our joint dissenting opinion in the case concerning the

                     Territorial and Maritime Dispute (Nicaragua v. Colombia), Application by Costa Rica for
                     Permission to Intervene, Judgment, I.C.J. Reports 2011 (II), pp. 405-407, paras. 9-14).

                     52

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                     469 	         territorial and maritime dispute (joint decl.)

                     Chamber, as already indicated, permitted Nicaragua to intervene on the
                     basis of Article 62 of the Statute. It did so, correctly, in our view.

                        11. Paragraph 28 of the present Judgment in the case concerning the Ter‑
                     ritorial and Maritime Dispute between Nicaragua and Colombia (Application
                     by Honduras for Permission to Intervene) brings clarification to the existence
                     of a common basis of jurisdiction as between the States concerned only for
                     intervention as a party, but this does not apply to non-party intervention. In
                     the same paragraph 28 of the present Judgment, the Court has found that a
                     jurisdictional link between the State seeking to intervene and the parties to
                     the main case “is not a condition for intervention as a non-party”.
                        12. We agree with this conclusion of the Court, and, in this respect, we
                     further recall that, in their respective dissenting opinions in the case con-
                     cerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Applica‑
                     tion by Italy for Permission to Intervene, Judgment, I.C.J. Reports 1984,
                     Judges Sette-Câmara and Oda found that the Italian Application fulfilled
                     the conditions for intervention under Article 62, and questioned the need
                     of a “jurisdictional link” with the parties in the main legal proceedings.
                     Likewise, in his dissenting opinion, Judge Ago discarded the need for the
                     Court to be provided with a title of jurisdiction, and found in favour of
                     the Italian Application as a “typical” example of intervention as an inci-
                     dental proceeding.

                        13. In any case, the reasoning of the Court on the aforementioned
                     point — pertaining to intervention in international legal proceedings —
                     sets clearly aside the issue of State consent, a position which we fully
                     share. Our understanding is in the sense that the consent of the parties to
                     the main case is not, in any way, a condition for intervention as a non-
                     party. The Court is, anyway, the master of its own jurisdiction, and does
                     not need to concern itself with the search for State consent in deciding on
                     an application for permission to intervene in international legal proceed-
                     ings.
                        14. In effect, third party intervention under the Statute of the Court
                     transcends individual State consent. What matters is the consent origi-
                     nally expressed by States in becoming parties to the Court’s Statute, or in
                     recognizing the Court’s jurisdiction by other instrumentalities, such as
                     compromissory clauses. The Court’s Chamber itself rightly pointed out,
                     in the Judgment of 1990 in the case concerning the Land, Island and Mari
                     time Frontier Dispute (El Salvador/Honduras), Application by Nicaragua
                     for Permission to Intervene, that the competence of the Court, in the par-
                     ticular matter of intervention, “is not, like its competence to hear and
                     determine the dispute referred to it, derived from the consent of the par-
                     ties to the case” 2.

                        2 Case concerning the Land, Island and Maritime Frontier Dispute (El Salvador/

                     Honduras), Application by Nicaragua for Permission to Intervene, Judgment, I.C.J. Reports
                     1990, p. 133, para. 96).

                     53

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                     470 	       territorial and maritime dispute (joint decl.)

                        15. There is no need for the Court to keep on searching instinctively
                     for individual State consent in the course of the international legal pro-
                     ceedings. After all, the consent of contending States is alien to the institu-
                     tion of intervention under Article 62 of the ICJ Statute. We trust that the
                     point we make here, in the present joint declaration, regarding the irrele-
                     vance of State consent in the consideration by the Court of applications
                     for permission to intervene, under Article 62 of the Court’s Statute, may
                     be helpful to elucidate the positions that the Court may take on the mat-
                     ter in its jurisprudential construction.

                                            (Signed) Antônio Augusto Cançado Trindade.
                                                  (Signed) Abdulqawi Ahmed Yusuf.

                     54

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