Making the ICCPR Cost: The ICJ's Diallo Judgment

By Craig Forcese

Cross-referencing: Ch. 9.

In November 2010, the International Court of Justice released its final judgment in the long-standing case of Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo)This case is best known for its earlier, 2007 ruling on diplomatic protection and exhaustion of local remedies, as well as diplomatic protection in relation to corporations.

In the 2010 final judgment, the ICJ found (unanimously) that the detention and expulsion of Guinean national Diallo violated, inter alia, the International Covenant on Civil and and Political Rights (specifically, articles 9 and 12) and concluded that Congo "is under obligation to make appropriate
reparation, in the form of compensation, to the Republic of Guinea for the injurious consequences
of the violations of international obligations".

The decision is less notable for its contribution to the substantive understanding of these ICCPR rights than for its very existence: typically, compliance with ICCPR rights in a individual case is assessed, if at all, by the UN Human Rights Committee, pursuant to the first Optional Protocol of the ICCPR.  The HRC is empowered to, at best, issue "views", of limited legal significance.

At least in principle, a decision of the ICJ is on a different legal footing: a decision in a contentious case between states at the ICJ is binding on those parties.  Whether states will comply is a different question -- the ICJ has no baliff -- but there can be little dispute that a state's failure to do so in an infraction of its international legal obligations.  Of particular note is Art. 94 of the UN Charter:

  1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

  2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.

In the result, Diallo represents one of the few instances where non-compliance with the ICCPR has produced a binding ruling on compensation by an international tribunal.  It is also one of the few instances where one state has seen fit to take another state to task for its failures under the ICCPR to the point of adjudicating the matter before an international tribunal.