The ICJ Rolls On (Like Molasses)

by Julian Ku

The ICJ is hearing oral arguments this week in a long-running case between Rwanda and the Democratic Republic of Congo. Congo is alleging that Rwanda is responsible for the deaths of some 3.5 million Congolese who have died during Congo’s civil wars because of Rwanda’s intervention in that civil war. Congo is asking for an order from the ICJ requiring Rwanda to desist from its intervention and to pay compensation.

The law and facts here are pretty messy, although Congo’s attempt to fix all of the responsibility for its problems on Rwanda seems dubious. Still, it is remarkable that a case of this sort has been brought to the ICJ. And it is even more remarkable that the ICJ has made no special effort to resolve the case expeditiously. Yes, I’m beating a dead horse here, but the ICJ simply cannot be an effective tribunal if it cannot speed up its consideration of cases. This week, the ICJ is considering only the jurisdiction and admissibility of the case (along with a new request for provisional measures by Congo). The written briefs on this portion of the case were filed in January 2003. No explanation is provided by the ICJ for why it waited two and a half years (July 2005) to hold hearings on those written pleadings. As far as I can tell, neither Congo nor Rwanda asked to suspend the case during that time.

The best case scenario for Congo: In about six months, Congo will win a decision from the ICJ granting them a provisional measures order and a decision to retain jurisdiction over the case. Congo can then go ahead and file their case on the merits, for which it can expect to wait another three years or so (or longer, because the factual issues will take more time to consider next time). So, maybe by July 2008, just in time for the Beijing Olympics?

One hopes the ICJ is simply inefficient and that its justices are lazy. Or it may be that the ICJ simply doesn’t care a whole lot about the Africa cases, which is why it was willing to move faster in cases against the U.S. and Israel. Either way, its (slow) downward spiral into irrelevance continues.

3 Responses

  1. Dear Julian,
    In your rallying against the ICJ, you are consistently disregarding the specific features of ICJ proceedings. ICJ jurisdiction depends on the consent of States. States can also influence the pace of the proceedings. For example, in the other Congo case, Congo and Uganda put their requests on hold a weekend before the oral proceedings were set to begin. In the Rwanda case, jurisdiction is more than dubious.
    Conservatives should love the ICJ. No jurisdictional body is so much willing to accommodate States’ concerns and to defer to the consent of the parties. States do want to plead extensively before important decisions are taken. If the parties do not agree otherwise, the ICJ can be very quick. Not the least the US knows this quite well (see Breard, Avena, LaGrand).
    Best wishes,
    Andreas (Paulus, University of Munich)

  2. In decrying the lack of speed with which the ICJ Julian assumes that the slow pace is the fault of the ICJ or something that States do not like. He points out that neither Congo nor Rwanda asked the ICJ to postpone. Perhaps it is more important to note that it does not appear that either Congo or Rwanda asked the Court to speed up consideration!

    As has already been pointed out, when States want the ICJ to move swiftly the Court has shown that it can do so. The Avena Case (2003) took 14 months from start to finish (filing of Application to Judgment on the merits). The Arrest Warrant Case (2002) took 16 months (filing of Application to Judgment on the merits). It took the Court 9 months (from filing of the Application)to decide that it didn’t have jurisdiction in the Pakistan/India Aerial Incident case (2000). That case was decided in less than a year from the time when the incident in question took place.

    It is telling that though Art. 29 of the Statute of the ICJ requires the Court to establish a Chamber for Summary Procedure “with a view to the speedy dispatach of business” and that though the Court does this, that Chamber has NEVER been used. No state has referred a case to it (I think it was used once during the PCIJ era). Perhaps States do not want a speedy dispatch of business!

    Dapo Akande (University of Oxford)

  3. Those are both great comments. I recognize that ICJ jurisdiction depends on the consent of the states. But many international tribunals have the same framework and I’m sure they are just as deferential. But they are a lot faster and plow through many more cases a year than the ICJ does.

    I recognize that the states here may be as much to blame as the ICJ. But if the ICJ believes it should be relevant, it can move much faster than it does. Even Avena, which rocketed through the ICJ in record speed, took longer I think than was really necessary given the ICJ’s unbelievably light caseload.

    The Congo/Rwanda case is an odd one. If jurisdiction is dubious, as Andreas suggests, then why wait 2.5 years after the written pleadings are filed before holding public hearings? Why couldn’t those hearings have been held in the summer of 2003 instead, and a decision issued by the end of the year? What exactly were they waiting for? Why exactly does the ICJ feel it can only hold one set of public hearings every three months?

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