                               SEPARATE OPINION OF JUDGE YUSUF

      Disagreement with reasoning leading to determination of amounts of compensation —
Disagree also with radical reversal of burden of proof — It requires Uganda to prove double
negative fact with respect to injuries in Ituri — A requirement not supported by practice of the
Court — Also, inconsistent with nature of duty of vigilance incumbent upon occupying Power as
obligation of conduct — Determination of “global sums” by reference to equitable considerations
and “range of possibilities indicated by evidence” leaves much to be desired — Equitable
considerations not a substitute for a reasoned analysis — Gives impression of decision ex aequo
et bono without Parties’ consent — Overly narrow approach to reparations ignores that damage
caused by Uganda’s conduct was to human beings — Individuals and communities should have been
primary beneficiaries of certain types of reparations — State-centred approach to reparation
ignores recent developments in human rights and international humanitarian law — “Global sums”
makes distribution of funds by DRC to affected communities and individuals more difficult —
Collective reparations would constitute more appropriate form of reparation for certain heads of
damage.

                                      I. Introductory remarks

       1. I have voted with reluctance in favour of the dispositif of this Judgment. The overall amount
of compensation awarded by the Court seems reasonable, given the circumstances that have
characterized these proceedings. I do not, however, agree with the reasoning that led to this decision
or, with regard to certain aspects, the lack of appropriate analysis or explanation; and the radical
reversal of the burden of proof which requires the Republic of Uganda (“Uganda”) to prove a double
negative fact with respect to injuries that occurred in Ituri. I also disagree with the manner in which
the various components of the award were determined; and the designation of the State of the
Democratic Republic of Congo (“DRC”) as the sole beneficiary of compensation, thus paying little
or no attention to the rights of communities and individuals to reparation for harm suffered as a result
of gross violations of human rights and international humanitarian law by Uganda during the armed
conflict.

      2. This phase of the proceedings in the case concerning Armed Activities on the Territory of
the Congo offered the Court a unique opportunity to make a substantial contribution to the
development of the jurisprudence on reparations for injury in international law. It is a pity that such
an opportunity has been missed. It is of course regrettable that the Applicant did not present sufficient
evidence that would enable the Court to come to clear conclusions with respect to the damage caused
by Uganda’s wrongful conduct, and the valuation of that damage. I am, however, of the view that
the Court could have done better despite the fact that satisfactory evidence was not put at its disposal.

                                  II. Evidence and burden of proof

      3. In its 2005 Judgment, the Court stated that, failing agreement between the Parties,

            “The DRC would thus be given the opportunity to demonstrate and prove the
      exact injury that was suffered as a result of specific actions of Uganda constituting
      internationally wrongful acts for which it is responsible. It goes without saying,
      however, as the Court has had the opportunity to state in the past, ‘that in the phase of

                                                             -2-

        the proceedings devoted to reparation, neither Party may call in question such findings
        in the present Judgment as have become res judicata’” 1 (emphasis added).

This standard is consistent with the express acknowledgement made by the DRC in the oral hearings
at the time that “for the purposes of determining the extent of reparation it must specify the nature of
the injury and establish the causal link with the initial wrongful act”2.

      4. The Court had given ample opportunity to the Applicant to demonstrate and prove the injury
that was suffered as a result of the wrongful actions of Uganda for which it was found responsible
in 2005. The Parties had more than ten years to resolve the issue of reparation through negotiations,
during which they could have collected evidence and information to assist their negotiations, or for
the purposes of litigation if these negotiations were to fail. After the filing of the Parties’ pleadings,
the Court also availed itself of its powers, under Article 62, paragraph 1, of its Rules, to elicit further
information from the Parties, requesting additional information, evidence and explanations with
respect to the various heads of damages and the methodologies proposed by the Parties.

       5. As noted in various parts of the Judgment, the DRC has failed to furnish appropriate
evidence with respect to the injuries suffered and “the evidence included in the case file by the DRC
is, for the most part, insufficient to reach a precise determination of the amount of compensation
due” (paragraph 125). Faced with this situation, the Court had to take into account other sources of
evidence, such as the reports of the United Nations, and those of other intergovernmental
organizations and governmental commissions, including the Porter Judicial Commission of Inquiry
established by Uganda. It also took into consideration the reports of the Court-appointed experts
where it considered them relevant. This is all well and good. The Court could not have done otherwise
under the present circumstances in order to fulfil its judicial function.

      6. However, with regard to the injuries that occurred in Ituri, the Judgment’s reasoning is
predicated on a radical reversal of the burden of proof upon the Respondent. According to
paragraph 78,

        “it is for Uganda to establish, in this phase of the proceedings, that a particular injury
        alleged by the DRC in Ituri was not caused by Uganda’s failure to meet its obligations
        as an occupying Power. In the absence of evidence to that effect, it may be concluded
        that Uganda owes reparation in relation to such injury.”

       7. The same standard of proof is expressed at various points throughout the Judgment,
concerning the causal nexus between the internationally wrongful acts and the injury suffered
(paragraph 95), the burden and standard of proof (paragraph 118), the determination of the extent of
the loss of life and other damage to persons in Ituri (paragraphs 149, 155, 161 and 226) as well as
damage to property and public infrastructure in Ituri (paragraphs 241 and 257).

       8. In essence, the Judgment requires Uganda to prove a double negative fact, namely that every
“particular injury” in Ituri that is alleged by the DRC was “not caused” by its “failure” as the
occupying Power. If Uganda fails to do so, the Court will make inferences both that the injury alleged

        1 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.

Reports 2005, p. 257, para. 260.
         2 Ibid., p. 256, para. 258; see also CR 2005/5, p. 53 (original p. 57), para. 20 (Salmon) (“The [DRC] does not deny

that, for purposes of determining the extent of the reparation, it must specify the nature of the injury and establish the causal
link with the initial wrongful act.”) [Translation by the Registry.]

                                                       -3-

by the DRC has occurred, and that this particular injury was causally linked to Uganda’s “failure” to
comply with its obligations in Ituri. Such a strict standard places upon Uganda the task of identifying
all instances of alleged injury that occurred in Ituri after so many years (even if Uganda is no longer
in effective control of that territory); tracing the original cause of that injury to the responsible actor
(whether within its sphere of control at the time, or not), and demonstrating the absence of a causal
nexus between that damage and its own conduct. Thus, so long as the Applicant makes a prima facie
allegation with respect to a “particular injury” in Ituri, the entire burden of proof is placed on the
shoulders of the Respondent to disprove these allegations and, in the absence of evidence, an injury
causally linked to Uganda’s failures is presumed to have been proven.

       9. It is to be noted, however, that even though the standard is repeatedly articulated in several
paragraphs of the Judgment as mentioned above, it is not analysed anywhere in the Judgment with
respect to the various heads of damage such as loss of life, personal injuries, property loss or natural
resources. The Judgment mentions very briefly in two concluding paragraphs (paragraphs 161
and 226) that Uganda did not produce evidence to establish that “particular injuries” alleged by the
DRC were “not caused” by its “failures” without any analysis of the evidence Uganda was expected
to produce in accordance with this standard. This raises the question as to the purpose of the repeated
assertion of this standard in the Judgment if it was not going to be applied to the facts of the case and
to the evidence expected from Uganda.

       10. In an effort to justify this unprecedented and exceptional evidentiary burden placed on
Uganda, references are made in the Judgment to the Corfu Channel and the Diallo cases. However,
none of the Judgments in those cases provides support to such a radical reversal of the burden of
proof. Paragraphs 120 and 157 of the Judgment refer to the Judgment in the Corfu Channel case in
support of the proposition that the Court may have “a more liberal recourse to inferences of fact and
circumstantial evidence” in cases where a State that “would normally bear the burden of proof has
lost effective control over the territory where crucial evidence is located on account of the belligerent
occupation of its territory by another State”3. This is quite true, but the standard of proof applied in
the present Judgment differs from the principles enunciated in Corfu Channel with respect to the
allocation of the burden of proof. In the latter case, the Court stated that, when the victim of a breach
of international law is unable to furnish direct proof of facts giving rise to responsibility due to the
exclusive territorial control exercised by another State within its frontiers (as is the case here, with
respect to the wrongful occupation of Ituri), the Court may resort to “a more liberal recourse to
inferences of fact and circumstantial evidence” as indirect evidence that an injurious event has
occurred within that territory.

       11. The Court, however, was clear that such reasonable inferences did not involve a reversal
of the burden of proof of the kind contemplated in paragraph 78 of the Judgment:

              “It is true, as international practice shows, that a State on whose territory or in
      whose waters an act contrary to international law has occurred, may be called upon to
      give an explanation. It is also true that that State cannot evade such a request by limiting
      itself to a reply that it is ignorant of the circumstances of the act and of its authors. The
      State may, up to a certain point, be bound to supply particulars of the use made by it of
      the means of information and inquiry at its disposal. But it cannot be concluded from
      the mere fact of the control exercised by a State over its territory and waters that that
      State necessarily knew, or ought to have known, of any unlawful act perpetrated therein,
      nor yet that it necessarily knew, or should have known, the authors. This fact, by itself

      3 Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 18.

                                                            -4-

        and apart from other circumstances, neither involves prima facie responsibility nor
        shifts the burden of proof.” 4 (Emphasis added.)

Thus, in Corfu Channel the Court made a distinction between, on the one hand, drawing adverse
inferences where a State having effective control over a certain territory fails to produce explanations
and information at its disposal to demonstrate that it complied with its international obligations and,
on the other hand, the reversal of the burden of proof upon the respondent, which is required to
disprove the allegations of the applicant with adequate evidence. This distinction, which is crucial to
the sound administration of justice and the equitable distribution of the burden of proof, is totally
ignored in the Judgment.

       12. Regarding the Ahmadou Sadio Diallo case, paragraph 116 of the Judgment refers to the
fact that the rule onus probandi incumbit actori has been applied “flexibly” in cases where the
respondent was in a better position to establish certain facts that lay within its control. In the merits
phase of Diallo, the Court held that

        “where, as in these proceedings, it is alleged that a person has not been afforded, by a
        public authority, certain procedural guarantees to which he was entitled, it cannot as a
        general rule be demanded of the Applicant that it prove the negative fact which it is
        asserting. A public authority is generally able to demonstrate that it has followed the
        appropriate procedures and applied the guarantees required by law — if such was the
        case — by producing documentary evidence of the actions that were carried out.” 5
        (Emphasis added.)

       13. This passage calls for certain observations. As a preliminary remark, paragraph 116 of the
Judgment refers to the Diallo Judgment in the compensation phase as opposed to the Judgment on
the merits, thus giving the impression that the Court reversed the burden of proof for the purposes of
establishing the injury suffered by Mr. Diallo within the territory of the DRC. But in the
compensation phase of Diallo, the Court did not shift the burden of proof to the DRC in order to
demonstrate that the injury alleged by Guinea had not been “caused” by its “failure” to comply with
its procedural human rights obligations. On the contrary, it rejected Guinea’s claims to compensation
for the pecuniary damage caused by the loss of luxury goods, bank accounts, and the loss of
professional remuneration during Mr. Diallo’s unlawful detentions and after his expulsion,
specifically due to the applicant’s — not the respondent’s — failure to produce adequate evidence 6.
Conversely, the two sums of compensation awarded (for non-pecuniary harm and personal effects)
were not premised on the shifting of the evidentiary burden, but rather on the evidence presented by
the applicant and equitable considerations 7. It follows that the Diallo Judgment in the compensation
phase does not provide a basis for the radical reversal of the burden of proof enunciated in
paragraph 78 of the Judgment.

        4 Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 18.

        5 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Merits, Judgment,

I.C.J. Reports 2010 (II), pp. 660-661, para. 55.
        6 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment,

I.C.J. Reports 2012 (I), p. 338, para. 34 (“Guinea has put forward no evidence whatsoever” to support its claim for luxury
goods and “[f]or these reasons, the Court rejects Guinea’s claims as to the loss of high-value items not specified on the
inventory”) and para. 35 (“Guinea offers no details and no evidence to support its claim” for bank accounts and “[t]hus, it
has not been established that Mr. Diallo lost any assets held in his bank accounts in the DRC”); pp. 340 et seq., paras. 41-43,
46 and 50 (noting that “Guinea offers no evidence to support the claim” for loss of earnings and that “Guinea has not proven
to the satisfaction of the Court that Mr. Diallo suffered a loss of professional remuneration”).
        7 Ibid., pp. 334-335, paras. 24-25 (for non-material injury); pp. 337-338, paras. 32-33, 36 (for personal belongings).

                                                           -5-

       14. Nor does the Diallo Judgment in the merits phase provide support for this legal proposition.
In fact, the Court did not place the entire burden of proof on the respondent’s shoulders; rather, it
dismissed certain allegations of exceptional gravity made by Guinea in the absence of proof; it did
not presume the occurrence of these facts on the basis of the DRC’s failure to produce evidence to
disprove them 8. Furthermore, the Court’s reasoning in paragraph 54 of the merits Judgment of Diallo
was guided by a marked concern not to require the applicant in those proceedings to demonstrate
“negative facts” in relation to incidents that occurred outside its territory or control (see paragraph 12
above). It is on that basis that the Court shifted the burden on the respondent to establish, for specific
factual issues raised in the applicant’s claims (but by no means the entirety of these claims), that it
complied with its procedural obligations under international human rights law9 and consular law 10.

       15. Thus, it seems quite odd to rely on the principles enunciated in Diallo as the basis for
requiring Uganda to establish two negative facts (i.e. that an unspecified injury was “not caused” by
“its failure”). A more reasonable application of the principle enunciated in Diallo would have been
to require Uganda to establish positive facts lying within its sphere of control, namely that it took
adequate and effective measures to prevent in Ituri the injuries alleged by the Applicant, in line with
its duty of vigilance.

       16. The radical reversal of the burden of proof is also inconsistent with the nature of the duty
of vigilance incumbent upon the occupying Power as an obligation of due diligence, rather than an
obligation of result. The nature of the primary obligation that has been breached is of key import to
the allocation of the burden of proof. As stated in Diallo, and subsequently reaffirmed in Croatia v.
Serbia with regard to alleged genocidal acts, “[t]he determination of the burden of proof is in reality
dependent on the subject-matter and the nature of each dispute brought before the Court; it varies
according to the type of facts which it is necessary to establish for the purposes of the decision of the
case” 11.

        17. It follows that when the Court decides how to allocate the burden of proof between the
parties, it must pay close attention to the nature of the primary obligation that has been breached and
the circumstances of each case. In the present case, the Court found that Uganda was responsible in
Ituri for the violation of Article 43 of the Hague Regulations of 1907, which reads as follows:

        8 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 (noting that Guinea had “failed to demonstrate convincingly that Mr. Diallo was
subjected to [inhuman and degrading] treatment during his detention” and that “[t]here [wa]s no evidence to substantiate
the allegation that he received death threats”).
         9 Ibid., pp. 668-669, para. 79 (noting that the DRC had “produced no evidence” to prove that the Congolese

authorities sought to determine whether it was necessary to detain Mr. Diallo, or that his detention was reviewed every
48 hours, as required by Congolese law); p. 669, para. 82 (noting that the DRC had “never been able to provide grounds
which might constitute a convincing basis for Mr. Diallo’s expulsion”); p. 670, para. 84 (noting that the DRC had “failed
to produce a single document or any other form of evidence to prove” that Mr. Diallo had been informed, at the time of
arrest, of the reasons for his arrest).
        10 Ibid., p. 673, para. 96 (noting that the DRC had not provided “the slightest piece of evidence to corroborate” its

claim that it had orally informed Mr. Diallo of the possibility of seeking consular assistance from his State).
        11 Ibid., p. 660, para. 54. See also Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Croatia v. Serbia), Judgment, I.C.J. Reports 2015 (I), pp. 73-74, paras. 172 and 174 (“In the present case, neither
the subject-matter nor the nature of the dispute makes it appropriate to contemplate a reversal of the burden of proof. It is
not for Serbia to prove a negative fact, for example the absence of facts constituting the actus reus of genocide”).

                                                          -6-

             “The authority of the legitimate power having in fact passed into the hands of the
       occupant, the latter shall take all the measures in his power to restore, and ensure, as far
       as possible, public order and safety, while respecting, unless absolutely prevented, the
       laws in force in the country.” 12

       18. Article 43 of the Hague Regulations of 1907 imposes a duty of vigilance upon the
occupying Power to ensure respect for public order and safety in the occupied territory both by its
own forces and private parties 13. As the Court stated in 2005, Uganda was under an obligation under
that provision

       “to take all the measures in its power to restore, and ensure, as far as possible, public
       order and safety in the occupied area, while respecting, unless absolutely prevented, the
       laws in force in the DRC. This obligation comprised the duty to secure respect for the
       applicable rules of international human rights law and international humanitarian law,
       to protect the inhabitants of the occupied territory against acts of violence, and not to
       tolerate such violence by any third party.

              The Court, having concluded that Uganda was an occupying Power in Ituri at the
       relevant time, finds that Uganda’s responsibility is engaged both for any acts of its
       military that violated its international obligations and for any lack of vigilance in
       preventing violations of human rights and international humanitarian law by other actors
       present in the occupied territory, including rebel groups acting on their own account.” 14

        19. In line with this interpretation, the “duty of vigilance” incumbent upon the occupying
Power by Article 43 of the Hague Regulations is not an obligation to achieve a particular result at all
times and whatever the circumstances 15, but an obligation of conduct, which required Uganda to
“take appropriate measures” to prevent wrongful acts committed by private persons in Ituri district,
such as pillaging, looting and violations of human rights and humanitarian law 16. Pursuant to that
duty, Uganda was not responsible for every kind of injury or damage that might have occurred in
Ituri at all times and places during its occupation, but only for those damages and injuries that could
have been averted, had Uganda taken adequate and effective measures of diligence — the existence
of which should normally be within Uganda’s ability to prove to the Court.

      20. It follows, in my view, that the shifting of the evidentiary burden for the purposes of
quantification of damage cannot go beyond what was required by Uganda under the primary rule. As

       12 Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Annex:

Regulations concerning the Laws and Customs of War on Land, Sect. III, Art. 43.
       13 Eritrea-Ethiopia Claims Commission, Partial Award: Central Front — Eritrea’s Claims 2, 4, 6, 7, 8 & 22,

Decision of 28 April 2004, United Nations, Reports on International Arbitral Awards (RIAA), Vol. XXVI, pp. 138-139,
para. 67 (“Whether or not Ethiopian military personnel were directly involved in the looting and stripping of buildings in
the town, Ethiopia, as the Occupying Power, was responsible for the maintenance of public order, for respecting private
property, and for preventing pillage. Consequently, Ethiopia is liable for permitting the unlawful looting and stripping of
buildings in the town during the period of its occupation.”)
       14 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.

Reports 2005, p. 231, paras. 178-179.
        15 See, mutatis mutandis, Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 221, para. 430 (“[a] State does not
incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State
manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed
to preventing the genocide”).
       16 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.

Reports 2005, p. 253, paras. 248 and 250.

                                                         -7-

noted in the Commentary to Article 36 of the International Law Commission’s (“ILC”) Articles on
Responsibility of States for Internationally Wrongful Acts, the principles to be applied in the
quantification of damages “will vary, depending upon the content of particular primary
obligations” 17. When determining the allocation of the burden of proof, Uganda may only be required
to prove what was required of it by Article 43 of the Hague Regulations, i.e. that it took “all the
measures in [its] power to restore, and ensure, as far as possible, public order and safety”. The Court
cannot expect Uganda to disprove each and every injury in Ituri alleged by the DRC, or prove that
such injury was “not caused” by its “failures”. To do so is to extend ex post facto the scope of
Uganda’s primary obligations under the law of occupation through the mechanism of responsibility.

       21. In light of the foregoing, I am of the view that a more balanced outcome could have been
achieved through a nuanced allocation of the burden of proof, which would be more in tune with the
content of the primary obligation in question that has been breached. In accordance with the
onus probandi rule, it should fall upon the DRC to establish the extent of the injuries suffered in Ituri,
as the Court held with respect to other regions of the DRC’s territory and in paragraph 260 of the
2005 Judgment. In line with Article 43 of the 1907 Hague Regulations, Uganda would bear the onus
to prove that it took measures in compliance with its duty of vigilance, or that the injury would have
occurred even if Uganda had taken adequate and effective measures. The burden would then shift to
the DRC to disprove Uganda’s contentions. This would be without prejudice to the rule that the
distribution of the burden of proof “does not relieve the other party of its duty to co-operate ‘in the
provision of such evidence as may be in its possession that could assist the Court in resolving the
dispute submitted to it’” 18. In line with the Corfu Channel principle, the Court would then be at
liberty to draw reasonable inferences from the Parties’ submissions. It is regrettable that the Court
has not opted for this approach in the present circumstances.

                                  III. Assessment and valuation of damage

        22. In view of the deficiencies or, in certain cases, total lack of evidence presented by the DRC,
the Court had to make extensive use of information in United Nations reports on the conflict in the
DRC and, with respect to certain heads of damage, to rely on the reports of the experts appointed by
it in evaluating the damage and the amount of compensation due (paragraph 31). However, in several
instances, the Court had to conclude that neither the materials at its disposal nor the reports of the
Court-appointed experts provided sufficient evidence to assess the damage suffered by the DRC or
by the persons in its territory or to quantify such damage, sometimes even on an approximative basis
(see, for example, paragraphs 179, 190 and 363-364). In an attempt to fill this void, the Court resorts
to two concepts, the reasons for the use of which are neither adequately explained in the Judgment
nor are they necessarily always clearly articulated in order to arrive at the determination of
compensation in the form of “global sums”. These concepts are “equitable considerations” and the
“range of possibilities indicated by the evidence”.

       23. The Judgment refers to equitable considerations as the basis of awarding compensation in
the form of a lump sum nine times (cf. paragraphs 106, 164, 166, 181, 193, 206, 225, 258 and 365).
Equity is also implied in different parts of the Judgment, related to the difficulties faced by the DRC
in the collection of evidence, the non-punitive character of compensation, the potential onerousness
of compensation for Uganda and the “reasonableness” of compensation. At the same time, the
Judgment uses an obscure concept of the “range of possibilities indicated by the evidence” (cf.

       17 Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 100, commentary to Article 36.

       18 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),

Judgment, I.C.J. Reports 2015, p. 73, para. 173; Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J.
Reports 2010 (I), p. 71, para. 163.

                                                         -8-

paragraphs 106, 126, 166, 181, 193, 206, 223, 225, 258, 275 and 365), a term hitherto unknown in
the jurisprudence of the Court which leaves much to be desired.

       24. Of course, it is not disputed that the Court may, for the purposes of determining
compensation for an internationally wrongful act, rely upon equitable considerations in order to reach
a fair and reasonable amount of compensation 19. However, there is an essential difference between
determining compensation by reference to equitable considerations, and determining compensation
ex aequo et bono, within the meaning of Article 38, paragraph 2, of the Statute. A decision ex aequo
et bono is to be understood as equity contra legem 20, that is to say a decision arrived at not on the
basis of certain rules of international law applicable between the parties, but rather “as a matter of
abstract justice” 21. By contrast, equitable considerations are of an essentially legal character (equity
infra legem) and should be understood within the legal framework governing the judicial function of
the Court. They cannot serve as the basis to dispense with the applicable rules altogether, or not to
provide reasons for their applicability. The Court should have made an attempt at explaining how it
intends to apply equity within the general framework of State responsibility and the procedural
framework governing the fact-finding procedure before it.

       25. Unfortunately, the Judgment seems to rely upon equitable considerations as a substitute
for a reasoned analysis that would identify the evidence presented by the Parties as corroborating —
albeit in an approximative manner — the extent of the injury caused by Uganda, and a cognizable
method for the valuation of that injury. Instead of specifying a method of valuation deemed to be
appropriate, the Judgment utilizes equitable considerations as a convenient shorthand in order to
reach what is referred to in the Judgment as “global sums” (paragraphs 106-107).

      26. This includes a “single global sum” of US$225,000,000 for the loss of life and other
damage caused to persons 22 (paragraph 226), a “global sum” of US$40,000,000 for damage to public
and private property (paragraph 258) and a “global sum” of US$60,000,000 for damage caused by
the exploitation of natural resources (paragraphs 364-366). It is not, however, possible to understand
from the text of the Judgment how the Court has arrived at these figures. There is no indication as to
how the different components of these sums were determined, or the way in which these figures may
be justified by the facts. Thus, the impression to the reader is that the Court has arrived at these
figures by way of ex aequo et bono, not on the basis of law and evidence.

       27. Equitable considerations are relevant primarily for the quantification of damages where
the nature of the harm or the circumstances of the dispute make it difficult or impossible to define
the value of harm with a high degree of certainty. In such circumstances, it would be contrary to the
principle of equity to deny compensation to the injured party for objective circumstances that cannot
be attributed to its fault or sphere of responsibility. As the Court recognized in the case concerning
Certain Activities Carried Out by Nicaragua in the Border Area relying on the Trail Smelter case:

       19 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation,

Judgment, I.C.J. Reports 2018 (I), pp. 26-27, para. 35; Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic
of the Congo), Compensation, Judgment, I.C.J. Reports 2012 (I), p. 337, para. 33.
       20 Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, I.C.J. Reports 1986, p. 567, para. 28.

        21 North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 47, para. 85; Land, Island and Maritime Frontier Dispute
(El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J. Reports 1992, pp. 390-391, para. 47.
       22 See, in particular, paragraph 66 of the Judgment for the loss of life, paragraph 181 for non-lethal injuries,

paragraph 193 for rape and sexual violence, paragraph 206 for child soldiers; and paragraph 225 for the displacement of
persons.

                                                         -9-

              “Where the tort itself is of such a nature as to preclude the ascertainment of the
       amount of damages with certainty, it would be a perversion of fundamental principles
       of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from
       making any amend for his acts. In such case, while the damages may not be determined
       by mere speculation or guess, it will be enough if the evidence show the extent of the
       damages as a matter of just and reasonable inference, although the result be only
       approximate.” 23

       28. Nevertheless, recourse to equitable principles is not unfettered. Indeed, it “should not be
used to make good the shortcomings in a claimant’s case by being substituted for evidence which
could have been produced if it actually existed” 24. Nor can equitable considerations be used as an
excuse to depart from the Court’s judicial function. Pursuant to Article 56 of the Court’s Statute, a
judgment shall state the reasons on which it is based. This obligation stems from the inherently
judicial character of the Court 25. It contributes not only to greater transparency in the Court’s
decision-making function, but also to the authority and persuasiveness that its Judgments command
in the field of international law.

       29. While the Court has in the past had recourse to equitable considerations for the purposes
of quantification of damage, it has never used them as a device to award “global sums” without
providing an explanation of how these amounts were reached. In the case of Ahmadou Sadio Diallo,
the Court dismissed those claims which it found not to have been proven with sufficient evidence. It
then awarded compensation for the non-material damage caused to Mr. Diallo and the pecuniary loss
for his personal belongings, relying, on the one hand, on the practice of regional human rights courts
and tribunals on this topic and the circumstances surrounding Mr. Diallo’s treatment 26; and, on the
other hand, an approximation of the value of the assets of Mr. Diallo’s apartment based on the
inventory of his apartment and his personal property in the DRC, as well as the practice of human
rights bodies on the same topic 27.

       30. Similarly, in Certain Activities Carried Out by Nicaragua in the Border Area, the Court
did not award a “global sum”, but itemized amounts of compensation, namely, (a) US$120,000 for
the impairment or loss of environmental goods and services; (b) US$2,708.39 for the restoration
costs claimed by the Republic of Costa Rica in respect of the internationally protected wetland; and
(c) US$236,032.16 for costs and expenses incurred by Costa Rica as a direct consequence of the
Republic of Nicaragua’s unlawful activities on Costa Rican territory. Whilst the latter two categories

      23 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation,

Judgment, I.C.J. Reports 2018 (I), p. 27, para. 35, citing Trail Smelter case (United States, Canada), 16 April 1938 and
11 March 1941, RIAA, Vol. III, p. 1920.
        24 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, I.C.J. Reports

2012 (I), declaration of Judge Greenwood, p. 393, para. 5.
        25 Cf. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion,

I.C.J. Reports 1954, pp. 52-53.
       26 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment,

I.C.J. Reports 2012 (I), pp. 334-335, paras. 24-25.
       27 Ibid., pp. 337-338, paras. 31-33 and 36.

                                                            - 10 -

were premised on a detailed scrutiny of the respective invoices, documents and expenses submitted
by the parties 28, with respect to the first category the Court considered that it was

        “appropriate to approach the valuation of environmental damage from the perspective
        of the ecosystem as a whole, by adopting an overall assessment of the impairment or
        loss of environmental goods and services prior to recovery, rather than attributing values
        to specific categories of environmental goods and services and estimating recovery
        periods for each of them” 29.

      31. Notwithstanding this language that might imply recourse to equitable considerations, the
Court distinguished between the identification of the injury and its valuation and made clear which
heads of loss were dismissed within that claim for lack of proof 30. With respect to valuation, the
Court rejected the two methods proposed by the Parties and instead addressed the “corrected
analysis” to Costa Rica’s method (presented by Nicaragua) which provided a basis for the Court’s
valuation 31.

        32. Contrary to the practice of the Court, the Judgment does not offer either an approximative
identification of the injury caused by Uganda to the DRC, nor does it proffer a methodological basis
upon which the “global sums” were arrived at. With respect to the identification of the injury, the
Judgment discusses the evidence presented by the Parties, but does not provide any conclusions on
the estimates arrived by the Court (except with respect to heads of damage on the loss of life and
population displacement, cf. paragraphs 162, 166 and 223 of the Judgment) that might have served
as the basis of these “global sums”. In most instances — again, with the exception of loss of life and
population displacement — no precise numbers are given. In fact, the Judgment acknowledges that
it is “impossible to determine, even approximately, the number of persons injured” (paragraphs 179
and 181); that “it is impossible to derive even a broad estimate of the number of victims of rape and
other forms of sexual violence from the reports and other data available to it” (paragraph 190); that
“[t]he evidence presented by the DRC does not permit the Court to assess the extent of the damage
even approximately” with respect to property damage in and outside Ituri (paragraphs 246 and 251);
and that “the available evidence is not sufficient to determine a reasonably precise or even an
approximate number of animal deaths for which Uganda owes reparation” (paragraphs 363 and 364).
Instead, the Judgment refers to the “range of possibilities indicated by the evidence” (paragraphs 106,
126, 166, 181, 193, 206, 223, 225, 258, 275 and 365) to justify these “global sums”. But it does not
explain what this “range” is.

       33. In fact, the impression is given that the “range of possibilities” pertains not so much to the
extent of the injury, but the general adequacy of the evidence to sustain the claim. If this “range of
possibilities” is a broad estimate of the numbers of victims killed or injured on the basis of the
evidence, or of the property or resources destroyed or looted during the conflict, the Statute requires
the Court to specify what these estimates are, even at a broad brush. Otherwise, the application of
such a vague concept may be understood as an attempt to dispense with the proper consideration and

        28 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation,

Judgment, I.C.J. Reports 2018 (I), pp. 41-45, paras. 92-105 (in relation to expenses incurred for fuel and maintenance
services for police aircraft used to reach and overfly the northern part of Isla Portillos, as well as the cost of obtaining a
report from UNITAR/UNOSAT); pp. 48-53, paras. 115-132 (in relation to expenses for overflights and the purchase of
satellite images); and p. 56, para. 146 (in relation to the cost incurred for the construction of a dyke across the 2013 eastern
caño).
        29 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation,

Judgment, I.C.J. Reports 2018 (I), p. 37, para. 78.
        30 Ibid., p. 36, para. 74 (namely, natural hazards mitigation and soil formation/erosion control).

        31 Ibid., pp. 38-39, para. 86.

                                                       - 11 -

proof of facts, or of classes of facts, in the assessment of damage. In any event, such an obscure term
does not seem appropriate, in my view, for compensation proceedings. A smörgåsbord of
possibilities cannot serve as a substitute for a legal standard in the assessment and valuation of
damage.

       34. Similar considerations apply to the valuation of the unparticularized injuries.
Paragraphs 164 and 180 refer to the awards of the Ethiopia-Eritrea Claims Commission (“EECC”)
for the proposition that “large per capita awards for non-material damage, which may be justified in
individual cases, would be inappropriate in a situation involving significant numbers of unidentified
and hypothetical victims”. But the Judgment does not explain on what methodological basis the
valuation was based for the purposes of the “global sums”. If the Court opted for smaller per capita
awards than those applied in individual human rights cases, at least an attempt ought to have been
made at articulating the methodological premise of these lump sums. It is only with respect to
decisions ex aequo et bono that the Court is not required to provide reasons.

      35. In light of the foregoing, I am of the view that the mere reference to “equitable
considerations” cannot serve as an excuse for the Court to dispense with the requirement to state the
reasons underlying its decisions. The Court may propose an equitable remedy and apply it; but it has
to explain why and on what basis it intends to apply it. It cannot simply refer to it as the be-all and
end-all of the assessment of injury or the determination of compensation without any reasoning.

       36. Indeed, a decision on compensation that does not identify the extent of the harm, the
applicable valuation method and the extent to which other factors might have influenced the
quantification of damage does not conform to the requirements of Article 56 of the Statute and may
be considered as a decision ex aequo et bono under Article 38, paragraph 2. However, the Parties in
the present case have not given their consent to such a decision.

                              IV. An overly narrow approach to reparations

       37. In its 2005 Judgment, the Court stated that,

       “[u]pon examination of the case file, given the character of the internationally wrongful
       acts for which Uganda has been found responsible (illegal use of force, violation of
       sovereignty and territorial integrity, military intervention, occupation of Ituri, violations
       of international human rights law and of international humanitarian law, looting,
       plunder and exploitation of the DRC’s natural resources), the Court considers that those
       acts resulted in injury to the DRC and to persons on its territory” 32.

This recognition by the Court of injuries caused not only to the DRC but also to “persons on its
territory” should have found application in the reparations phase through the award of different types
of reparations depending on the nature and scope of the injury and on the addressees of the reparation.
This is not unfortunately the case. The Judgment seems to be stuck in a time warp as it reflects the
State-centred approach to reparation reminiscent of the law of diplomatic protection, while
acknowledging gross violations of human rights and humanitarian law the victims of which should
be entitled to compensation or other forms of reparation independently of their State. Recent
developments in human rights and international humanitarian law have led to a widespread

       32 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J.

Reports 2005, p. 257, para. 259.

                                                        - 12 -

recognition that, with regard to claims arising from an injury suffered by an individual or a
community, reparation should accrue to the injured individual or community 33.

       38. In the 2001 Articles on the Responsibility of States for Internationally Wrongful Acts, the
ILC stated in Article 33, paragraph 2, that the provisions of Part Two were “without prejudice to any
right, arising from the international responsibility of a State, which may accrue directly to any person
or entity other than a State” 34. In the commentary to that provision, the ILC referred to the Court’s
Judgment in LaGrand, and added that,

       “[w]hen an obligation of reparation exists towards a State, reparation does not
       necessarily accrue to that State’s benefit. For instance, a State’s responsibility for the
       breach of an obligation under a treaty concerning the protection of human rights may
       exist towards all the other parties to the treaty, but the individuals concerned should be
       regarded as the ultimate beneficiaries and in that sense as the holders of the relevant
       rights. Individual rights under international law may also arise outside the framework
       of human rights.” 35 (Emphasis added.)

Similarly, in the commentary to Article 28 (titled “Legal consequences of an internationally wrongful
act”), the ILC explained that a wrongful act may entail obligations towards other non-State actors:

               “Article 28 does not exclude the possibility that an internationally wrongful act
       may involve legal consequences in the relations between the State responsible for that
       act and persons or entities other than States. This follows from article 1, which covers
       all international obligations of the State and not only those owed to other States. Thus,
       State responsibility extends, for example, to human rights violations and other breaches
       of international law where the primary beneficiary of the obligation breached is not a
       State. . . . In other words, the provisions of Part Two are without prejudice to any right,
       arising from the international responsibility of a State, which may accrue directly to any
       person or entity other than a State, and article 33 makes this clear.” 36 (Emphasis added.)

       39. More recently, in the Draft Articles on Prevention and Punishment of Crimes against
Humanity, the ILC referred to the “right of a victim of a crime against humanity to obtain reparation”,
obliging States to have or enact necessary laws, regulations, procedures or mechanisms to enable
victims to pursue claims against and secure redress for the harm they have suffered from those who
are responsible for the harm, be it the State itself or some other actor 37. This is further reinforced by
resolution 60/147 of the United Nations General Assembly titled “Basic Principles and Guidelines
on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law” (hereinafter “Basic
Principles and Guidelines”) 38. Principle 11 expressly recognized that individual victims of gross
violations of international human rights law and serious violations of international humanitarian law

       33 See, for example, United Nations General Assembly, resolution 60/147 of 16 December 2005, “Basic Principles

and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights
Law and Serious Violations of International Humanitarian Law”, UN doc. A/RES/60/147, Annex.
       34 Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 94, Article 33, paragraph 2.

       35 Ibid., p. 95, commentary to Article 33, citing LaGrand (Germany v. United States of America), Judgment, I.C.J.

Reports 2001, p. 494, para. 77.
       36 Ibid., pp. 87-88, commentary to Article 28.

       37ILC, “Draft articles on Prevention and Punishment of Crimes Against Humanity”, UN doc. A/74/10,
15 May 2019, pp. 102 and 106-109, Article 12, paragraph 3, and commentary to Article 13, comments (16)-(24).
        38 See also United Nations, Commission on Human Rights, Study Concerning the Right to Restitution,

Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms: Final
report submitted by Special Rapporteur Mr. Theo van Boven, UN doc. E/CN.4/Sub.2/1993/8, 2 July 1993, paras. 131-135.

                                                          - 13 -

have a “right” to “[e]qual and effective access to justice” and “[a]dequate, effective and prompt
reparation for harm suffered”.

       40. At the oral hearings, the Agent and counsel for the DRC addressed the arrangements for a
fund established by the Government of the DRC in the expectation of compensation for the wrongful
acts committed by Uganda, and stated that “the DRC reiterates that it is willing to take due account
of any guidance that the Court may wish to provide on the organization and functioning of that
fund” 39. This request by the DRC offered the Court an opportunity to go beyond the timid dictum in
the Diallo Judgment 40 and to state clearly and unequivocally that, for heads of damage such as loss
of life, injuries to persons, rape, conscription of child soldiers, destruction of private property and
displacement of populations, the individuals and communities that directly suffered the injury are the
addressees and beneficiaries of the compensation awarded by the Court for such damages. Instead of
making such a clear statement, the Court has adopted again a Diallo-like formula in paragraph 408
of the Judgment, taking note of the statements made by the DRC during the oral proceedings. In
doing so, the Court has opted for the easy solution, by awarding global sums to the State, totally
ignoring the fact that the damage caused by Uganda’s wrongful conduct was, above all, to human
beings. This might have been due in part to the overly narrow approach adopted in the Judgment
with regard to reparations.

       41. Indeed, the one-size-fits-all approach to reparation, adopted in the form of “global sums”
with respect to three cumulative heads of damage, does not adequately do justice to the injuries
suffered by individuals and communities that had been well documented in the 2005 Judgment of
the Court. Nor does the fact that the State of the DRC is the sole addressee of the aggregated
compensation, awarded under those three “global sums”, ensure that those individuals and
communities will be adequately compensated. As the Court stated in the case concerning Avena and
other Mexican nationals,

        “[w]hat constitutes ‘reparation in an adequate form’ clearly varies depending upon the
        concrete circumstances surrounding each case and the precise nature and scope of the
        injury, since the question has to be examined from the viewpoint of what is the
        ‘reparation in an adequate form’ that corresponds to the injury” 41.

       42. The Judgment does not provide any explanation as to how these “global sums” were
arrived at, and what exact figures are to be assigned to their distinct components, except for the
estimate with regard to the loss of life. As a result, it is simply impossible to parse through the various
heads of loss (at least between the funds intended for the public purse and those intended for private
individuals). Consequently, it is not possible to identify, for example, how much money should be
assigned to the fund established by the DRC for the purposes of distributing the compensation
awarded by the Court to the actual victims or their beneficiaries, for which types of injury, for how
many victims, and for how much value. This could have helped the DRC itself to disburse fairly and
effectively, through the fund it has established, the compensation allocated to the individuals and
communities concerned.

        39 CR 2021/11, pp. 72-73, para. 20 (Mingashang) [translation by the Registry].

        40 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Compensation, Judgment,

I.C.J. Reports 2012 (I), p. 334, para. 57 (“[t]he Court recalls that the sum awarded to Guinea in the exercise of
diplomatic protection of Mr. Diallo is intended to provide reparation for the latter’s injury”).
        41 Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004 (I),

p. 59, para. 119, citing Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21.

                                                           - 14 -

       43. It is therefore my view that one of the inadequacies of the reparation awarded by the Court
in this case flows from the overly narrow approach to reparations adopted in the Judgment and the
lack of consideration of the communities, collectivities and individuals who have directly suffered
as a result of the wrongful acts of Uganda through loss of life, personal injuries, destruction of private
properties, conscription of child soldiers and the displacement of population. These individuals and
communities have not yet recovered from the impact of the violent conflict on their lives. Their
plight, therefore, deserved to be taken into account by adopting different forms of reparation that
would fit their different circumstances and by clearly indicating that they were the direct addressees
of these reparations. To this end, a wide range of forms of reparation, depending on the specific head
of alleged injury, was available to the Court and could have been used without necessarily altering
the interstate nature of the proceedings. They include individual and collective reparations,
compensation, rehabilitation and non-pecuniary satisfaction.

      44. The possibility of collective reparations, for example, has been envisaged in the
Inter-American System of Human Rights 42, the ILC in the Draft Articles on Crimes Against
Humanity 43, and the Rules of Procedure and Evidence of the International Criminal Court (“ICC”) 44.
Collective reparations may be most appropriate for the provision of institutionalized assistance, in
the form of vocational schools, hospitals, clinics and counselling services in their respective
communities, to individuals who suffered twenty or twenty-five years ago personal injuries, rape and
sexual violence, or conscription as child soldiers, as well as for the reconstruction of public buildings
such as schools, hospitals and places of worship.

       45. With regard to child soldiers, in particular, a set of principles and guidelines on children
associated with armed forces or armed groups adopted by UNICEF in 2007 (the “Paris Principles”) 45,
state that “[d]irect cash benefits to released or returning children are not an appropriate form of
assistance, as experience has repeatedly shown” 46. Instead, a better approach might be alternative
measures such as “[i]nclusive programming which supports children who have been recruited or used
as well as other vulnerable children” 47. This kind of “collective post-conflict reparations” may also
be found in the practice of the ICC Trust Fund for Victims with respect to Uganda and the DRC.

        42 Inter-American Court of Human Rights (IACtHR), Case of the Mayagna (Sumo) Awas Tingni Community v.

Nicaragua (Merits, Reparations, and Costs), Judgment of 31 August 2001, para. 167 (providing for works or services of
collective interest for the benefit of the Awas Tingni Community in the amount of US$50,000); see also IACtHR, Case of
the Plan de Sánchez Massacre v. Guatemala (Reparations), Judgment of 19 November 2004, paras. 93, 106-108, 117
and 125 (7) (providing for the free of charge medical treatment required by the victims, a specialized program of
psychological and psychiatric treatment, adequate housing to the surviving victims, and communal programmes for the
benefit of the entire community).
        43 ILC, “Draft articles on Prevention and Punishment of Crimes Against Humanity”, UN doc. A/CN.4/L.935,

15 May 2019, Art. 12, para. 3 (referring to “reparation for material and moral damages, on an individual or collective basis,
consisting, as appropriate, of . . . rehabilitation”; emphases added).
        44 ICC, Rules of Procedure and Evidence, Official Records of the Assembly of States Parties to the Rome Statute of

the International Criminal Court, First session, New York, 3-10 September 2002, Rule 97, para. 1: “Taking into account
the scope and extent of any damage, loss or injury, the Court may award reparations on an individualized basis or, where
it deems it appropriate, on a collective basis or both.” (Emphasis added.) For a summary of the practice of the ICC, see
ICC, Trial Chamber I, The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, Corrected version of the “Decision
Setting the Size of the Reparations Award for which Thomas Lubanga Dyilo is Liable” of 21 December 2017 (public
redacted version), paras. 33, 36, 192-194, 246-248, 288, 294-296; Trial Chamber VIII, The Prosecutor v. Ahmad Al Faqi
Al Mahdi, ICC-01/12-01/15, Reparations Order of 17 August 2017, operative clause, subpara. 1.
        45 UNICEF, “The Paris Principles. Principles and Guidelines on Children Associated with Armed Forces or Armed

Groups”, February 2007, available at http://www.refworld.org/docid/465198442.html (accessed 28 January 2021).
        46 Ibid., Principle 7.35.

        47 Ibid., Principle 7.30.

                                                 - 15 -

       46. Thus, despite the inter-State nature of the proceedings, and in light of recent developments
with regard to remedies for gross violations of human rights and international humanitarian law, it
was possible to envisage different forms of reparation, that take into account the sensitivities involved
in these categories of injury, particularly twenty or twenty-five years after the events, and the need
for a fair and effective redress of the harm caused. This approach would have strengthened the
performance of the obligation to make reparation in the interest of the beneficiaries of the obligation
breached and would effectively enable such reparation to accrue to the injured individuals and
communities. In the present case, it would also have given the DRC authorities the guidance that
they had formally requested the Court to provide them with on the functioning of the fund they have
established.

                                                          (Signed) Abdulqawi Ahmed YUSUF.

                                             ___________


ESSAIS NUCLÉAIRES (DÉCL. BARWICK) 110

existant en la matière et risque de porter un tort irréparable aux droits
des parties. C’est une telle situation qui justifie l'indication de mesures
conservatoires.

Ainsi, si la Cour a indiqué des mesures conservatoires en l’espèce, elle
la fait sans préjudice des problèmes de substance, juridictionnels ou
autres, qui ne peuvent être actuellement préjugés et devront être appro-
fondis au cours de la phase suivante.

Sir Garfield BARWICK, juge ad hoc, fait la déclaration suivante:

Jai voté en faveur de l’indication de mesures conservatoires et de l’or-
donnance de la Cour sur la suite de la procédure, convaincu par les dis-
cussions très approfondies auxquelles la Cour a procédé ces dernières
semaines et par mes propres recherches que l’Acte général de 1928 et la
déclaration du Gouvernement français acceptant, avec réserve, la juridic-
tion obligatoire de la Cour constituent l’un et l’autre, prima facie, une
base possible de compétence de la Cour pour connaître des demandes
formulées par l’Australie dans sa requête du 9 mai 1973 et se prononcer à
leur sujet. En outre, selon moi, l'échange de notes diplomatiques de 1973
entre le Gouvernement australien et le Gouvernement français démontre,
au moins de prime abord, qu’il existe un différend entre ces gouverne-
ments sur des questions de droit international affectant leurs droits
respectifs.

Enfin, sur la base de la documentation soumise à la Cour, et en particu-
lier des rapports du Comité scientifique des Nations Unies pour l’étude
des effets des rayonnements ionisants, il est raisonnable de conclure
que de nouveaux dépôts de particules radioactives dans l’environnement
territorial de l’Australie causeraient probablement des dommages pour
lesquels il ne saurait y avoir de réparation adéquate.

Ces conclusions suffisent à justifier l'indication de mesures conserva-
toires.

J'approuve la forme donnée aux mesures conservatoires, étant entendu
selon moi que les actes prohibés sont ceux des gouvernements et que les
mesures sont indiquées uniquement en relation avec la demande austra-
lienne concernant l’inviolabilité de son territoire.

MM. FORSTER, GROS, PETRÉN et IGNACIO-PINTO, juges, joignent à
l’ordonnance les exposés de leur opinion dissidente.

(Paraphé) F.A.
(Paraphé) S.A.

15


517 LAGRAND (JUDGMENT)

of the Court and the others transmitted to the Government of the Fed-
eral Republic of Germany and the Government of the United States of
America, respectively.

(Signed) Gilbert GUILLAUME,
President.

(Signed) Philippe COUVREUR,
Registrar.

President GUILLAUME makes the following declaration:

Subparagraph (7) of the operative part of the Court’s Judgment envis-
ages a situation where, despite the commitment by the United States
noted by the Court in subparagraph (6), a severe penalty is imposed upon
a German national without his or her rights under Article 36, para-
graph | (5), of the Vienna Convention on Consular Relations having
been respected. The Court states that, in such a case, “the United States,
by means of its own choosing, shall allow the review and reconsideration
of the conviction and sentence by taking account of the violation of the
rights set forth in that Convention”.

This subparagraph represents a response to certain submissions by
Germany and hence rules only on the obligations of the United States in
cases of severe penalties imposed upon German nationals.

Thus, subparagraph (7) does not address the position of nationals of
other countries or that of individuals sentenced to penalties that are not
of a severe nature. However, in order to avoid any ambiguity, it should
be made clear that there can be no question of applying an a contrario
interpretation to this paragraph.

(Signed) Gilbert GUILLAUME.

Vice-President SHI appends a separate opinion to the Judgment of the
Court; Judge ODA appends a dissenting opinion to the Judgment of the
Court; Judges KOROMA and PARRA-ARANGUREN append separate
opinions to the Judgment of the Court; Judge BUERGENTHAL appends a
dissenting opinion to the Judgment of the Court.

(Initialled) G.G.
(Initialled) Ph.C.

55