                    347

                                             SEPARATE OPINION
                                        OF JUDGE CANÇADO TRINDADE

                                                   table of contents

                                                                                Paragraphs

                         I. Prolegomena1-3
                         II. The Subject of the Rights Breached and the Subject of
                             the Right to Reparations                                     4-13
                     III. Neminem Laedere : Insights on Reparations from the
                          “Founding Fathers” of the Law of Nations (Droit des

                          Gens)14-21
                     IV. The Dawn of State Responsibility and the Rationale of
                         Duty of Reparation                                              22-31
                         V. An Indissoluble Whole : Breach of International Law and
                            Compliance with the Duty of Reparation for Damages           32-40

                     VI. The Centrality of the Victims in Human Rights Protec-
                         tion, and Its Implications for Reparations                      41-59

                            1. The central position of the victims                       41-44
                            2. The implications for reparations                          45-49
                            3. The distinct forms of reparation                          50-59
                    VII. The Contribution of the Case Law of the International
                         Human Rights Tribunals (IACtHR and ECHR)                        60-73

                            1. The relevance of their case law on reparations due to the
                               victims60-64
                            2. The contribution of the Inter-American Court of Human
                               Rights65-70
                            3. The contribution of the European Court of Human Rights   71-73
                    VIII. Neminem Laedere and Reparation for Moral Damage to
                          Individuals74-80
                     IX. The Relevance of the Rehabilitation of Victims                  81-85
                         X. Epilogue : Concluding Reflections                           86-101

                                                             *

                    27

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                                                 I. Prolegomena

                       1. I have voted in favour of the adoption of the present Judgment in
                    the case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic
                    Republic of the Congo), whereby the International Court of Justice (ICJ)
                    has ordered reparations for the damages suffered by Mr. A. S. Diallo
                    (established in the previous Judgment on the merits, of 30 November
                    2010), as an individual, under the UN Covenant on Civil and Political
                    Rights (Art. 13), and under the African Charter on Human and Peoples’
                    Rights (Article 12 (4)), as well as under the Vienna Convention on
                    Consular Relations (his right to information on consular assistance,

                    under Article 36 (1) (b)). In the present Judgment, in determining the
                    reparations due ultimately to Mr. A. S. Diallo, as a result of the damages
                    he suffered (para. 57), the ICJ has rightly taken into account the experi-
                    ence of other contemporary international tribunals in the matter of repa-
                    rations for damages.

                       2. Amongst those tribunals, of particular importance is the case law of
                    the international tribunals of human rights (in particular that of the Inter-
                    American and the European Courts of Human Rights), as I shall seek to
                    demonstrate in the present separate opinion. Although I have agreed with
                    the Court’s majority as to the determination of reparations in the present
                    Judgment, there are some points, not fully reflected in the reasoning of
                    the Court, that I feel obliged to dwell upon in the present separate opin-
                    ion, so as to clarify the matter dealt with by the Court, and the founda-
                    tions of my personal position thereon. One of the key points concerns the
                    position of individuals as subjects of contemporary international law,
                    and, accordingly, as titulaires of the right to reparation for the damages
                    they have suffered.

                         3. My reflections, developed in the present separate opinion, pertain to
                      other points as well, at conceptual and epistemological levels, namely :
                      (a) the subject of the rights breached and the subject of the right to repa-
                      rations ; (b) neminem laedere : insights on reparations from the “founding
                    fathers” of the law of nations (droit des gens) ; (c) the dawn of State
                    responsibility and the rationale of duty of reparations ; (d) an indissolu-
                      ble whole : breach of international law and compliance with the duty of
                      reparation for damages ; (e) the centrality of the victims in human rights
                      protection, and its implications for reparations, and the distinct forms of
                      these latter ; (f) assessment of the contribution of the case law of the
                      international human rights tribunals (in particular that of the Inter‑
                      American and the European Courts of Human Rights) ; (g) neminem
                    laedere and reparation for moral damage to individuals ; and (h) the
                     relevance of the rehabilitation of victims. The way will then be paved, in
                      the epilogue, for the presentation of my concluding reflections on the
                      matter.

                    28

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                    349 	         ahmadou sadio diallo (sep. op. cançado trindade)

                                       II. The Subject of the Rights Breached
                                     and the Subject of the Right to Reparations

                       4. In its Judgment on the merits (of 30 November 2010) in the present
                    case, the Court established the violations of the rights of Mr. Diallo “as
                    an individual” (I.C.J. Reports 2010 (II), p. 655, para. 34), namely, his
                    rights under Article 13 of the UN Covenant on Civil and Political Rights,
                    and under Article 12 (4) of the African Charter on Human and Peoples’
                    Rights, in addition to his right to information on consular assistance
                    under Article 36 (1) (b) of the Vienna Convention on Consular Rela-
                    tions 1. This was the first time in its history that the Court established
                    violations of human rights, under two human rights treaties, in addition
                    to the relevant provision of the 1963 Vienna Convention.

                       5. The subject of the rights violated in the cas d’espèce was a human
                    being, Mr. A. S. Diallo, not a State. Likewise, the subject of the corre-
                    sponding right to reparation is a human being, Mr. A. S. Diallo, not a
                    State. He is the titulaire of such right to reparation, and the beneficiary of
                    the reparations ordered by the Court in the present Judgment. In the pre-
                    vious Judgment on the merits (of 30 November 2010) the Court referred
                    to the reparation — in the form of compensation — “due to Guinea for
                    the injury suffered by Mr. Diallo” (ibid., p. 691, para. 161). The Court
                    further referred to the compensation owed by the Democratic Republic of
                    the Congo to Guinea “for the injury flowing from the wrongful deten-
                    tions and expulsion of Mr. Diallo in 1995‑1996, including the resulting
                    loss of his personal belongings” (ibid., p. 691, para. 163).
                       6. In the subsequent proceedings as to reparations (written phase
                    only), Guinea referred repeatedly, in its Memorial of 6 December 2011, to
                    the damages 2 or injuries 3 or harms 4 suffered by Mr. Diallo, to the dis-
                    crimination 5 and arbitrariness 6 inflicted against him. It also referred to
                    the Democratic Republic of the Congo’s breaches of human rights obli-
                    gations 7. For its part, in its Counter‑Memorial of 21 February 2012, the
                    Democratic Republic of the Congo (DRC) acknowledged the injuries 8 or
                    damages 9 suffered by Mr. Diallo. The two contending Parties thus agreed
                    that reparations were here due to the victim, for the human rights viola-
                    tions he suffered. The titulaire of the rights breached, and the beneficiary
                    of the reparations due, was the individual concerned, Mr. A. S. Diallo.

                         1 Merits, Judgment, I.C.J. Reports 2010 (II), resolutory points 2, 3 and 4 of the dispositif.
                         2 Memorial of the Republic of Guinea, paras. 16 and 48, and cf. para. 63.
                         3 Ibid., paras. 35 and 47, and cf. para. 62.
                         4 Ibid., para. 24.
                         5 Ibid., para. 43.
                         6 Ibid., para. 61.
                         7 Ibid., para. 21.
                         8 Counter-Memorial of the DRC, paras. 2, 4 and 1.05.
                         9 Ibid., paras. 1.05 and 1.44.

                    29

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                    350 	         ahmadou sadio diallo (sep. op. cançado trindade)

                       7. Accordingly, in its Memorial Guinea invoked a recent case from the
                    inter‑American system of human rights, concerning Haiti 10. And, for its
                    part, the Democratic Republic of the Congo, in its Counter‑Memorial,
                    invoked a series of decisions from the European and the Inter‑American
                    Courts of Human Rights and surveyed them 11, stressing their importance
                    for the determination of “compensation for non‑pecuniary damage suf-
                    fered by individuals” 12. The Democratic Republic of the Congo made a
                    point of stressing that it deemed it fit to draw on the case law of the
                    Inter‑American and European Courts of Human Rights as the corre-
                    sponding two regional systems of human rights protection

                              “are the oldest and best developed in the world and which have abun-
                              dant practice in fixing compensation to make good the non‑pecuniary
                              damage resulting from wrongful and prolonged detentions of physical
                              persons by certain States. In the light of the jurisprudence of these
                              two international courts, the Respondent will submit its own proposal
                              to the Court regarding the amount of compensation which it consid-
                              ers reasonable and proportionate in relation to the non‑pecuniary
                              damage suffered by Mr. Diallo.” 13
                       8. In its present Judgment on reparations the Court has recalled its
                    finding in its previous Judgment on the merits (I.C.J. Reports 2010 (II),
                    p. 691, para. 163) in the cas d’espèce, whereby the amount of compensa-
                    tion due to Mr. A. S. Diallo is based on the damage suffered resulting
                    from his “wrongful detentions and expulsion” in 1995‑1996 and the con-
                    sequent “loss of his personal belongings” (Judgment, para. 11). The whole
                    reasoning of the Court is developed on the basis of the damages suffered
                    by Mr. A. S. Diallo, as established by it in its earlier Judgment on the
                    merits (of 30 November 2010). In the present Judgment, the Court reiter-
                    ates its position that the damages were done to Mr. A. S. Diallo, the
                    individual victim (ibid., para. 57), not to his State of nationality or origin.

                       9. The fact that the mechanism for dispute‑settlement by the ICJ is, as
                    disclosed by its interna corporis, an inter‑State one, does not mean that
                    the Court’s findings, and its corresponding reasoning, ought to be invari-
                    ably limited to a strict inter-State approach. Not at all ; in their contents,
                    cases vary considerably, and, throughout the last decades, some of them
                    have directly concerned the condition of individuals. I have had the occa-
                    sion to point this out in my separate opinion in the Court’s recent Advi-
                    sory Opinion on Judgment No. 2867 of the International Labour
                    Organization Administrative Tribunal upon a Complaint Filed against the
                    International Fund for Agricultural Development (I.C.J. Reports 2012 (I),

                         10 Memorial of the Republic of Guinea, para. 30.
                         11 Counter-Memorial of the DRC, paras. 1.07-1.43.
                         12 Ibid., para. 1.47, and cf. para. 1.41.
                         13 Ibid., para. 1.07.

                    30

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                    351 	    ahmadou sadio diallo (sep. op. cançado trindade)

                    pp. 79-80, paras. 78-79), and I do so again in the present separate opinion
                    in the Diallo case (Judgment on Reparations).

                       10. Notorious examples in that sense are provided, e.g., by the Notte‑
                    bohm case (Liechtenstein v. Guatemala) (1955, on double nationality) ; the
                    case concerning the Application of the Convention of 1902 Governing the
                    Guardianship of Infants (Netherlands v. Sweden) (1958) ; the case of the
                    Trial of Pakistani Prisoners of War (Pakistan v. India) (1973) ; the “Hos‑
                    tages” (United States Diplomatic and Consular Staff in Tehran (United
                    States v. Iran) case (1980)) ; the East‑Timor (Portugal v. Australia) case
                    (1995) ; the case of the Application of the Convention on the Prevention and
                    Punishment of the Crime of Genocide (Bosnia‑Herzegovina v. Yugoslavia)
                    (1996) ; the case of Land and Maritime Boundary between Cameroon and
                    Nigeria (Cameroon v. Nigeria) (1996) ; the case of Armed Activities on the
                    Territory of the Congo (Democratic Republic of the Congo v. Uganda)
                    (2000) ; the three successive cases concerning consular assistance — namely,
                    the cases “Breard” (Vienna Convention on Consular Relations (Paraguay v.
                    United States) (1998)) ; LaGrand (Germany v. United States of America)
                    (2001) ; and Avena and Other Mexican Nationals (Mexico v. United States
                    of America) (2004) ; the case on Questions relating to the Obligation to
                    Prosecute or Extradite (Belgium v. Senegal) (Order of 2009) ; the case of
                    Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of
                    the Congo) (2010) ; the case of the Application of the International Conven‑
                    tion on the Elimination of All Forms of Racial Discrimination (Georgia v.
                    Russian Federation) (2011) ; the case of the Temple of Preah Vihear (Cam‑
                    bodia v. Thailand) (Order of 2011) ; and the case of the Jurisdictional
                    Immunities of the State (Germany v. Italy) (2010-2012).
                       11. The insufficiency, if not artificiality, of the exclusively inter‑State
                    outlook of the procedures before the ICJ has become manifest, in the
                    light of the very nature of some of the contentious cases submitted to it.
                    The same has been disclosed by the exercise of its advisory function, as
                    illustrated by its last two Advisory Opinions, on the Accordance with
                    International Law of the Unilateral Declaration of Independence in Respect
                    of Kosovo (2010), and on Judgment No. 2867 of the International Labour
                    Organization Administrative Tribunal upon a Complaint Filed against the
                    International Fund for Agricultural Development (2012). Despite the limi-
                    tations of the inter‑State conception of its mechanism of operation, the
                    Court can at least disclose its preparedness to reason in the light of the
                    progressive development of international law, thus contributing to it,
                    beyond the outdated inter‑State outlook.
                       12. In effect, in the present Diallo case, the Court’s Judgments on the
                    merits (2010) and now on reparations clearly show that its findings and
                    reasoning have rightly gone well beyond the straight‑jacket of the strict
                    inter-State dimension. There are circumstances wherein the Court is
                    bound to do so, in the faithful exercise of its judicial function, in cases
                    concerning distinct aspects of the condition of individuals. After all,

                    31

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                    352 	      ahmadou sadio diallo (sep. op. cançado trindade)

                    breaches of international law are perpetrated not only to the detriment of
                    States, but also to the detriment of human beings, subjects of rights —
                    and bearers of obligations — emanating directly from international law
                    itself. States have lost the monopoly of international legal personality a
                    long time ago.

                       13. Individuals — like States and international organizations — are
                    likewise subjects of international law. A breach of their rights entails the
                    obligation to provide reparations to them. This is precisely the case of
                    Mr. A. S. Diallo ; the present case bears eloquent witness of that, and of
                    the limits imposed by contemporary international law upon State volun-
                    tarism. States cannot dispose of human beings the way they want, irre-
                    spective of their rights acknowledged in the corpus juris of the international
                    law of human rights ; if they breach their rights enshrined therein, they
                    are to bear the consequences thereof, in particular the ineluctable obliga-
                    tion to provide reparation to the individual victims.

                                 III. Neminem Laedere : Insights on Reparations
                                           from the “Founding Fathers”
                                     of the Law of Nations (Droit des Gens)

                      14. This duty of reparation has deep historical roots, going back to the
                    origins of the law of nations : such duty was in fact in the minds of the
                    “founding fathers” of our discipline, as disclosed by their classical writ-
                    ings which have survived the onslaught of time. The present Diallo case,
                    unique in the history of this Court — as I pointed out in my separate
                    opinion in its earlier Judgment on the merits (of 30 November 2010) —
                    seems to provide an invitation to embark on the rescue of the earlier
                    thinking on such duty of reparation. In effect, in his celebrated Second
                    Relectio de Indis (1538‑1539), Francisco de Vitoria made a proposition to
                    the effect that “the enemy who has done the wrong is bound to give all
                    this redress” 14; there is a duty, even amidst armed hostilities, to make
                    restitution (of losses) and to provide reparation for “all damages” 15.

                      15. One was here in the realm of jus gentium, the law of nations, of all
                    peoples, wherein the right to redress was reckoned 16. The rules of that
                    emerging law of nations were to be “just and fitting for all persons” ; the

                       14 Op. cit. infra note 16, Appendix B : Francisco de Vitoria, Second Relectio : On the

                    Indians [De Indis] [1538‑1539], Oxford/London, Clarendon Press/H. Milford, 1934 [reed.],
                    p. LV.
                       15 Ibid. ; and cf. Francisco de Vitoria, “Relección Segunda : De los Indios” [1538‑1539],

                    Obras de Francisco de Vitoria — Relecciones Teológicas (ed. T. Urdanoz), Madrid, BAC,
                    1955, p. 827.
                       16 J. Brown Scott, The Spanish Origin of International Law — Francisco de Vitoria and

                    His Law of Nations, Oxford/London, Clarendon Press/H. Milford, 1934, pp. 140, 150, 163
                    and 165.

                    32

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                    353 	       ahmadou sadio diallo (sep. op. cançado trindade)

                    damages caused by wrongful acts were to be assessed, in order to provide
                    redress to those who suffered them, and restitution of the losses 17. In
                    de Vitoria’s understanding, redress of wrongs was to take place in dis-
                    putes between States, or between groups, or between individuals, i.e., in
                    all sorts of disputes. He viewed the international community of (emerg-
                    ing) States as “co-extensive with humanity” ; such redress corresponded,
                    in his conception, to “an international need” 18.
                       16. Hugo Grotius, for his part, dedicated a whole chapter of his De
                    Jure Belli ac Pacis (1625) to the obligation of reparation for damages
                    (Book II, Chap. XVII) 19. In his outlook, the “injured party” was not nec-
                    essarily a State ; he referred to distinct kinds of damage caused by breaches
                    of “rights resulting to us”, or from “losses suffered by negligence” ; such
                    damages or losses create an obligation of reparation 20. In his conception
                    of the jus gentium, the (emerging) law of nations, H. Grotius focused on
                    the reasonable, on the dictates of the right reason, bearing in mind also
                    the common needs and, ultimately, the universal human society.

                      17. Samuel Pufendorf, likewise, in his Elementorum Jurisprudentiae
                    Universalis — Libri Duo (1672), asserted that whoever has caused damage
                    by a wrongful act is bound “to make good” and “to restore as much as
                    he contributed to the damage” 21. In this duty of restitution, each one
                    was bound to provide reparation for the damage he caused, “to restore
                    the whole”, on the basis of natural law 22. In his work On the Duty of
                    Man and Citizen (1673), Pufendorf pondered that one who has suffered
                    loss or damage cannot live in peace with the wrongdoer, without com
                    pensation ; hence the need of restitution. Natural law, attentive to the
                    sociable (sociabilis), condemned vengeance 23. “Natural equity” set forth
                    the “obligation to make restitution” for loss or harm done with malice or
                    negligence 24.

                         17Op. cit. supra note 16, pp. 172 and 210‑211.
                         18Ibid., pp. 282‑283 ; and cf. also, Association Internationale Vitoria-Suarez, Vitoria
                    et Suarez : contribution des théologiens au droit international moderne, Paris, Pedone, 1939,
                    pp. 73‑74, and cf. pp. 169‑170.
                       19 H. Grotius, De Jure Belli Ac Pacis [1625], Liber secundus, caput XVII, The Hague,

                    M. Nijhoff, 1948, pp. 79‑82.
                       20 Ibid., pp. 79‑80, paras. I and VIII‑IX ; and cf. H. Grotius, Le droit de la guerre et de la

                    paix [1625], Paris, PUF, 2005 [reed.], pp. 415‑416 and 418, paras. I and VIII‑IX.
                       21 S. Pufendorf, Elementorum Jurisprudentiae Universalis — Libri Duo [1672], Oxford/

                    London, Clarendon Press/H. Milford, 1931 [reed.], pp. 264‑265.
                       22 Ibid., p. 266.
                       23 S. Pufendorf, On the Duty of Man and Citizen According to Natural Law [1673],

                    Cambridge University Press, 2003 [5th printing], Book I, Chap. 6, pp. 56‑57 and 60.
                       24 Ibid., pp. 58‑59 ; and cf. S. Pufendorf, Os Deveres do Homem e do Cidadão de Acordo

                    com as Leis do Direito Natural [1673], Rio de Janeiro, Liberty Fund/Topbooks, 2007
                    [reed.], Book I, Chap. 6, pp. 152‑153 and 156.

                    33

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                       18. For his part, Christian Wolff held, in his Jus Gentium Methodo
                    Scientifica Pertractatum (1764), that whoever caused a loss or wrong
                     “to a citizen or subject of another State” is “bound to repair it” ; the same
                     applies in the relations among nations, wherein “the loss caused should
                     be repaired” 25. Any international wrong — he added — entails the duty
                    of reparation, or of restoration of the loss 26. In his Principes du droit de la
                    nature et des gens (1758), Wolff situated the duty to provide reparation
                    for the damage caused in the realm of natural law thinking 27.

                       19. To the writings, on the subject-matter at issue, of Vitoria, Gro-
                    tius, Pufendorf and Wolff, others could be added, such as the ponder-
                    ation of Alberico Gentili (De Jure Belli, 1598) and of Francisco Suárez
                    (De Legibus ac Deo Legislatore, 1612), as to the need of a legal system
                    that would regulate the relations of the members of the universal societas
                    gentium, and the approach pursued by Cornelius van Bynkershoek (De
                    Foro Legatorum, 1721 ; Questiones Juris Publici — Libri Duo, 1737), in
                    keeping on upholding a multiplicity of subjects of jus gentium (nations,
                    peoples, persons). By and large, the attention to the common condition of
                    humankind was proper to natural law, which, with the recta ratio, pro-
                    vided the basis for the regulation of human relations with the due respect
                    for each other’s rights 28. The duty of reparation responded to an interna‑
                    tional need, in conformity with the recta ratio — whether the beneficiaries
                    were States (emerging in their days), peoples, or individuals.

                       20. Subsequent to the works of Pufendorf and Wolff (supra), interna-
                    tional legal thinking embarked on the reductionist path of the jus inter
                    gentes pursuant to a much stricter inter‑State outlook. The juxtaposition
                    of absolute State sovereignties led to the exclusion from that legal order
                    of the individuals as subjects of rights (titulaires de droits). At interna-
                    tional level, the States assumed the monopoly of the condition of subjects
                    of rights ; the individuals, for their protection, were left entirely at the
                    mercy of the discretionary intermediation of their nation-States. The
                    international legal order thus erected — which the excesses of legal posi-
                    tivism attempted in vain to justify — excluded therefrom precisely the
                    ultimate addressee of the juridical norms : the human being.
                       25 C. Wolff, Jus Gentium Methodo Scientifica Pertractatum [1764], Oxford/London,

                    Clarendon Press/H. Milford, 1934 [reed.], p. 162, paras. 318‑319.
                       26 Ibid., pp. 408 and 425, paras. 789 and 821.
                       27 C. Wolff, Principes du droit de la nature et des gens [1758], Vol. III, Caen,

                    Presses Universitaires de Caen, 2011 [reed.], Book IX, Chap. VI, pp. 293‑294 and 296,
                    paras. II, IV and XIII.
                       28 The right reason lies at the basis of the law of nations, being the spirit of justice

                    in the line of natural law thinking ; this trend of international legal thinking has always
                    much valued the realization of justice, pursuant to a “superior value of justice”. P. Foriers,
                    L’organisation de la paix chez Grotius et l’école de droit naturel [1961], Paris, J. Vrin, 1987,
                    pp. 293, 333, 373 and 375 [reed. of study originally published in : Recueil de la Société
                    Jean Bodin pour l’histoire comparative des institutions, Vol. 15, Part II, Brussels, Libr. Ency-
                    clopédique, 1961].

                    34

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                    355 	      ahmadou sadio diallo (sep. op. cançado trindade)

                       21. The teachings of the “founding fathers” of the law of nations, how-
                    ever, never faded away. Successive grave violations of the rights of the
                    human person (some on a massive scale) awakened human conscience to
                    the need to restore to the human being the central position from where he
                    had been unduly displaced by the exclusive inter‑State thinking which
                    prevailed in the nineteenth century. The reconstruction, on human foun-
                    dations, as from the mid‑twentieth century onwards, took, as conceptual
                    basis, the canons of the human being as subject of rights (titulaire de
                    droits), of the collective guarantee of the realization of these latter, and of
                    the objective character of the obligations of protection, and of the realiza-
                    tion of superior common values. The individual came again to be per-
                    ceived as subject of the right to reparation for damages suffered.

                                      IV. The Dawn of State Responsibility
                                    and the Rationale of Duty of Reparation

                       22. In effect, as from the late nineteenth century, some jurists had the
                    intuition to dwell upon reparation for international wrongs, even before
                    the advent of the era of (contemporary) international tribunals. They
                    wrote within distinct theoretical frameworks. One of the earlier jurists to
                    do so was Dionisio Anzilotti. On the one hand, his views on the legal
                    standing of individuals (acknowledged by him only in positive domestic
                    law) 29 became promptly and wholly unacceptable, even in the emerging
                    legal doctrine of his times ; this was largely due to the gradual establish-
                    ment of the direct contacts between individuals and the international
                    legal order (as from, e.g., the pioneering case law of the Central American
                    Court of Justice, 1907‑1917, followed by the Advisory Opinion of 1928 of
                    the Permanent Court of International Justice [PCIJ] on the Jurisdiction of
                    the Courts of Danzig, 1928) and the gradual recognition of the access of
                    individuals to international justice 30.

                       23. On the other hand, another concern expressed by Anzilotti, as to
                    the duty of reparation of damages resulting from breaches of interna-
                    tional law so as to preserve the integrity of the international legal order,
                    seems to retain its contemporaneity, over a century later. In fact, already
                    in 1902, in his book Teoria Generale della Responsabilità dello Stato nel
                    Diritto Internazionale, he pondered, in his conceptualization, that a viola‑
                       29 D. Anzilotti, “La responsabilité internationale des Etats à raison des dommages

                    soufferts par des étrangers”, op. cit. infra note 34, pp. 5‑6 and 8.
                       30 A. A. Cançado Trindade, El Acceso Directo del Individuo a los Tribunales Inter‑

                    nacionales de Derechos Humanos, Bilbao, Universidad de Deusto, 2001, pp. 9‑104 ;
                    A. A. Cançado Trindade, El Derecho de Acceso a la Justicia en Su Amplia Dimensión,
                    Santiago de Chile, CECOH/Librotecnia, 2008, pp. 61‑407 ; A. A. Cançado Trindade, The
                    Access of Individuals to International Justice, Oxford University Press, 2011, pp. 1‑236.

                    35

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                    356 	      ahmadou sadio diallo (sep. op. cançado trindade)

                    tion of international law (ensuing from an anti‑juridical fact, a factum
                    contra jus) generates responsibility 31; hence the need to cease that viola-
                    tion (in its effects) and to provide reparation for the damage 32. And Anzi-
                    lotti added that “il neminem laedere è norma giuridica fondamentale nei
                    rapporti degli Stati come in quelli degl’individui [the neminem laedere is a
                    fundamental juridical norm in the relations of States as in those of
                    individuals]” 33.

                       24. Four years later, Anzilotti stressed that any “act contrary to inter-
                    national law” engages international responsibility 34. To him, an “interna-
                    tional illicit act” is an act which is “in opposition with the objective
                    international law” ; thus, “le caractère illicite d’un acte dérive toujours de
                    son opposition avec le droit objectif” 35. To him, the damage is always
                    encompassed implicitly in the “anti‑juridical character of the act” 36. And
                    he added, with insight, that

                         “any act committed by a subject contrary to the rule [of law] entails
                         an obligation to restore, in one form or another, the juridical posi-
                         tion which that subject has disturbed.
                            [A] violation of international juridical standards by a State bound
                         by those standards thus gives rise to a duty to make reparation,
                         which generally consists in the restoration of the juridical position
                         that has been disturbed.” 37
                       25. In the following years, it became generally accepted that the duty
                    of reparation was one of general or customary international law. Another
                    international law theorist, Hans Kelsen, endeavoured in vain to challenge
                    that. In 1932, dwelling upon reparation, he built his conceptualization
                    within the straight‑jacket of the exclusive inter‑State dimension. He took
                    an isolated position (already in those days) to the effect that the duty of
                    reparation (compliance with which would in his view avoid recourse to
                    force and retaliation or reprisals) would necessarily require a prior agree‑
                    ment between the States concerned 38. Kelsen overlooked the general
                    acknowledgement, discernible already in his times, that that duty was one
                    of general or customary international law, and could not be entirely sub-

                        31 D. Anzilotti, Teoria Generale della Responsabilità dello Stato nel Diritto Internazio‑

                    nale, Part I, Florence, F. Lumachi Libr.‑Ed., 1902, pp. 75, 78 and 102‑103.
                        32 Ibid., pp. 95‑97 and 100‑101.
                        33 Ibid., p. 99.
                        34 He used indistinctly the terms “acte” and “fait de l’Etat” ; cf. D. Anzilotti, “La

                    responsabilité internationale des Etats à raison des dommages soufferts par des étrangers”,
                    13 Revue générale de droit international public (1906), pp. 292 and 296.
                        35 Ibid., p. 14.
                        36 Ibid., p. 13.
                        37 Ibid. [Translation by the Registry.]
                        38 H. Kelsen, “Unrecht und Unrechtsfolge im Völkerrecht”, 12 Zeitschrift für öffent‑

                    liches Recht (1932), pp. 481‑608.

                    36

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                    sumed under the will of individual States tout court. Opinio juris commu‑
                    nis stood above the will of each State.

                       26. Yet, just as it happened with the theory of Anzilotti, in that of
                    Kelsen there is a concern which seems to have subsisted to date, retaining
                    its contemporaneity : reparation cannot “efface” the breach of interna-
                    tional law already committed, but it can rather avoid the negative conse-
                    quences of the wrongful act (i.e., recourse to force and reprisals on
                    the part of the affected State). In Kelsen’s own words, in dwelling upon
                    reparation,

                                 “Ihr Sinn liegt nicht darin, dass durch sie — wie ihr Name sagt —
                              ein begangenes Unrecht wieder ‘gut’ gemacht wird, denn dies ist
                              unmöglich. Der einmal gesetzte Unrechtstatbestand kann nicht aus
                              der Welt geschafft werden. Sondern ihr Sinn liegt darin, dass durch
                              sie kraft Rechtens der Eintritt der Unrechtsfolge ausgeschaltet wird.”
                              [Its significance does not lie with the fact that through such repara-
                              tion — as its name implies — a wrong that has already happened will
                              be repaired, as this is impossible. The wrongful behaviour cannot be
                              made to disappear from the world. Its significance lies with the fact
                              that through it, pursuant to a rule, the onset of the consequences of
                              the wrong is made impossible.] 39
                       27. Reparation, in Kelsen’s outlook, would thus contribute not only to
                    justice, but also to peace (a topic which was, later on, towards the end of
                    the Second World War, to attract his attention 40). In addition, he admit-
                    ted that reparation (for material and immaterial damage) might take dis-
                    tinct forms 41. On the obligation of reparation, the celebrated dictum of
                    the PCIJ in the Chorzów Factory case (Judgment of 26 July 1927) did not
                    escape his attention 42. Without abandoning his inter‑State approach, in
                    his Hague Academy lectures of 1953 he conceded, as to the obligation of
                    reparation, that “an international court must confine itself to finding that
                    an international obligation has been breached and to ordering reparation
                    for the injury caused” 43.

                      28. Despite the constraints of the traditional inter‑State outlook, the
                    rationale of reparation began to attract growing attention, and its con-

                         39Op. cit. supra note 38, p. 560.
                         40Cf. H. Kelsen, Peace through Law, Chapel Hill, University of North Caro-
                    lina Press, 1944, pp. 71‑124 ; and cf. H. Kelsen, A Paz pelo Direito [1944], São Paulo,
                    Ed. Martins Fontes, 2011 [reed.], pp. 65‑114.
                       41 Cf. op. cit. supra note 38, pp. 555‑560.
                       42 Cf. ibid., p. 550.
                       43 H. Kelsen, “Théorie du droit international public”, Recueil des cours de l’Académie de

                    droit international de La Haye, Vol. 84, 1953, p. 96, and cf. p. 30. [Translation by the Registry.]

                    37

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                    358 	       ahmadou sadio diallo (sep. op. cançado trindade)

                    ceptual framework was gradually to take place. The PCIJ much contrib-
                    uted to that, in referring, in the aforementioned Chorzów Factory case, to
                    the obligation of reparation as corresponding to a principle of interna‑
                    tional law, and as conforming an “indispensable complement” to the
                    wrongful act, so as to efface all the consequences of this latter (i.e., the
                    provision of full reparation). In effect, support to the duty of reparation
                    came from distinct trends of opinion.

                      29. There were those who held, in the early twentieth century, that that
                    duty originated in the postulates of natural law. Amongst those was
                    Paul Fauchille, who, in 1922, lucidly pondered that the rules governing
                    the international responsibility of States, as to reparations,
                          “can be summed up in the natural law idea that any act causing injury
                          to others obliges whoever is responsible for that injury to make rep-
                          aration for it. This idea is applied in private law in the relations
                          between individuals ; there is no reason why it should not also be
                          applied in the relations between nations and between nations and
                          individuals.” 44
                    Depending on the circumstances of the cases, the duty of reparation for
                    damages may thus be performed to the benefit of States, or else of indi-
                    viduals, whoever has been injured. Parallel to the trend of jusnaturalist
                    thinking on the matter, there were also those who beheld the duty of
                    reparation in all legal systems of (positive) law, without which those sys-
                    tems would simply not exist 45.
                       30. In any case, attention began to be turned to the situation of the
                    victim, as beneficiary of reparation, and if there were treaties which pro-
                    vided for reparation, this was so — unlike what Kelsen had assumed —
                    because such treaties acknowledged a pre-existing and well‑established
                    principle of customary international law to the same effect 46. At the basis
                    of this principle, found in all national legal systems, was the “philosophi-
                    cal idea” which “translates the natural law precept ‘neminem laedere’” 47.
                    Be that as it may, reparation was already widely acknowledged as a pos-
                    tulate of customary international law, whereby a “prestation” is owed by
                    the wrongdoer to the victim, as a reparation for the harm done, and the
                    victim has the corresponding right to claim it 48. By the mid‑twentieth cen-
                    tury, it was possible to state, as Hildebrando Accioly did, that . . .“[t]he

                       44 P. Fauchille, Traité de droit international public, Vol. I, Part I, Paris, Libr. A. Rous-

                    seau Ed., 1922, p. 515. [Translation by the Registry.]
                       45 Cf., e.g., L. Reitzer, La réparation comme conséquence de l’acte illicite en droit inter‑

                    national, Paris, Libr. Rec. Sirey, 1938, p. 30.
                       46 J. Personnaz, La réparation du préjudice en droit international public, Paris,

                    Libr. Rec. Sirey, 1939, pp. 53 and 60.
                       47 Ibid., p. 59. [Translation by the Registry.]
                       48 L. Reitzer, La réparation comme conséquence de l’acte illicite…, op. cit. supra note 45,

                    pp. 19, 23, 25, 48 and 213.

                    38

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                    359 	       ahmadou sadio diallo (sep. op. cançado trindade)

                    general principle of the duty of reparation for injury is accepted through-
                    out the international order” 49.
                       31. Yet, there was a long way to go, in the progressive development of
                    reparation for injuries resulting from international wrongs. The matter
                    continued to be studied — as, in the era of the United Nations, in the
                    long‑standing work of the International Law Commission (mainly in the
                    period 1956-2001) —, largely in the framework of the relations among
                    States. With the gradual expansion of international legal personality (and
                    capacity), ineluctably accompanied by the corresponding expansion of
                    international responsibility, the need was felt to consider reparation for
                    damages in other and distinct contexts, beyond that of the strict inter‑State
                    framework of dispute‑settlement, which became conceptually unsatisfac-
                    tory.

                                            V. An Indissoluble Whole :
                                   Breach of International Law and Compliance
                                    with the Duty of Reparation for Damages

                       32. The domain of international responsibility is central to interna-
                    tional law, as without international responsibility the international legal
                    system would not exist. The duty of full reparation is the prompt and
                    indispensable complement of an internationally wrongful act, so as to
                    cease all the consequences ensuing therefrom, and to secure respect for
                    the international legal order 50. The duty of reparation within the realm of
                    international responsibility is attached to subjectivity in international law,
                    ensuing from the condition of being subject of rights and bearer of duties
                    in the law of nations (droit des gens) 51. The advent of the international
                    law of human rights and of contemporary international criminal law has
                    had the impact of clarifying this whole matter, leaving no doubts that
                    individuals — no longer only States — are also subjects of rights and
                    bearers of duties emanating directly from international law (the droit des
                    gens) 52.
                       33. The treatment to be dispensed to reparations was only to evolve,
                    and considerably so, with the advent of the international law of human
                    rights, being ineluctably victim‑oriented as it is. The imperative of compli-
                    ance with the duty of reparation was not to be limited to the avoidance of
                    sanctions or reprisals (as propounded by Kelsen, supra) at inter‑State
                    level. Beyond that advantage stood, in the domain of juridical epistemol-

                       49 H. Accioly, “Principes généraux de la responsabilité internationale d’après la doctrine

                    et la jurisprudence”, Recueil des cours de l’Académie de droit international de La Haye,
                    Vol. 96, 1959, p. 415. [Translation by the Registry.]
                       50 C. Cepelka, Les conséquences juridiques du délit en droit international contemporain,

                    Prague, Universita Karlova, 1965, pp. 15, 17‑18, 21‑22, 60-61 and 79.
                       51 Ibid., pp. 15 and 53.
                       52 A. A. Cançado Trindade, Evolution du droit international au droit des gens — L’accès

                    des particuliers à la justice internationale : le regard d’un juge, Paris, Pedone, 2008, pp. 1‑187.

                    39

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                    360 	        ahmadou sadio diallo (sep. op. cançado trindade)

                    ogy, the imperative of the realization of justice. The original breach or
                    violation of international law (irrespective of who committed it) came to
                    be regarded as forming an indissoluble whole with the compliance with the
                    duty of reparation (irrespective of who is its beneficiary).
                       34. This is so, irrespective of the circumstances of the case, as that
                    imperative, in my understanding, touches on the foundations of interna-
                    tional law. It was soon to meet with judicial recognition of the
                    Hague Court (both the PCIJ and the ICJ). Thus, as early as in 1927‑1928,
                    in the [aforementioned] Chorzów Factory case, the PCIJ invoked a pre-
                    cept of customary international law, reflecting a fundamental principle of
                    international law, to the effect that “the breach of an engagement involves
                    an obligation to make reparation in an adequate form. Reparation there-
                    fore is the indispensable complement of a failure to apply a convention.” 53
                    And the PCIJ added that such reparation “must, as far as possible, wipe
                    out all the consequences of the illegal act and re-establish the situation
                    which would, in all probability, have existed if that act had not been
                    committed” 54. Furthermore — as I recalled in a recent dissenting opin-
                    ion (in this Court’s Judgment of 3 February 2012),
                              “In the present case concerning the Jurisdictional Immunities of the
                           State, (. . .) [t]he State’s obligation of reparation ineluctably ensues
                           therefrom, as the ‘indispensable complement’ of those grave breaches.
                           As the jurisprudence constante of the old PCIJ further indicated,
                           already in the inter‑war period, that obligation is governed by inter-
                           national law in all its aspects (e.g., scope, forms, beneficiaries) ; com-
                           pliance with it shall not be subject to modification or suspension by
                           the respondent State, through the invocation of provisions, interpre-
                           tations or alleged difficulties of its own domestic law (Jurisdiction of
                           the Courts of Danzig, Advisory Opinion, 1928, P.C.I.J., Series B,
                           No. 15, pp. 26‑27 ; Greco‑Bulgarian “Communities”, Advisory Opinion,
                           1930, P.C.I.J., Series B, No. 17, pp. 32 and 35 ; Free Zones of Upper
                           Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B,
                           No. 46, p. 167 ; Treatment of Polish Nationals and Other Persons of
                           Polish Origin or Speech in the Danzig Territory, Advisory Opinion,
                           1932, P.C.I.J., Series A/B, No. 44, p. 24).” (Jurisdictional Immuni‑
                           ties of the State (Germany v. Italy : Greece intervening), Judgment,
                           I.C.J. Reports 2012 (I), p. 265, para. 241.)
                       35. The breach of international law and the ensuing compliance with
                    the duty of reparation for injuries are two sides of the same coin ; they
                    form an indissoluble whole, which cannot at all be disrupted by an undue
                    invocation of State sovereignty or State immunity. This is the view which
                    I have sustained in my dissenting opinion in the recent case on the Juris‑
                    dictional Immunities of the State (Germany v. Italy : Greece intervening)

                         53 Factory at Chorzów, Jurisdiction, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21.
                      54 Factory at Chorzów, Merits, Judgment No. 13, 1928, P.C.I.J., Series A, No. 17, pp. 29

                    and 47‑48.

                    40

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                    361 	       ahmadou sadio diallo (sep. op. cançado trindade)

                    (Judgment, I.C.J. Reports 2012 (I)), and which I again sustain in the
                    present Judgment of the Diallo case : the reparations are owed by the
                    responsible State concerned to the individuals victimized, as illustrated, in
                    my perception, by both cases. The individual right to reparation is
                    well‑established in international human rights law, as demonstrated by
                    the considerable case law of the IACtHR and the ECHR on the matter.
                       36. Contemporary international tribunals cannot remain oblivious of
                    such significant development in recent years. As I deemed it fit to warn in
                    my aforementioned dissenting opinion in the recent Judgment on the
                    Jurisdictional Immunities of the State, it would be without foundation to
                    keep on claiming that the regime of reparations for breaches of human
                    rights would exhaust itself at the inter‑State level, “to the detriment of the
                    individuals” concerned. After all, the individual victims of those viola-
                    tions “are the titulaires of the right to reparation”, and

                          “[a]n interpretation of the regime of reparations as belonging purely
                          to the inter-State level would furthermore equate to a complete mis-
                          conception of the position of the individual in the international legal
                          order. In my own conception, ‘the human person has emancipated
                          herself from her own State, with the acknowledgement of her rights,
                          which are prior and superior to this latter’.” 55 (I.C.J. Reports 2012 (I),
                          p. 269, para. 252.)
                    Thus, the regime of reparations for human rights violations could not
                    exhaust itself at the inter-State level, leaving the individual at the end
                    without any reparation, and at the mercy of the entire discretion of the
                    wrongdoing State.
                       37. The right of access to justice lato sensu encompasses not only the
                    access to a competent tribunal (at national or international level), but
                    also the right — and its exercise — to an effective remedy and the guar-
                    antees of the due process of law, so as to have one’s case fairly heard and
                    adjudicated upon. It further comprises the reparations owed to the vic-
                    tims (whenever they are due to them), in the full and faithful compliance
                    with, or execution of, the judgments at issue. Thus properly conceptual-
                    ized, the right of access to justice forms part of international protection
                    itself.
                       38. In the present domain of reparations, as in others, contemporary
                    international law, the jus gentium of our days, has at last liberated itself
                    from the chains of statism. Human rights constitute a basic foundation of
                    the international legal order, with the reassuring advent of the new pri-
                    macy of the raison d’humanité over the raison d’Etat. States are aware that
                    nowadays they are bound to respond for the treatment they dispense to

                       55 A. A. Cançado Trindade, The Access of Individuals to International Justice, op. cit.

                    supra note 30, p. 209 ; A. A. Cançado Trindade, Evolution du droit international au droit des
                    gens — L’accès des particuliers à la justice internationale : Le regard d’un juge, op. cit. supra
                    note 52, pp. 29 and 146.

                    41

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                    362 	    ahmadou sadio diallo (sep. op. cançado trindade)

                    human beings under their respective jurisdictions. The present Diallo
                    case, decided by the ICJ on the basis of human rights treaties, bears wit-
                    ness of this reassuring evolution.

                       39. Within this humanized outlook, the reparatio (from the Latin repa‑
                    rare, “to dispose again”) ceases all the effects of the breaches of interna-
                    tional law (the violations of human rights) at issue, and provides
                    satisfaction (as a form of reparation) to the victims ; by means of the
                    reparations, the law re‑establishes the legal order broken by those viola-
                    tions — a legal order erected on the basis of the full respect for the rights
                    inherent to the human person. The full reparatio does not “erase” the
                    human rights violations perpetrated, but rather ceases all its effects, thus
                    at least avoiding the aggravation of the harm already done, besides restor-
                    ing the integrity of the legal order, as well as that of the victims.

                       40. One has to be aware that it has become commonplace in legal cir-
                    cles — as is the conventional wisdom of the legal profession — to repeat
                    that the duty of reparation, conforming a “secondary obligation”, comes
                    after the breach of international law. This is not my conception ; when
                    everyone seems to be thinking alike, no one is actually thinking at all. In
                    my own conception, breach and reparation go together, conforming an
                    indissoluble whole : the latter is the indispensable consequence or comple-
                    ment of the former. The duty of reparation is a fundamental obligation,
                    and this becomes clearer if we look into it from the perspective of the
                    centrality of the victims, which is my own. The indissoluble whole that
                    violation and reparation conform admits no disruption by means of the
                    undue invocation, by the responsible State, of its sovereignty or its immu-
                    nities, so as to evade the indispensable consequence of the international
                    breaches incurred into : the reparations due to the victims.

                                      VI. The Centrality of the Victims
                                        in Human Rights Protection,
                                     and Its Implications for Reparations

                                      1. The Central Position of the Victims
                       41. International law itself, in recognizing rights inherent to the human
                    person, disauthorized the archaic positivist dogma which purported, in an
                    authoritarian way, to reduce those rights to the ones “granted” or “con-
                    ceded” by the State. Contrariwise, the recognition of the individual as a
                    subject of both domestic and international law comes at last to give an
                    ethical content to the norms of both legal orders : domestic and interna-
                    tional. It further acknowledges the need for all States, in order to avoid
                    new violations of human rights, to answer for the way they treat human
                    beings under their respective jurisdictions, and to provide reparation for

                    42

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                    the harm done to them. Rights, being inherent to the human person, and
                    anterior and superior to the State, are not reduced to those which the
                    State is prepared to “grant” or “concede” to persons under its jurisdic-
                    tion, at its sole discretion.
                       42. The subjects of rights and the beneficiaries of reparations (supra),
                    under human rights treaties, are the individuals. The centrality of their
                    position in the present domain of protection is well-established. This
                    responds to a true need of the international community itself, which seeks
                    nowadays to be guided by superior common values. Such need was intui-
                    tively perceived and heralded, some decades ago, in the first half of the
                    twentieth century, in a pioneering way, by André N. Mandelstam 56,
                    Georges Scelle 57 and Charles de Visscher 58. In our times, the growing
                    acknowledgment, by the international legal order, of the importance of
                    reparations to victims of human rights violations, is a sign of its maturity,
                    even though there remains a long way to go, to take into other areas the
                    contribution of the international law of human rights. In this way, the
                    historical process of the humanization of international law, intuitively
                    detected and propounded, some decades ago, by a generation of jusinter-
                    nationalists with a humanist formation (such as, e.g., M. Bourquin,
                    A. Favre, S. Sucharitkul and S. Glaser) 59, will keep on advancing 60.

                       43. In fact, no one would, in sane conscience, challenge today that
                    individuals are subjects of rights and bearers of duties which emanate
                    directly from international law, and that States which violate their rights
                    are bound to provide them reparation for the damages. In recent decades,
                    the international community itself has reckoned the need to provide pro-
                    tection to the rights of the human beings who compose it (grouped under
                    distinct forms of socio‑political organization, either the State or others),

                       56 A. N. Mandelstam, Les droits internationaux de l’homme, Paris, Editions internatio-

                    nales, 1931, pp. 95‑96, 103 and 138.
                       57 G. Scelle, Précis de droit des gens — Principes et systématique, Part I, Paris,

                    Libr. Rec. Sirey, 1932 (reimpr. CNRS, 1984), p. 48.
                       58 Ch. de Visscher, “Rapport : ‘Les droits fondamentaux de l’homme, base d’une

                    restauration du droit international’”, Annuaire de l’Institut de droit international (1947),
                    pp. 3 and 9.
                       59 Cf. M. Bourquin, “L’humanisation du droit des gens”, La technique et les prin‑

                    cipes du droit public — Etudes en l’honneur de Georges Scelle, Vol. I, Paris, LGDJ, 1950,
                    pp. 24‑38 ; A. Favre, “Les principes généraux du droit, fonds commun du droit des gens”,
                    Recueil d’études de droit international en hommage à Paul Guggenheim, Geneva, IUHEI,
                    1968, pp. 369‑390 ; S. Sucharitkul, “L’humanité en tant qu’élément contribuant au
                    développement progressif du droit international contemporain”, L’avenir du droit inter‑
                    national dans un monde multiculturel/The Future of International Law in a Multicultural
                    World (Colloque de La Haye de 1983, ed. R.‑J. Dupuy), The Hague, Nijhoff/Académie
                    de droit international de La Haye/UNU, 1984, pp. 418‑427 ; S. Glaser, “La protection
                    internationale des valeurs humaines”, 60 Revue générale de droit international public (1957),
                    pp. 211‑241.
                       60 Cf. A. A. Cançado Trindade, “International Law for Humankind : Towards a New

                    Jus Gentium — General Course on Public International Law, Part II”, Recueil des cours de
                    l’Académie de droit international de La Haye, Vol. 317, 2005, pp. 19‑27 and 269‑282.

                    43

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                    with particular attention to those — individually or in groups — who find
                    themselves in a situation of special vulnerability.
                       44. Even if, in certain cases, the international legal capacity of some
                    individuals undergoes certain contingencies in view of their juridical or
                    existential condition (children, elderly persons, stateless persons, among
                    others), this in no way affects the essence and fundamental unity of their
                    legal personality. They remain subjects of rights emanating from the jus
                    gentium, and their unaffected international legal personality is the con-
                    crete expression of their inherent dignity 61. They cannot be mistreated by
                    the holders of the public power of the State, and, in case they are, repara-
                    tion is owed to them. The international legal personality of the human
                    person and the protection of the law subsist intact, irrespective of his or
                    her juridical or existential condition ; and his or her personality imposes
                    limits to the power of the State.

                                         2. The Implications for Reparations
                       45. The implications of the international subjectivity of individuals for
                    reparations due to them were to challenge the postulates of traditional
                    doctrine of State responsibility, and in particular its unsatisfactory and
                    artificial inter‑State outlook. Thus, towards the end of the last century, in
                    the mid‑1980s, the Cuban jurist F. V. García‑Amador criticized the tradi-
                    tional outlook (reminiscent of E. de Vattel) of international responsibility
                    which viewed this latter as a “strictly ‘inter-State’ legal relationship” ; he
                    retorted that that traditional approach was not appropriate to deal with
                    claims for reparations to damages to individuals, such as cases of unlaw-
                    ful detention followed by arbitrary expulsion 62. The damage — he
                    added — is done to the individual himself (and not to his State of nation-
                    ality), who is subjected to the “unnecessary humiliation” of the expul-
                    sion 63.

                       46. In sum, it is a damage done to the human person and not to the
                    State. It is that damage that is taken as “the measure” for the determina-
                    tion of the reparation due 64, i.e., the damage done to the individual con-
                    cerned. It is incongruous to approach this matter from a strict “inter‑State”
                    outlook. In this respect, García‑Amador rightly observed : “The artificial-
                    ity, and consequently also the inconsistencies and contradictions, of the
                    traditional doctrine become clearly apparent when one considers the cri-
                    terion generally applied for measuring the reparation.” 65

                       61 IACtHR, advisory opinion OC‑17/02 (of 28 August 2002), on the Juridical Condi‑

                    tion and Human Rights of the Child, concurring opinion of Judge Cançado Trindade,
                    paras. 32‑34.
                       62 F. V. García‑Amador, The Changing Law of International Claims, Vol. II, N.Y./

                    London, Oceana Publs., 1984, pp. 560 and 584‑586.
                       63 Ibid., pp. 563‑564.
                       64 Ibid., p. 562.
                       65 Ibid.

                    44

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                    365 	      ahmadou sadio diallo (sep. op. cançado trindade)

                       47. The UN International Law Commission (ILC) itself, in the 2001
                    Report on its work on the international responsibility of a State, saw it fit
                    to recall, in addressing the obligation “to make full reparation for the
                    injury caused by the internationally wrongful act”, 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.” 66

                    The ILC thus expressly reckoned that the international responsibility of a
                    State “may accrue directly to any person or entity other than a State, and
                    Article 33 makes this clear” 67.

                       48. As disclosed by the present Diallo case, one is, in sum, faced with a
                    damage done to an individual. He (and not his State of origin) is the sub-
                    ject of the rights breached, he suffered unlawful detention and arbitrary
                    expulsion (from the State of residence), he is the subject of the corre-
                    sponding right to reparation, and the beneficiary thereof. His case was
                    originally brought before this Court by his State of nationality (in the
                    exercise of diplomatic protection), but, in its decision on the merits (Judg-
                    ment of 30 November 2010), the Court made clear that the applicable law
                    was the international law of human rights, concerned with the rights of
                    human beings and not at all of States. The cas d’espèce, further clarified
                    in this regard by the present Judgment on reparations, bears witness of
                    the reassuring historical process, presently in course, of the humanization
                    of international law — as I have been pointing out and supporting since
                    the 1990s 68.

                       66 ILC, Report of the International Law Commission on the Work of Its 53rd Session

                    (2001), N.Y., UN, 2001, p. 214.
                       67 Ibid.
                       68 Cf., to this effect, my earlier individual opinions in the IACtHR (1998 until 2003),

                    namely : IACtHR, case Castillo Petruzzi and Others v. Peru (preliminary objections, judg-
                    ment of 4 September 1998), concurring opinion of Judge Cançado Trindade, paras. 6‑7 ;
                    IACtHR, advisory opinion No. 16 of the Right to Information on Consular Assistance in
                    the Framework of the Guarantees of the Due Process of Law (1 October 1999), concurring
                    opinion of Judge Cançado Trindade, paras. 34‑35 ; IACtHR, case of the Haitians and Domi‑
                    nicans of Haitian Origin in the Dominican Republic (provisional measures of protection,
                    resolution of 18 August 2000), concurring opinion of Judge Cançado Trindade, para. 12 ;
                    IACtHR, advisory opinion No. 17 on the Juridical Condition and Human Rights of the
                    Child (28 August 2002), concurring opinion of Judge Cançado Trindade, paras. 66‑67
                    and 71 ; IACtHR, advisory opinion No. 18 on the Juridical Condition and Rights of Un-
                    documented Migrants (17 September 2003), concurring opinion of Judge Cançado Trindade,

                    45

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                    366 	       ahmadou sadio diallo (sep. op. cançado trindade)

                       49. This is the situation, how it stands, in the present Diallo case,
                    resolved by the ICJ on the basis of the applicable treaties on the protec-
                    tion of the rights of the human person. In other and entirely distinct situ-
                    ations (e.g., in territorial and boundary matters, in the regulation of
                    spaces, in diplomatic relations, among others) damage may be found to
                    have been done to the State. And in yet other circumstances (e.g., in situ-
                    ations of armed conflicts), damage may be found to have been done to
                    both the State and the human person. This is what happened, e.g., in the
                    case concerning Armed Activities on the Territory of the Congo (Demo‑
                    cratic Republic of the Congo v. Uganda) (Judgment, I.C.J. Reports 2005),
                    wherein the Court, in recalling that a State responsible for international
                    wrongful acts is under the obligation to make full reparations for the
                    injury caused by those acts, added that, in the cas d’espèce, those acts
                    resulted in injury done to the Democratic Republic of the Congo “and to
                    persons on its territory” (ibid., p. 257, para. 259) 69. Circumstances vary
                    from case to case ; but at least they leave it clear that a strict inter‑State
                    approach to the State’s compliance with the duty to provide reparation,
                    irrespective of such circumstances, appears anachronistic and unsustain-
                    able.

                                            3. The Distinct Forms of Reparation
                       50. It has been in the domain of international human rights protection
                    that reparations have been reckoned as comprising, in the light of the
                    general principle of neminem laedere, the restitutio in integrum (re‑
                    establishment of the prior situation of the victim, whenever possible),
                    in addition to the indemnizations, the rehabilitation, the satisfaction, and
                    the guarantee of non‑repetition of the acts or omissions in violation of
                    human rights. The duty of reparation, corresponding to a general princi-
                    ple, has found judicial recognition (supra), and support in legal doc-
                    trine 70. The duty of reparation for damages stands as the indispensable

                    paras. 27‑28 ; there follow successive references to, and assertions of, the humanization of
                    international law, in my other individual opinions in the IACtHR, also from 2004 to 2008.
                    For earlier writings, likewise followed by subsequent ones to the same effect, cf., inter alia,
                    A. A. Cançado Trindade, “A Emancipação do Ser Humano como Sujeito do Direito Inter-
                    nacional e os Limites da Razão de Estado”, 6/7 Revista da Faculdade de Direito da Univer‑
                    sidade do Estado do Rio de Janeiro (1998‑1999), pp. 425‑434 ; A. A. Cançado Trindade, “La
                    Humanización del Derecho Internacional y los Límites de la Razón de Estado”, 40 Revista
                    da Faculdade de Direito da Universidade Federal de Minas Gerais, Belo Horizonte/Brazil
                    (2001), pp. 11‑23.
                         69
                          And cf. also I.C.J Reports 2005, p. 278-279, paras. 342 and 344.
                         70
                          Cf., inter alia, Bin Cheng, General Principles of Law as Applied by International
                    Courts and Tribunals, Cambridge University Press, 1994 (reprint), p. 233 ; J. A. Pastor
                    Ridruejo, La Jurisprudencia del Tribunal Internacional de La Haya — Sistematización
                    y Comentarios, Madrid, Edit. Rialp, 1962, p. 429 ; H. Wassgren, “Some Reflections
                    on Restitutio in Integrum Especially in the Practice of the European Court of Human
                    Rights”, 6 Finnish Yearbook of International Law, Helsinki (1995), pp. 575‑595.

                    46

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                    367 	      ahmadou sadio diallo (sep. op. cançado trindade)

                    complement of the breach of a conventional obligation of respect for
                    human rights 71.
                         51. Contemporary doctrine has identified the aforementioned distinct
                      forms of reparation from the perspective of the victims, of their claims,
                      needs and aspirations. By the restitutio in integrum one seeks the re‑
                      establishment — whenever possible 72 — of the statu quo ante. The
                     rehabilitation comprises all the measures — medical, psychological, jurid-
                    ical and others — to be taken to re‑establish the dignity of the victims.
                    The indemnizations, often and unduly confused with the reparation,
                    of which they are but one of the forms, comprise the pecuniary sum owed
                    to the victims for the damages (material 73 and moral or immaterial 74)
                    suffered. The satisfaction is linked to the purported aim to cease the
                     effects of the violations, and the guarantee of non‑repetition (of the
                     breaches) discloses a preventive dimension.
                         52. Juridical concepts, while encompassing values, are a product of
                     their time, and as such are not unchangeable. The juridical categories
                     crystallized in time and which came to be utilized — in a context distinct
                     from the ambit of the international law of human rights — to govern the
                     determination of reparations were strongly marked by analogies with
                     solutions of private law, and, in particular, of civil law (droit civil), in the
                     ambit of national legal systems : such is the case, e.g., of the concepts of
                     material damage and moral or immaterial damage, and of the elements of
                     damnum emergens and lucrum cessans. Such concepts have been strongly
                     determined by a patrimonial content and interest — which is explained
                     by their origin — marginalizing what is most important in the human
                     person, namely, her condition of spiritual being 75.

                       53. The pure and simple transposition of such concepts onto the inter-
                    national level was bound to generate uncertainties and discussion. The
                    criteria of determination of reparations, of an essentially patrimonial con-
                    tent (ensuing from civil law analogies), does not appear to me entirely
                    adequate or sufficient when transposed into the domain of the interna-
                    tional law of human rights, endowed with a specificity of its own. It is not
                    surprising that, as from the early 1990s, the matter began to be reassessed

                       71 Cf., inter alia, P. Reuter, “Principes de droit international public”, 103 Recueil

                    des cours de l’Académie de droit international de La Haye, Vol. 103, 1961, pp. 585‑586 ;
                    R. Wolfrum, “Reparation for Internationally Wrongful Acts”, Encyclopedia of Public Inter‑
                    national Law (ed. R. Bernhardt), Vol. 10, Amsterdam, North Holland, 1987, pp. 352‑353.
                         72In case of violation of the right to life, for example, restitution becomes impossible.
                         73Not seldom, in relation to this point, in practice, reference is made to damnum emer‑
                    gens and lucrum cessans.
                        74 Which, in most cases, is determined by a judgment of equity.
                        75 This is disclosed by the fact that even the moral damage itself is commonly regarded,

                    in the classical conception, as amounting to the so‑called “non-patrimonial damage”. The
                    point of reference still keeps on being the patrimony.

                    47

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                    368 	          ahmadou sadio diallo (sep. op. cançado trindade)

                    in the realm of this latter, at the United Nations 76, well before the
                    endorsement by the UN General Assembly in 2005 of the “Basic Princi-
                    ples and Guidelines on the Right to a Remedy and Reparation for Vic-
                    tims of Gross Violations of International Human Rights Law and Serious
                    Violations of International Humanitarian Law” 77, elaborated and
                    adopted by the [former] UN Commission on Human Rights 78 (cf. infra).

                         54. The important point here to retain is that, in the ambit of the
                     international law of human rights, the forms of reparation (restitutio in
                      integrum, indemnizations, rehabilitation, satisfaction, guarantee of
                      non‑repetition) are to be necessarily approached as from the perspective of
                      the victims themselves, keeping in mind their claims, their needs and aspi-
                      rations. Reparations for human rights breaches are, in fact, directly and
                      ineluctably linked to the condition of the victims and their next of kin,
                      who occupy in it a central position herein. Reparations are to be con-
                      stantly reassessed as from the perspective of the integrality of the person-
                      ality of the victims themselves, bearing in mind the fulfilment of their
                      aspirations as human beings and the restoration of their dignity 79.
                         55. It is crystal clear that the aforementioned 2005 UN Basic
                    Principles and Guidelines on the Right to a Remedy and Reparations is
                     also ineluctably victim‑oriented : it rightly pursues a victim‑centred
                     approach, envisaging the right to reparation as a right of the individu-
                      als victimized, entailing the corresponding duty to have justice done
                      to the individuals victimized, what becomes fundamentally important
                      in cases of grave breaches of their rights 80. Under certain circums
                    tances, next of kin or dependants of the direct victims may also

                        76 Cf. Th. van Boven (special rapporteur), Study concerning the Right to Restitution,

                    Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and
                    Fundamental Freedoms — Final Report, UN/Commission on Human Rights, UN doc. E/
                    CN.4/Sub.2/1993/8, of 2 July 1993, pp. 1‑65 ; and cf. also : [Various Authors], Seminar on
                    the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations
                    of Human Rights and Fundamental Freedoms (Proceedings of the Seminar of Maastricht
                    of 1992), Maastricht, SIM/Univ. Limburg, 1992, pp. 3‑253. And cf., subsequently,
                    M. C. Bassiouni (special rapporteur), The Right to Restitution, Compensation and Rehabili‑
                    tation for Victims of Gross Violations of Human Rights and Fundamental Freedoms — Final
                    Report, doc. E/CN.4/2000/62, of 18 January 2000, pp. 1‑11.
                         77   UN General Assembly resolution 60/147, of 16 December 2005.
                         78
                          By its resolution 2005/35, of 19 April 2005.
                         79
                          It is significant that the IACtHR, in its judgment (of 27 November 1998) in the case of
                    Loayza Tamayo v. Peru, has, besides the measures of reparation that it ordered, also rightly
                    recognized the existence of a damage to the project of life (linked to satisfaction) of the
                    victim, caused by her detention (in the circumstances in which it took place). Cf. IACtHR,
                    case of Loayza Tamayo v. Peru (reparations), judgment (of 27 November 1998), Series C,
                    No. 42, paras. 83‑192, and joint separate opinion of Judges A. A. Cançado Trindade and
                    A. Abreu Burelli, paras. 1‑17.
                       80 Cf. P. d’Argent, “Le droit de la responsabilité internationale complété ? Examen des

                    principes fondamentaux et directives concernant le droit à un recours et à réparation des

                    48

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                    369 	      ahmadou sadio diallo (sep. op. cançado trindade)

                    be regarded as “victims”, entitled to make use of the right of access to
                    justice.

                       56. The 2005 UN Basic Principles and Guidelines, at last adopted
                    on 16 December 2005, were preceded by a unique and innovative juris-
                    prudential construction of the IACtHR on this subject‑matter (in particu-
                    lar on the distinct forms of reparation), which took place largely in the
                    years 1998‑2004, and which has been attracting growing attention of
                    expert writing in recent years 81 (cf. infra). It can safely be stated that, in
                    some respects, that jurisprudential construction of the IACtHR has, in its
                    conceptualization, for the purposes of reparation, gone further than the
                    2005 UN Basic Principles and Guidelines, in fostering the expansion of
                    the notion of victim, by encompassing as such the next of kin, also
                    regarded as “direct victims” in their own right (given their intense suffer-
                    ing), without conditionalities (such as that of accordance with domestic
                    law), in individualized as well as collective cases 82.

                       57. The centrality of the position of the victims, as justiciables, has
                    implications for the approach to distinct forms of reparations. Let us
                    take, as an example to illustrate this point, satisfaction as a form of repa-
                    ration. Within the framework of strictly inter‑State relations, satisfaction
                    as a form of reparation has been met with criticism, given the suscepti-
                    bilities surrounding the relations between States inter se 83. However, in
                    the framework of the relations between States and individuals under their

                    victimes de violations flagrantes du droit international des droits de l’homme et de viola-
                    tions graves du droit international humanitaire”, 51 Annuaire français de droit international
                    (2005), pp. 34‑35, 40, 43, 45 and 52.
                        81 Cf., e.g., [Various Authors], Réparer les violations graves et massives des droits de

                    l’homme : la Cour interaméricaine, pionnière et modèle ? (eds. E. Lambert Abdelgawad
                    and K. Martin-Chenut), Paris, Société de législation comparée, 2010, pp. 17‑334 ;
                    M. Scalabrino, “Vittime e Risarcimento del Danno : L’esperienza della Corte Interame-
                    ricana dei Diritti dell’Uomo”, 22 Comunicazioni e Studi, Milan (2002), pp. 1013‑1092 ;
                    C. Sandoval‑Villalba, “The Concepts of ‘Injured Party’ and ‘Victim’ of Gross Human
                    Rights Violations in the Jurisprudence of the Inter‑American Court of Human Rights : A
                    Commentary on Their Implications for Reparations”, Reparations for Victims of Genocide,
                    War Crimes and Crimes against Humanity (eds. C. Ferstman, M. Goetz and A. Stephens),
                    Leiden, Nijhoff, 2009, pp. 243‑282 ; K. Bonneau, “La jurisprudence innovante de la Cour
                    interaméricaine des droits de l’homme en matière de droit à reparation des victimes des
                    violations des droits de l’homme”, Le particularisme interaméricain des droits de l’homme
                    (eds. L. Hennebel and H. Tigroudja), Paris, Pedone, 2009, pp. 347‑382 ; I. Bottigliero,
                    Redress for Victims of Crimes under International Law, Leiden, Nijhoff, 2004, pp. 133‑145 ;
                    J. Schönsteiner, “Dissuasive Measures and the ‘Society as a Whole’ : A Working Theory
                    of Reparations in the Inter-American Court of Human Rights”, 23 American University
                    International Law Review (2007), pp. 127‑164.
                        82 A. A. Cançado Trindade, El Ejercicio de la Función Judicial Internacional — Memo‑

                    rias de la Corte Interamericana de Derechos Humanos, Belo Horizonte/Brazil, Edit.
                    Del Rey, 2011, Annex IV, pp. 313‑340.
                        83 Cf., e.g., B. Graefrath, “Responsibility and Damages Caused : Relationship between

                    Responsibility and Damages”, Recueil des cours de l’Académie de droit international de
                    La Haye, Vol. 185, 1984, pp. 84‑87.

                    49

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                    370 	      ahmadou sadio diallo (sep. op. cançado trindade)

                    respective jurisdictions, satisfaction has proven to be a very appropriate
                    form of reparation, and a particularly important one for the human
                    beings, victims of breaches of their rights by the States at issue.
                       58. The reassuring centrality of the victims in human rights protection
                    (an imperative of justice) has other implications as well, beyond the realm
                    of reparations. It is not my intention to dwell upon them, as they lie
                    beyond the scope of the present separate opinion. I shall limit myself to
                    observing that the victims’ central position has helped to awaken con-
                    science as to their importance, and the corresponding need of honouring
                    them, the victims. In our times, over the last decades, attention is at last
                    turning from the past praises of the deeds of national heroes (including
                    military and war heroes, conquerors and the like), to the memory of the
                    silent victims, to the need to honour their suffering in enduring the viola-
                    tions of their fundamental rights, and to avoid dropping their suffering
                    into oblivion 84.

                       59. In my dissenting opinion in the case on the Jurisdictional Immuni‑
                    ties of the State (Germany v. Italy : Greece intervening) (Judgment,
                    I.C.J. Reports 2012 (I), pp. 267-268, paras. 247-249), I have referred to
                    endeavours, throughout the last decade, to secure reparations also to
                    individuals, in the realm of international humanitarian law (e.g., the 2000
                    legal regime of the Ethiopia‑Eritrea Claims Commission, the 2004 Report
                    of the UN International Commission of Inquiry on Darfur, the 2010 Draft
                    Declaration of International Law Principles on Reparation for Victims of
                    Armed Conflict (Substantive Issues) of the International Law Associa-
                    tion’s International Committee on Reparation for Victims of Armed
                    Conflict. There appears thus to be an ever-growing awareness nowadays
                    of the individual victims’ right to reparation, not only in the domain of
                    the international law of human rights, but encompassing also the realm of
                    international humanitarian law.

                         VII. The Contribution of the Case Law of the International
                                Human Rights Tribunals (IACtHR and ECHR)

                                 1. The Relevance of Their Case Law on Reparations
                                                 Due to the Victims
                      60. In the light of all the aforesaid, the contribution of the case law of
                    the international human rights tribunals (the IACtHR and the ECHR) is

                       84 Cf., e.g., [Various Authors], Commémorer les victimes en Europe — XVIe‑XXIe siècles

                    (eds. D. El Kenz and F.‑X. Nérard), Champ Vallon, 2011, pp. 10, 18, 25, 65, 144, 262
                    and 328‑330.

                    50

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                    371 	       ahmadou sadio diallo (sep. op. cançado trindade)

                    noteworthy, and deserves particular attention for the consideration of the
                    matter of the reparations due to victims of human rights violations. The
                    growing case law of the IACtHR and the ECHR in recent years, on rep
                    arations to the victims of human rights violations, has contributed to
                    shift attention to the victims, human beings (and not States), disclosing
                    the centrality of their position in the present domain of protection
                    (cf. infra). In this respect, the present Diallo case is a landmark in the
                    evolving case law of the ICJ itself, as this latter has, for the first time in
                    its history, established violations of rights enshrined into human rights
                    treaties. The victim, the subject of rights and titulaire of the right to repa-
                    rations, is a human being (and not a State), Mr. A. S. Diallo.

                      61. To him, and not to his State of origin or of nationality, reparations
                    are due, pursuant to the human rights treaties at issue (the UN Covenant
                    on Civil and Political Rights, and the African Charter on Human and
                    Peoples’ Rights). In determining those reparations, it is only too natural
                    that the ICJ takes into due account the case law of the two human rights
                    courts, in construction for many years, and which has further been
                    invoked by the contending Parties themselves in the course of the present
                    proceedings before this Court, namely, the Inter‑American and the Euro-
                    pean Courts of Human Rights.

                       62. This is most reassuring, given the common mission of contempo-
                    rary international tribunals of securing the realization of justice. Both the
                    IACtHR and the ECHR have built a pioneering case law on the condition
                    of the victims for purposes of reparation. The IACtHR has, moreover,
                    much contributed to the evolution of the international law of human
                    rights itself with its creative jurisprudential construction of the distinct
                    forms of reparation (cf. infra). To the recently‑established African Court
                    on Human and Peoples’ Rights a similar role is reserved 85, in the years to
                    come.
                       63. In the first meeting ever, which brought together members and spe-
                    cial guests of the three contemporary Human Rights Courts (held at the
                    Palais des Droits de l’Homme in Strasbourg, on 8‑9 December 2008, on
                    the occasion of the 60th anniversary of the Universal Declaration of
                    Human Rights) 86, one of the topics more extensively discussed, as I well

                       85 In this respect, reference can be made to the practice, on reparations, of the African

                    Commission on Human and Peoples’ Rights ; cf., inter alia, e.g., G. J. Naldi, “Reparations
                    in the Practice of the African Commission on Human and Peoples’ Rights”, 14 Leiden
                    Journal of International Law (2001), pp. 681‑693.
                       86 For accounts of the meeting, cf. A. A. Cançado Trindade, “Vers un droit international

                    universel : la première réunion des trois cours régionales des droits de l’homme”, XXXVI
                    Curso de Derecho Internacional Organizado por el Comité Jurídico Interamericano (2009),
                    Washington, D.C., Secretaría General de la OEA, 2010, pp. 103‑125 ; Ph. Weckel, “La
                    justice internationale et le soixantième anniversaire de la Déclaration universelle des droits de
                    l’homme”, 113 Revue générale de droit international public (2009), pp. 5‑17.

                    51

6 CIJ1032.indb 98                                                                                26/11/13 09:37

                     372 	          ahmadou sadio diallo (sep. op. cançado trindade)

                     recall, was precisely the experience accumulated by the IACtHR and the
                     ECHR in the matter of reparations to victims of human rights viola-
                     tions, and the role reserved, from now onwards, to the three co‑existing
                     international human rights tribunals in the ongoing evolution of the
                     international case law on the matter.

                        64. Other contemporary international tribunals have much to benefit
                     from the experience gathered in this specific domain, in being attentive to
                     it and taking it into due account. Parallel to this development, in the last
                     two decades there have been endeavours to construct the practice of repa-
                     rations also in the ambit of international humanitarian law 87. Attention
                     has thereby been turned, for the purposes of protection, to the condition
                     of the victims, human beings, to the actual situation wherein they find
                     themselves. The human person has thus gradually recovered the central
                     place reserved to it in the contemporary international legal order, in the
                     new jus gentium of our times. The growing jurisprudence on reparations
                     for human rights violations bears witness of that.

                               2. The Contribution of the Inter-American Court of Human Rights
                        65. Reference has already been made to the unique and innovative
                     jurisprudential construction of the IACtHR in the matter of reparations
                      due to the victims of human rights violations (para. 56, supra). It has not
                      passed unperceived in expert writing that the IACtHR has relied on the
                      greater precision of the terms of Article 63 (1) of the American Conven-
                     tion on Human Rights 88 to construct its innovative and progressive
                      case law on the matter 89. To start with, the IACtHR has singled out the
                     role of considerations of equity in setting forth the amounts of repara-
                     tions due to individual victims, even in the absence of sufficient evidence
                     (even more forcefully in certain cases where respondent States withheld
                     their virtual monopoly of evidence).
                        66. Thus, for example, in the case of El Caracazo v. Venezuela (repara-
                     tions, judgment of 29 August 2002), the IACtHR proceeded to the deter-
                     mination of compensation on the basis of equity, taking into account the
                     suffering and “the alterations in the conditions of existence” of the vic-
                     tims and their next of kin (paras. 99‑100). In the case of Cantoral Bena‑
                     vides v. Peru (reparations, judgment of 3 December 2001), the IACtHR

                        87 Recent examples of the recognition of the right of individual reparation also in the

                     domain of international humanitarian law, are provided in my dissenting opinion in the
                     case of the Jurisdictional Immunities of the State (Germany v. Italy : Greece intervening),
                     Judgment, I.C.J. Reports 2012 (I), pp. 267-269, paras. 247-250.
                          88
                           Cf. note 93, infra.
                          89
                           Cf., to this effect, inter alia, e.g., G. Cohen-Jonathan, “Responsabilité pour atteinte
                     aux droits de l’homme”, La responsabilité dans le système international (Société française
                     pour le droit international, colloque du Mans), Paris, Pedone, 1991, pp. 114 and 116.

                     52

6 CIJ1032.indb 100                                                                                26/11/13 09:37

                     373 	     ahmadou sadio diallo (sep. op. cançado trindade)

                     also decided on the basis of equity (paras. 80 and 87). In my separate
                     opinion in the case of Cantoral Benavides v. Peru, I pondered inter alia
                     that
                             “In the present judgment, the Inter‑American Court extended the
                          protection of the law to the victim in the cas d’espèce, in establishing,
                          inter alia, the State’s duty to provide him with the means to undertake
                          and conclude his university studies in a centre of recognized academic
                          quality. This is, in my understanding, a form of providing reparation
                          for the damage to his project of life, conducive to the rehabilitation
                          of the victim. The emphasis given by the Court to his formation, to
                          his education, places this form of reparation (from the Latin reparatio,
                          derived from reparare, ‘to prepare or to dispose again’) in an adequate
                          perspective, from the angle of the integrality of the personality of the
                          victim, bearing in mind his self‑accomplishment as a human being and
                          the reconstruction of his project of life.” (Para. 10.)
                         67. In effect, the IACtHR has ordered a wide range of forms of repara-
                     tion (restitutio in integrum, compensation, victim satisfaction, victim rehab
                     ilitation, acts of public apology, guarantees of non‑repetition of human
                     rights breaches), unparalleled in the case law of other contemporary
                     international tribunals. In the recent cycle of cases of massacres 90 adjudi-
                     cated by the IACtHR (cf., inter alia, e.g., Aloeboetoe and Others v. Suri‑
                     name case, reparations, judgment of 10 September 1993 ; case of the
                     Massacre of Plan de Sánchez v. Guatemala, reparations, judgment
                     of 19 November 2004 ; case of the Moiwana Community v. Suriname,
                     judgment of 15 June 2005 ; case of the Massacres of Ituango v. Colombia,
                     judgment of 1 July 2006), the reparations ordered by the IACtHR have
                     included health, housing, education and human development initiatives.
                     In a distinct context, such measures of reparations were also ordered by
                     the IACtHR in the paradigmatic case of the Mayagna (Sumo) Awas Tingni
                     Community v. Nicaragua (judgment of 31 August 2001), concerning the
                     communal property of the members of an indigenous community. The
                     IACtHR thereby indicated, in such cases, that the rehabilitation of vic-
                     tims (cf. infra) may also have a collective dimension, when it concerns the
                     members of a given community.
                         68. In the leading case of the “Street Children” (Villagrán Morales and
                     Others) v. Guatemala (reparations, judgment of 26 May 2001), the Court
                     deemed it fit to warn that the obligation to make reparation is regulated,
                     in all aspects (scope, nature, forms and determination of the beneficiaries)
                     by international law ; the respondent State “may not invoke provisions of
                     its domestic law in order to modify or fail to comply” with that obligation
                     (para. 61). The IACtHR has reiterated this warning in successive cases,
                     e.g., its judgments on the cases of Bulacio v. Argentina (18 September

                        90 For a recent study, cf. A. A. Cançado Trindade, State Responsibility in Cases

                     of Massacres : Contemporary Advances in International Justice (Inaugural Address,
                     10 November 2011), Universiteit Utrecht, 2011, pp. 1‑71.

                     53

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                     2003, para. 72), of Las Palmeras v. Colombia (reparations, 26 November
                     2002, para. 38), of Hilaire, Constantine and Benjamin and Others v. Trini‑
                     dad and Tobago (21 June 2002, para. 203), of Trujillo Oroza v. Bolivia
                     (reparations, 27 February 2002, para. 61), of Bámaca Velásquez v. Guate‑
                     mala (reparations, 22 February 2002, para. 39), and, earlier on, of
                     Suárez Rosero v. Ecuador (reparations, 20 January 1999, para. 42). This
                     point forms today part of its jurisprudence constante on reparations.

                        69. Still as to the forms of reparation, the IACtHR has ordered, for
                     example, acts to honour the memory of victims, as in its judgments in the
                     cases of Bámaca Velásquez v. Guatemala (of 22 February 2002, repara-
                     tions), of Myrna Mack Chang v. Guatemala (25 November 2003), of the
                     Moiwana Community v. Suriname (of 15 June 2005), of Trujillo Oroza
                     v. Bolivia (of 27 February 2002, reparations), of the Massacre of Plan
                     de Sánchez v. Guatemala (of 19 November 2004, reparations). In this last
                     and dramatic case, those acts were to be accompanied (as they in fact
                     were) by social programmes (rehabilitation) for the members of the affected
                     community.
                        70. Furthermore, the IACtHR has also ordered, e.g., the public dis-
                     semination of the Court’s decisions and/or of the result of the ordered
                     investigations. It has done so in its judgments in the aforementioned cases
                     of Bulacio, of Bámaca Velásquez, of El Caracazo, as well as in the cases of
                     Barrios Altos v. Peru (14 March 2001), and of the Juvenile Reeducation
                     Institute v. Paraguay (2 September 2004). Moreover, in its judgments in
                     the aforementioned case of Bámaca Velásquez (merits, 25 November
                     2000, and reparations, 22 February 2002) as well as in that of 19 Mer‑
                     chants v. Colombia (5 July 2004), the IACtHR dwelt upon the right to
                     truth as a measure of reparation. In addition thereto, satisfaction as a
                     form of reparation for damage to the victim’s “project of life” was ordered
                     by the IACtHR, in its judgments both in the aforementioned case of Can‑
                     toral Benavides, and in the case of Loayza Tamayo v. Peru (reparations,
                     27 November 1998). Last but not least, the guarantee of non‑repetition of
                     human rights breaches was ordered by the IACtHR in, inter alia, e.g., its
                     judgments in the aforementioned case Bulacio, as well as in that of Cas‑
                     tillo Páez v. Peru (reparations, 27 November 1998).

                             3. The Contribution of the European Court of Human Rights
                        71. Like the IACtHR (supra), the ECHR has also pointed out the role
                     of considerations of equity in the determination of the amounts of repara-
                     tions due. Thus, for example, in the case of Lupsa v. Romania (judgment
                     of 8 June 2006), the ECHR found that “deporting the applicant did
                     objectively disrupt the management of his business”, and that “the conse-
                      quences of that disruption cannot be precisely quantified” (para. 70) ; it
                      then ordered a sum on an equitable basis, to cover all heads of damage
                      (para. 72, and cf. paras. 73-77). In the case Assanidze v. Georgia (judgment
                      of 8 April 2004), concerning arbitrary detention, the ECHR ruled like-

                     54

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                     wise on an equitable basis (para. 201, and cf. paras. 204‑207), and awarded
                     a lump‑sum amount for all heads of (material and immaterial) damage,
                     without setting out the reasons that led it to the specified amount
                     (para. 201).

                        72. In the same line of thinking, in the case of Orhan v. Turkey (judg-
                     ment of 18 June 2002), the ECHR decided, at the “level of just satisfac-
                     tion”, on the basis of considerations of equity (paras. 431‑434, and
                     cf. paras. 423‑424). It did the same in the case Lustig‑Prean and Beckett v.
                     United Kingdom (judgment of 25 July 2000), as compensation, on an
                     “equitable basis”, for “emotional and psychological” disturbances
                     (paras. 12 and 23). And again in the case Selçuk and Asker v. Turkey
                     (judgment of 24 April 1998), the ECHR likewise awarded reparations for
                     damages on the basis of equitable considerations (paras. 109‑112, and
                     cf. para. 106). And once more, in the Delta v. France case (judgment
                     of 19 December 1990), the ECHR took its decision, of award of compen-
                     sation, on an “equitable basis” (para. 43).
                        73. Parallel to such considerations of equity, as for the awarding of
                     reparations itself, the case law of the ECHR has, however, never been as
                     proactive as that of its sister institution across the Atlantic, the IACtHR.
                     It has not disclosed the same creativity, and has in general been particu-
                     larly cautious, in generally starting from predetermined categories of
                     pecuniary and non‑pecuniary damages, at times conveying the impression
                     that compensation would better be left for national courts to decide 91.
                     The distinct drafting of the respective provisions on reparations of the
                     European and the American Conventions on Human Rights, further-
                     more, conveys the impression that the phraseology of Article 41 of the
                     European Convention 92 did not ascribe to the ECHR as wide a horizon
                     for the determination of reparations than the one ascribed by Arti-
                     cle 63 (1) of the American Convention 93 to the IACtHR ; in any case, this
                     is at least what the ECHR seems to have understood to date. It is thus
                     not surprising to find arguments as to the need for the ECHR “to revisit”

                        91 Cf., inter alia, e.g., L. Wildhaber, “Reparations for Internationally Wrongful Acts

                     of States — Article 41 of the European Convention on Human Rights : Just Satisfaction
                     under the European Convention on Human Rights”, 3 Baltic Yearbook of International
                     Law (2003), pp. 1‑18.
                        92 Article 41 (formerly Article 50) — on just satisfaction — of the European Conven-

                     tion states that : “If the Court finds that there has been a violation of the Convention or the
                     Protocols thereto, and if the internal law of the High Contracting Party concerned allows
                     only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
                     the injured party.”
                        93 Article 63 (1) of the American Convention states that :

                              “If the Court finds that there has been a violation of a right or freedom protected
                           by this Convention, the Court shall rule that the injured party be ensured the enjoy-
                           ment of his right or freedom that was violated. It shall also rule, if appropriate, that
                           the consequences of the measure or situation that constituted the breach of such right
                           or freedom be remedied and that fair compensation be paid to the injured party.”

                     55

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                     its own case law on just satisfaction/satisfaction équitable, and in particu-
                     lar on reparation for moral (or “non‑pecuniary”) damages, so as to
                     enlarge its horizon to the benefit of the justiciables 94.

                                      VIII. Neminem Laedere and Reparation
                                         for Moral Damage to Individuals

                        74. In domestic legal systems, the whole theory of civil liability/respon‑
                     sabilité civile found inspiration in the fundamental principle neminem lae‑
                     dere (cf. supra). The conception of damage and of the reaction of the legal
                     system to wrongful acts, requiring reparation, goes back to Roman law,
                     to the theory of id quod interest, whereby the harmed person is entitled to
                     redress. One restored thereby the balance or equilibrium needed in human
                     relations. There was also concern to safeguard thereby human personality
                     as such, the integrity of the human person. From ancient to modern
                     times, unlike material damage, it proved particularly hard to conceptual-
                     ize moral damage (dommage moral/non-pecuniary damage).

                        75. This latter became the object of endless discussions (ever since the
                     first codifications), given the resistance of some doctrinal trends to attri-
                     bute a value or price to the suffering of the victims (pretium doloris). The
                     prolonged construction of the theory of the responsabilité civile was made
                     possible, however, by the recourse to general criteria, such as, e.g., the
                     gravity of the breach, the intensity of the suffering it generated, the social
                     repercussion of the breach, the consequences for the victim and the inten-
                     tionality and culpa of the perpetrator.
                        76. The moral character of the damage was regarded as an infringe-
                     ment of the human personality, not only in what is most intimate to it but
                     also in the human relations in its social milieu. It was against such dam-
                     age that the legal system reacted, requiring reparation to the victim, so as
                     to preserve the integrity of the human personality of the victim. Hence
                     the conception of responsabilité civile, emanating from the immemorial
                     general principle of neminem laedere. Such juridical construction was
                     transposed from domestic law into international law, by means of private
                     law analogies 95 (mainly of civil law). They were thereby heavily marked
                     by a patrimonial content and interest (what can be explained by their
                     origin). Hence their conceptualization, in civil law and also in common

                        94 Cf., inter alia, e.g., P. Tavernier, “La contribution de la jurisprudence de la Cour

                     européenne des droits de l’homme relative au droit de la responsabilité internationale en
                     matière de réparation — une remise en cause nécessaire”, 72 Revue trimestrielle des droits
                     de l’homme (2007), pp. 945‑966.
                        95 E.g., the concepts of material and moral damages, the elements of damnum emergens

                     and lucrum cessans, among others.

                     56

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                     law countries, as “non‑pecuniary damage” 96. The point of reference was
                     patrimonial or financial.

                        77. The simple transposition of such concepts to international law level
                     was bound to raise uncertainties. Yet, at least it did not pass unnoticed, in
                     the debates on the matter going back to the nineteenth century, that con-
                     sideration of moral damages inevitably turns attention to human suffer-
                     ing 97, proper to human beings rather than to States. In fact, States do not
                     suffer ; not seldom, they tend to inflict suffering upon human beings under
                     their respective jurisdictions or elsewhere. The importance of moral dam-
                     ages became manifest in face of the need of protection of individuals 98.

                        78. The analogies with solutions proper to common law or to civil law
                     (droit civil) have never appeared convincing or satisfactory to me, as, by
                     focusing — for the purpose of reparation — on the relationship of the
                     human person with material goods, they marginalized the most important
                     trait in the human person, as a spiritual being 99. Moral damages should
                     not be reduced to a consideration of material goods, patrimony, capacity
                     for work, and the projection of these elements in time — as upheld by the
                     regrettable cosmovision of the homo oeconomicus so widespread in our
                     times. It was necessary to wait for the advent of the international law of
                     human rights, in order to go beyond these short‑minded categories, and
                     look also into the human person’s aspirations, freedom and integrity.

                        79. Juridical concepts, encompassing values, are the product of their
                     time, and are open to progressive development. With the formation of the
                     corpus juris of the international law of human rights, it became clearer
                     that the determination of reparations should keep in mind the integrality
                     of the personality of the victim, should consider the impact on this latter
                     of the violation of the rights inherent to her, should approach the matter
                     from an integral, rather than patrimonial or financial outlook, with spe-
                     cial attention to the aspirations, personal freedom and integrity of the
                     individual victim. Hence the importance of restitutio in integrum (not
                         96 For comparative law surveys, cf., e.g., [Various Authors], Damages for Non-

                     Pecuniary Loss in a Comparative Perspective (ed. W. V. Horton Rogers), Vienna,
                     Springer-Verlag, 2001, pp. 1‑311 ; [Various Authors], Redress for Non-Material Damage/
                      Réparation du préjudice moral (London Colloquy of 1969), Strasbourg, Council of
                      Europe, 1970, pp. 4‑127.
                         97 Cf. R. André and A. Smedts, La réparation du dommage moral, Anvers, Impr.

                     Dugardin & Persoons, [1951], pp. 6, 17 and 125, and cf. p. 10.
                         98 L. Reitzer, La réparation comme conséquence de l´acte illicite…, op. cit. supra

                     note 45, p. 124.
                         99 In this respect, the 1948 American Declaration on the Rights and Duties of Man

                     states, in its fourth preambular paragraph that : “Inasmuch as spiritual development is the
                     supreme end of human existence and the highest expression thereof, it is the duty of man
                     to serve that end with all his strength and resources.”

                     57

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                     always possible), given the manifest insufficiencies of indemnizations (for
                     material damage).

                         80. On the basis of my own experience as magistrate serving succes-
                     sively two international jurisdictions, that of the IACtHR and then of the
                     ICJ, I attribute particular importance to reparations for moral damages.
                     In some cases of particular gravity, I dare to say that they prove to be
                     even more significant or meaningful to the victims than those for pecu
                     niary damages, or indemnizations. The granting of reparations for
                     moral damages, by international human rights tribunals, has been made
                     feasible by their recourse to considerations of equity. Given the prolonga
                      tion of the proceedings of the cas d’espèce opposing Guinea to the Demo-
                      cratic Republic of the Congo, in the merits as well as the reparations
                      stages (suggesting that the time of human justice is not the time of
                      human beings), I have felt obliged to draw attention, in my declaration
                      (I.C.J. Reports 2011 (II), pp. 637-639, paras. 1‑4) appended to the Court’s
                      Order of 20 September 2011 in the present Diallo case, to the relevance
                      of the award of reparations within a reasonable time (as justice delayed is
                      justice denied), as well as to the considerations of equity to bear in mind
                      for the determination of reparations (mainly for moral damages).

                              IX. The Relevance of the Rehabilitation of Victims

                        81. The reparatio for damages comprises distinct forms of compensa-
                     tion to the victims for the harm they suffered, at the same time that it
                     re‑establishes the legal order broken by wrongful acts (or omissions) — a
                     legal order erected on the basis of the full respect for the rights inherent
                     to the human person. The observance of human rights is the substratum
                     of the legal order itself. The legal order, thus re‑established, requires the
                     guarantee of non‑repetition of the harmful acts. The realization of justice
                     thereby achieved (an imperative of jus cogens) is in itself a form of repara-
                     tion (satisfaction) to the victims. Such reparatio does not put an end to
                     the suffering ensuing from the human rights violations already perpe-
                     trated, but, in ceasing the effects of those breaches, it at least alleviates the
                     suffering of the individual victims (as titulaires of the right to reparation),
                     by removing the indifference of the social milieu, the oblivion of the vic-
                     tims and the impunity of the perpetrators.
                        82. In this framework, the rehabilitation of the victims is of the utmost
                     importance. It is a matter of not only re‑establishing the legal order
                     broken by wrongful acts (or omissions), but also of seeking to rehabilitate
                      the victims themselves of such wrongs, as subjects or titulaires of the rights
                      recognized therein that have been breached. After all, the individual vic-
                      tims (and not the States) occupy a central position in the framework of
                      the international law of human rights, oriented towards them — which is

                     58

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                     a law of protection (droit de protection). By granting the individual vic-
                     tims jus standi, or else locus standi in judicio, in this domain of protection
                     at international level, the international law of human rights has rescued
                     the central position occupied therein by the victimized 100 (even in situa-
                     tions of great vulnerability, if not defencelessness), and has thereby
                     asserted the (active) international subjectivity of individuals in the law of
                     nations (droit des gens) at large.

                        83. The centrality of the victims in the present domain of protection
                     draws attention to the pressing need of their rehabilitation — to be con-
                     sidered as from the integrality of the personality of the victims 101 — in
                     the framework of restorative justice. The rehabilitation of the victims
                     projects itself into their social milieu. It has both individual and social
                     dimensions. Restorative justice has made great advances in the last
                     decades, due to the evolution of the international law of human rights,
                     humanizing the law of nations (the droit des gens). Such advances are now
                     being felt, though in a lesser degree but a reassuring one, also in the
                     domain of international humanitarian law and of contemporary interna-
                     tional criminal law. The universal juridical conscience seems to be at last
                     awakening as to the need to honour the victims of human rights abuses
                     and to restore their dignity.

                        84. Rehabilitation of the victims acquires a crucial importance in cases
                     of grave violations of their right to personal integrity. In effect, there have
                     been cases where medical and psychological assistance to the victims has
                     been ordered — mainly by the IACtHR — as a form of reparation, aim-
                     ing at their rehabilitation 102. Such measures have intended to overcome
                     the extreme vulnerability of victims, and to restore their identity and
                     integrity. Rehabilitation of the victims mitigates their suffering and that
                     of their next of kin, thus irradiating itself into their social milieu.
                        85. Rehabilitation, discarding the apparent indifference of their social
                     milieu, helps the victims to recuperate their self‑esteem and their capacity
                     to live in harmony with others. Rehabilitation nourishes the victims’ hope
                     in a minimum of social justice 103. Rehabilitation helps to restructure the
                     psyche of the victims, in their difficult quest for recovery from the injus-
                     tice of humiliation. Rehabilitation as a form of reparation is intended
                     to reorder ultimately the human relations disrupted by acts of cruelty,

                        100 To this effect, IACtHR, case Castillo Petruzzi and Others v. Peru (preliminary

                     objections, judgment of 4 September 1998), concurring opinion of Judge Cançado Trin-
                     dade, paras. 5 and 12 ; IACtHR, case Tibi v. Ecuador (merits and reparations, judgment
                     of 7 September 2004), separate opinion of Judge Cançado Trindade, paras. 16 and 18‑20.
                        101 A. A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos,

                     Vol. III, Porto Alegre/Brazil, S.A. Fabris Ed., 2003, p. 442.
                        102 A. A. Cançado Trindade, El Ejercicio de la Función Judicial Internacional ..., op. cit.

                     supra note 82, pp. 329‑330.
                        103 Ibid., pp. 330‑332.

                     59

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                     in breach of human rights. In sum, rehabilitation restores one’s faith in
                     human justice.

                                         X. Epilogue : Concluding Reflections

                        86. As we have seen in the present separate opinion, reparation and its
                     rationale, in the light of the basic principle of neminem laedere, are
                     deeply‑rooted in international legal thinking, going back in time to the
                     early beginnings of the law of nations (the droit des gens). Consideration
                     of the subject‑matter marked presence, as I have pointed out 104, in the
                     writings of de Vitoria, H. Grotius, S. Pufendorf and C. Wolff (as well as
                     in those of A. Gentili, F. Suárez and C. van Bynkershoek), from the six-
                     teenth to the eighteenth centuries. Concern to secure reparations for dam‑
                     ages done to the human person was present therein, and in a way even
                     antedated their writings, going far back to the fifteenth century, when the
                     term “person” (meaning the physical or moral person) had then been con-
                     ceptualized 105, as referring to the subject of rights.
                        87. By then — and certainly by the following time of the insights of de
                     Vitoria in the early sixteenth century, and of Suárez and Grotius in the
                     early seventeenth century (followed by those of Pufendorf in the late
                     seventeenth century, and of Wolff in the eighteenth century) — it had been
                      understood that the human person “embodied” humanity, and a damage
                      done to him/her was a wrong, which required reparation. The reductionist
                      outlook which followed (starting with Vattel in the mid‑eighteenth cen-
                     tury) of an international legal order conformed in pursuance of a strict
                     inter-State conception (in the light of distinct trend of legal positivism) —
                     with individuals subjected to their respective States, as upheld mainly by
                     Hegelian legal philosophy, as from the early nineteenth century, with its
                     personification of the all-powerful sovereign State — with the disastrous
                     consequences which followed, was incapable of removing the human per-
                     son from the framework of the law of nations, as originally conceived.

                         88. As a matter of fact, even at the dark time when absolute State
                     s overeignty (devoid of any precise meaning) came to be invoked, also in
                      the ambit of the relations between States and individuals, to attempt to
                      justify, and to cover‑up, grave abuses against these latter, there were
                      those who raised their voices to unmask such deception. Examination of
                      this particular point lies beyond the purposes of the present separate

                          104
                            Cf. Section III, paras. 14‑21, supra.
                          105
                            In ancient times, it may be recalled, the term person (the Etruscan phersu, the Greek
                     prôsopon, the Latin persona) meant the mask, in theatrical representation ; later on, it came
                     to refer to the character (personnage), paving the way for the medieval sense of “person”
                     (the human person), meaning, from the fifteenth century onwards, the physical or moral
                     person, as subject of rights.

                     60

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                     opinion. Suffice it here only to recall that, in the early twentieth century,
                     Léon Duguit, in his philosophical construction of the “solidarisme de la
                     liberté”, outlining State obligations vis-à-vis the human person (individu-
                     ally or in groups), denounced the gross abuses perpetrated in the name of
                     State sovereignty as unwarranted tyrannical oppression 106.

                        89. Throughout the twentieth century, despite so many abuses and
                     successive atrocities victimizing millions of individuals, a trend of human-
                     ist thinking flourished, in the writings of Emmanuel Mounier (1905‑1950)
                     and Gabriel Marcel (1889‑1973), asserting the juridical “personalism”,
                     aiming at doing justice to the individuality of the human person, to her
                     inner life and the need for transcendence (on the basis of her own experi-
                     ence of life). In a world of violence amidst the misuses of language, there
                     were, thus, also those who succeeded in preserving their lucidity. This and
                     other precious trends of humanist thinking, almost forgotten (surely by
                     the legal profession) in our hectic days, can, in my view, still shed much
                     light towards further development of reparations for moral damages done
                     to the human person.
                        90. Such reparations for moral damages 107 should not be limited
                     always to awards of reparations on a pecuniary basis only ; there are
                     times, depending on the circumstances of the cases, when they call for
                     other forms of (non‑pecuniary) reparations (obligations of doing, such as
                     satisfaction and rehabilitation of the victims). Be that as it may, I dare
                     to nourish the hope that the day will come when it is properly learned and
                     well‑established that the State’s duty to provide reparations for damages
                     it did to individuals is an ineluctable and indispensable one : it cannot, in
                     my understanding, be evaded by an unacceptable, unethical and
                     unfounded invocation of State sovereignty or of State immunity 108.

                        91. Another lesson we can extract from the present case, unprecedented
                     in this Court’s history, is that the determination of reparations for human
                     rights breaches is not a matter of legal technique only, as the incidence of
                     considerations of equity fully demonstrates. In this respect, also in the
                     previous Judgment of the Court (on the merits, of 30 November 2010) in
                     the present Diallo case, I pointed out, in my separate opinion thereon,
                     that the individual concerned is the subject of the right to reparation
                     and its ultimate beneficiary (I.C.J. Reports 2010 (II), pp. 797-801,
                     paras. 200‑212), beyond the inter-State dimension (ibid., pp. 802-805,
                     paras. 213‑221).

                        106 He did so, e.g., in his lucid and thoughtful lectures of 1920‑1921, as Visiting

                     Professor at Columbia University ; cf. Léon Duguit, Souveraineté et liberté [1920‑1921],
                     Paris, Ed. La Mémoire du droit, 2002 [reed.], pp. 126‑127, 132-134, 150‑151 and 202.
                          107Cf. Section VIII, paras. 74‑80, supra.
                          108Cf., in this sense : case of Jurisdictional Immunities of the State (Germany v.
                     Italy : Greece intervening), Judgment, I.C.J. Reports 2012 (I), dissenting opinion of
                     Judge Cançado Trindade, pp. 181-290, paras. 1‑316.

                     61

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                        92. As the Court stated in that Judgment on the merits of 30 Novem-
                     ber 2010, the cas d’espèce concerns breaches of human rights treaties
                     (cf. supra). And as I pondered in my earlier separate opinion appended to
                     that Judgment on the merits, the hermeneutics of human rights treaties
                     has put limits to the excesses of State voluntarism (I.C.J. Reports 2010
                     (II), pp. 755-758, paras. 82‑88) ; it has done so in pursuance of the prin-
                     ciple pro persona humana (ibid., pp. 758-759, paras. 89‑92). In a larger
                     horizon, one is here guided by the principle of humanity (ibid., pp. 759-
                     762, paras. 93‑105), in conformity with the necessary law of the societas
                     gentium, regulating relations in the international community constituted
                     by human beings socially organized in States and co‑extensive with
                     humankind (ibid., pp. 762-763, para. 106).
                        93. As I deemed it fit to add in the aforementioned separate opinion,
                     that necessary law of the societas gentium has — pursuant to natural law
                     thinking — “prevailed over the will of individual States”, thus remaining

                          “respectful of the human person, to the benefit of the common
                          good 109. The precious legacy of natural law thinking, evoking the
                          natural law of the right human reason (recta ratio), has never faded
                          away, and this should be stressed time and time again (. . .).” (Ibid.).
                     Furthermore, the old monopoly of States of the titularity of rights at
                     international level can no longer be sustained.
                        94. The reasserted presence — and a central one — of the individual in
                     the framework of the law of nations has much contributed, as I have
                     sought to demonstrate in the present separate opinion, to the more recent
                     progressive development of international law in respect of reparations for
                     damages ensuing from violations of human rights. With the rescue of the
                     individual as subject of the contemporary jus gentium, the centrality of
                     victims in the international protection of human rights is nowadays
                     well-established and beyond question. In the present domain of protec-
                     tion, reparations are due to individual victims, and not to States. The
                     victim‑centred outlook has entailed implications for the reparations due,
                     has clarified their forms, has fostered the progressive development of
                     international law in the present domain.

                       95. The international subjectivity of individuals has had this additional
                     beneficial impact upon contemporary jus gentium. The contribution of the
                     case law of the international tribunals of human rights (the IACtHR and
                     the ECHR) bears witness of this. The centrality of victims singles out, in
                     particular, as we have just seen, the relevance, in particular, of reparation
                     of moral damage to individuals, so as to alleviate their suffering, as well
                     as of the rehabilitation of victims. The realization of justice is of key
                     importance to the victims, and belongs, in my understanding, to the

                        109 A. A. Cançado Trindade, A Humanização do Direito Internacional, Belo Horizonte/

                     Brazil, Edit. Del Rey, 2006, pp. 9‑14, 172, 318‑319, 393 and 408.

                     62

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                     383 	    ahmadou sadio diallo (sep. op. cançado trindade)

                     domain of jus cogens. Without it, the right of access to justice lato sensu,
                     there is no legal system at all.
                        96. The jurisprudential and doctrinal developments that I have cared,
                     and felt obliged, to examine in the present separate opinion, have been
                     made possible in the light of the recognition that the victims, subjects of
                     the right to reparation, are the ones who actually suffered the damage —
                     human beings of flesh and bone, and not their States. It is, furthermore,
                     not to be forgotten that the legal construction on the matter, existing
                     today in international law (but still in its infancy), was transposed to it
                     from the secular experience gathered earlier in domestic legal systems ; the
                     recent contribution of international human rights tribunals (the IACtHR
                     and the ECHR) sheds new light into it (cf. supra), and develops the apti-
                     tude on international law to regulate relations in circumstances such as
                     those of the present Diallo case. The traditional and strict inter‑State
                     dimension is of little use, if any, here.

                        97. Furthermore, in modern times, since the dawn of State responsibil-
                     ity, it has become clear that the breach of international law and the com-
                     pliance with the duty of reparation for damages form an indissoluble
                     whole, which cannot at all be disrupted by undue and irresponsible invo-
                     cations of State sovereignty or State immunity. The obligation to provide
                     reparation of damages stands as a fundamental one, rather than as a “sec-
                     ondary” one. It is an imperative of justice.
                        98. The resurgence of individuals as subjects of the law of nations (the
                     new jus gentium) has entailed other consequences, in addition to that on
                     reparations for damages resulting from human rights violations (supra),
                     and related to this latter. It has, for example, called for a reassessment of
                     issues pertaining to international legal procedure. This has been recently
                     reckoned by this Court itself, in its most recent Advisory Opinion
                     (of 1 February 2012) on Judgment No. 2867 of the Administrative Tribunal
                     of the International Labour Organization upon a Complaint Filed against
                     the International Fund for Agricultural Development. In my separate opin-
                     ion appended thereto, I sustained that the international legal personality
                     (and capacity) of individuals, requiring the observance of the basic prin-
                     ciple of procedural equality (equality of arms/égalité des armes), corre-
                     sponds to a necessity of the international legal order itself in our days
                     (I.C.J. Reports 2012 (I), pp. 52-93, paras. 1‑118).
                        99. Last but not least, I come back to my initial point. Bearing in mind
                     that in the present case the damages were done to an individual
                     (Mr. A. S. Diallo) and not to a State, there is one precision that I deem it
                     fit to make at this final stage in this separate opinion. In the dispositif of
                     the present Judgment, the Court fixes the amount of compensation for
                     non‑material as well as material damage “suffered by Mr. Diallo” (resolu-
                     tory points (1) and (2)). I have concurred with the Court majority’s deci-
                     sion as to a larger amount of compensation for non‑material damage,
                     given the particular importance that I attach to reparation for moral
                     damages (cf. supra).

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6 CIJ1032.indb 122                                                                                26/11/13 09:37

                     384 	    ahmadou sadio diallo (sep. op. cançado trindade)

                        100. Although the amounts of compensation are formally due from
                     the Democratic Republic of the Congo (as respondent State in the cas
                     d’espèce) to Guinea (as complainant State in the present case), the ulti-
                     mate subject (titulaire) of the right to reparation and its beneficiary is
                     Mr. A. S. Diallo, the individual who suffered the damages. The amounts
                     of compensation have been determined by the Court to his benefit. This is
                     the proper meaning, as I perceive it, of resolutory points (1) and (2) of the
                     dispositif of the present Judgment, in combination with paragraph 57 of
                     the reasoning of the Court.
                        101. This understanding is well in accordance with the basic postulates
                     of the international law of human rights (the applicable law in the present
                     case), and bears witness of the international legal personality of the indi-
                     vidual as subject of contemporary international law. This is clearly so,
                     even if, out of a surpassed dogmatism, individuals remain deprived of
                     their international legal capacity, of their locus standi in judicio, that
                     would otherwise have enabled them — as it should happen, in the light of
                     all the aforementioned — to appear directly in legal proceedings before
                     this Court.

                                            (Signed) Antônio Augusto Cançado Trindade.

                     64

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