IMMUNITY FROM JURISDICTION

The Pinochet Case

On Friday 16 October 1998, General Augusto Pinochet Ugarte, Chilean senator and
ex-president, was arrested in London at a private clinic where he was recuperating
from surgery. The provisional warrant for his arrest, signed by metropolitan magistrate
Nicholas Evans on behalf of Spanish judge Baltasar Garzon, requested his extradition
to Spain under Section 8(l)b of the 1989 Extradition Act, alleging the murder of
Spanish nationals in Chile between II September 1973 and 31 December 1983. A
second warrant issued on 22 October accused Pinochet of torture, hostage-taking and
conspiracy to commit such crimes at various times between January 1976 and
December 1992. His arrest marked the start of a remarkable case which was fought
out for 17 months in the UK courts and which raised myriad issues, both legal and
political, of international significance. The case involved several hearings in the High
Court and three lords' rulings. The last of these, in deciding that Pinochet could be
extradited to Spain to answer charges for alleged crimes committed after 8 December
1988, set a precedent of critical importance for the future development of international
human rights law. In the event, however, Home Secretary Jack Straw chose to
exercise his substantial powers of discretion in applying extradition law and freed
Pinochet on the grounds that he was unfit to stand trial. On 3 March 2000 Pinochet left
the rented house in Surrey where he had remained on bail and under police guard
since December 1998 and was flown back to Santiago in a Chilean military jet. Hopes
expressed by his family and supporters that the matter would end there were
frustrated, however. Criminal charges filed against him in Chile before, during and after
his detention in the UK (numbering over 170 at the time of writing) are being
investigated. On 23 May 2000 the Santiago Court of Appeal voted in favour of a
petition to strip Pinochet of the immunity from criminal prosecution afforded him by his
self-appointed status as senator for life, and on 8 August this decision was upheld by
the Chilean Supreme Court.
Worldwide interest in the progress of the Pinochet case was intense and news
coverage extensive. It was immediately clear that the case had enormous potential
significance for the development and practice of international law. The House of Lords'
rulings of November 1998 and March 1999 were greeted by human rights
campaigners as a groundbreaking acknowledgment of the principle of universal
jurisdiction for crimes against humanity, and already the 'Pinochet effect' has led to the
issue of a number of international arrest warrants for other former heads of state or
suspected war criminals, including the former dictator of Chad, Hissene Habre, and
Rwandan war crimes suspect, Tharcisse Muvunyi. The fallout from the Pinochet case
has greatly increased pressure for the establishment of an international criminal court
to investigate and hear such cases, albeit in the context of continuing uncertainty
about precisely what the jurisdictional remit of such a court might be. The involvement
in the case of judicial actors from a number of different countries, and the very active
role of the Spanish judiciary in particular, has heightened debate over a phenomenon
known as the judicialisation' of politics, with national as well as international
manifestations.
In addition to its potentially far-reaching implications for the theory and practice of
international law the case raises issues of critical significance for a number of Latin
American countries apart from Chile. While the proceedings against Pinochet in the
UK courts since late 1998 attracted worldwide media interest, it is much less well
known (at least in the English-speaking world) that these proceedings have been only
one part of a much broader investigative process. Begun in Spain in 1996, this first
concerned the death, torture and disappearance of Spanish and non-Spanish
nationals under the 1970s military dictatorships of Argentina and Chile, but during the
course of the Pinochet affair it has expanded to encompass allegations and charges
against former military rulers and personnel in Bolivia, Paraguay and Guatemala.
Investigations have been assisted by the increased availability of documentary
evidence concerning human rights abuses in the Southern Cone since the discovery of
the so-called Terror Archive' in Asuncion, Paraguay, in 1992, as well as by new
revelations concerning the United States' involvement as the CIA opens its files (this a
direct result of the Spanish investigation). Widespread military impunity, largely
accepted as a condition of the re-establishment of civilian rule and formally democratic
institutions in many Latin American countries in recent years, is thus being challenged
in a new context, and this in turn must renew debate about the nature of, and
requirements for, the consolidation and legitimisa- tion of recendy-established
democratic regimes.
Scholarly treatments of the issues at play in the Pinochet affair are only beginning to
emerge, and given the significance of the issues there is clearly a need for
sustained and rigorous research. The present paper is in- tended to provide a
synthesis of events so far and some tentative pointers for further work. In form it is
divided into two parts. The first is an essay which attempts both to explain the origins
and progress of the Pinochet case and then to offer an initial, and brief, review of
some of the issues raised and their potential implications. The second part is in the
form of a detailed chronology of the case since Pinochet's arrest, compiled primarily
from press sources, but also drawing on scholarly research. This is intended to provide
both the factual detail and chronological narrative absent from the essay.
Part One: The case Origins and context in Spain
The Spanish criminal process against Pinochet was first set in motion on 4 July 1996,
more than two years before his arrest, when charges of genocide
and terrorism were filed in a Valencia court against him and three other members of
the military junta which ruled Chile after the overthrow of socialist President Salvador
Allende in 1973.1 The accusation was presented by Miguel Miravet Hombrados, head
prosecutor of the Superior Court of Valencia and president of the Progressive Union of
Prosecutors of Spain (Union Progresista de Fiscales; UPF). It was one result of a
collaboration between human rights activists, lawyers and victims of Chilean and
Argentine military repression which had begun some months previously and which
took as its example earlier attempts by Italian prosecutors to bring Argentine
repressors to justice abroad.2 Charges of genocide and terrorism had already been

filed in March 1996 by the UPF against a number of Argentine military leaders and
officers.3 On 10 June 1996 Judge Baltasar Garz6n Real of the Fifth Central Instructing
Court of Madrid's Audiencia Nacional (National Court) took on the Argentine case, and
on 28 June he ruled that the court had jurisdiction to investigate the charges and
prosecute those responsible. The following month Judge Manuel Garcia Castellon, of
the Sixth Central Instructing Court, accepted the Chilean case. The two cases thus
began separately, although they were later to be linked together.
The proceedings were facilitated by some particular features of the post-Franco legal
system. After the UPF's actions had begun the criminal proceedings, lawyers for the
victims involved took over the private prosecutions using a device called 'action
popular', which allows any Spanish citizen, whether an injured party or not, to file
charges in the public interest without cost and without (during the investigative stage)
the support of the public prosecutor.4 Chilean victims were further assisted by a 1958
Spanish-Chilean convention on dual citizenship that allows any Chilean national to file
charges in a Spanish court with the same rights as a Spanish national. The
prosecutions were also facilitated by the special character of the Audiencia Nacional, a
Madrid court set up in 1977 and vested under Spanish law with jurisdiction over a
number of international crimes.5 It is these provisions within Spanish law which have
allowed the lawyers and others involved to pursue the cases so determinedly despite
the opposition (though this was not manifested immediately) of the Spanish public
prosecutor.
a) Rationale for Spanish jurisdiction
An essential issue in the investigations has been whether Spain has jurisdiction over
crimes committed abroad by foreign military personnel against non-Spanish as well as
Spanish nationals. Originally the charges in both Argentine and Chilean complaints
related only to victims of Spanish nationality, but these were subsequently expanded
to include a much larger number of non-Spanish citizens so that the issue of universal
jurisdiction became central. During the course of the proceedings Garzon claimed
such jurisdiction in a series of rulings, but it was not until after Pinochet's arrest upon
the judge's orders that the arguments were fully tested in Spain's Audiencia Nacional,
in response to a challenge launched by the public prosecutor on 22 October 1998.
Spanish jurisdiction was upheld by the Audiencia Nacional in two unappealable
decisions, issued on 4 and 5 November 1998, relating to the Argentine and Chilean
prosecutions respectively. The basis on which the Audiencia Nacional upheld Spanish
jurisdiction was slightly different from that upon which Garzon had originally claimed
it.6 However, key to both was the finding that Spanish domestic law grants its courts
universal jurisdiction over offences 'committed by Spanish or foreign persons outside
national territory and capable of being proven under Spanish law', including, amongst
others, genocide, terrorism and 'any other [crime] which under international treaties or
conventions, should be pursued in Spain'.7
Garzon and the Audiencia Nacional also had to consider whether the crimes alleged
against Latin American military personnel fell within the definition of genocide,
terrorism and torture as provided by Spanish law. Similar issues were later to be
rehearsed repeatedly in the UK court proceedings, with Pinochet's lawyers contesting
Garzon's definition of these crimes in the context of Spanish, UK and international law.
The Spanish Audiencia National's initial reasoning, however, was clear and
straightforward. Since this reasoning will continue to have profound implications as
Spain continues to play an active role in investigations and prosecutions of Latin
American military personnel, it is worth summarizing here.
In respect of the crime of genocide, the public prosecutor argued that the repression
which occurred in Argentina and Chile was politically motivated and thus fell outside
Spanish law's definition of genocide, which could only be committed against a national,
ethnic, racial or religious group. The Audiencia Nacional, however, chose to take a
broad interpretation of the concept of 'national group' as 'simply a national human
group, a differentiated human group, characterized by something, integrated into a
larger collectivity'. It therefore found that since repression was targeted at a group
composed of citizens 'who did not correspond to the type pre-judged by the promoters
of the repression as necessary for the new order ... citizens who opposed the
understanding of the national identity, of the national values, sustained by the new
governors',8 the acts alleged did constitute genocide. In respect of terrorism, the major
objection mounted by the prosecutor was that the crimes alleged in connection with
the charge (kidnapping, injuring or murder of people) had not been committed by
people 'acting in service or collaborating with armed bands, organizations or groups',9
as Spanish law requires, since the state and its armed forces cannot be considered as
such. Garzon had disposed of this objection in earlier rulings by pointing out that it was
not the state itself, but individuals that were being charged with personal responsibility.
For its part, the Audiencia Nacional found that as the crimes alleged were
clandestinely committed by persons acting in a way characteristic of armed bands and
independently of any institutional functions held by them, the charge of terrorism was
applicable.10 The crime of torture, though included by Garzon in his charges, was
subsumed within the crimes of genocide and terrorism and thus did not form a major
basis of his claim for jurisdiction, although it was used by Garcia Castellon as one of
the grounds for jurisdiction in the Chilean case. The issue is complicated because the
crime was only incorporated into Spanish law in 1978, and the Torture Convention was
not ratified by Spain until October 1987. However, neither Garcia Castellon nor the
Audiencia Nacional sought to establish the effective date from which Spanish
jurisdiction over torture could be claimed, and the Audiencia Nacional, in its ruling,
simply stated that as torture formed part of the larger crimes of genocide and
terrorism, over which jurisdiction had already been established, there was no need to
consider it in detail.
The rulings of the Audiencia Nacional also disposed of the prosecutors' objection that
the offences alleged could not be tried in Spain because they were already being
adjudicated by other courts or had been pardoned. Key here was the court's rejection
of domestic amnesties in Chile and Argentina as a bar to prosecution in Spain, made
on the grounds that those amnesties violated international human rights treaties and
norms, and 'de-penalized' the conduct complained of." In respect of Chile, the court
noted that in the cases that the prosecutor claimed had already been dealt with by the
Chilean courts, the 1978 amnesty law had been applied, and therefore these cases

could not be considered to have been adjudicated in Chile.

b) Organization and scope of the investigations
Since the initiation of the cases in 1996 an enormous body of evidence and testimony
has been amassed and a large number of individuals and organisations have been
involved. The most important of the latter are the Salvador Allende Foundation,
directed by Joan Garces, a Madrid lawyer and former Allende aide, which coordinates
the Chilean action, and the Human Rights Secretariat of the Spanish left wing political
party Izquierda Unida (IU United Left), coordinator of the Argentine litigation.
Additionally a number of human rights NGOs in various countries have provided
assistance, including inter alia the Spanish Section of Amnesty International (AI),
Servicio de Paz y Justicia (SERPAJ Peace and Justice Service) which operates in
both Chile and Argentina, and the Chilean Corporacion de Promotion y Defensa de
Derechos del Pueblo (CODEPU Corporation for the Promotion and Defence of
People's Rights). The very high media profile that the Spanish litigation has enjoyed in
Latin America and Spain helped to publicize and broaden the investigations and
encouraged witnesses to come forward.12 Hundreds of people, including survivors of
the repression, relatives of victims, politicians and ex-military have testified before
Garzon's and Garcia Castellon's courts, and a very large volume of documentation,
some of it previously filed with Argentine courts, has been transferred to Garzon's. In
scope and scale, the Spanish investigation is the most comprehensive to have taken
place to date into the human rights abuses of the Southern Cone military regimes.
There is no room here to detail the evidence on which the charges against Pinochet
and others are based, but it is perhaps useful to give a brief indication of its nature and
extent. In both the Argentine and Chilean prosecutions, extensive use was made by
the Spanish lawyers of the findings of those two countries' truth commissions. In Chile,
the Comision Nacional de Verdad y Reconciliation (National Commission for Truth and
Reconciliation) and its successor the Corporacion Nacional de Reparation y
Reconciliation (National Commission for Reparation and Reconciliation) had
documented the deaths of 3,197 individuals during the Pinochet dictatorship.13 In
Argentina the report of the Comision Na- cional sobre la Desaparicion de Personas
(National Commission on the Disappearance of Persons CONADEP), entided
Nunca Mas (Never Again), investigated and confirmed the disappearance of almost
9,000 people during the period of military rule.14 Many of these cases were taken up
or amplified by the Spanish investigations. The Spanish judges also heard a large
volume of new or additional testimony. Particularly sig- nificant were the statements
given by ex-military personnel themselves, such as that of retired Argentine Navy
Captain Adolfo Scilingo, who gave evidence before Garzon in late 1997,15 of retired
Chilean General Joaquin Lagos Osorio, who offered earlier testimony given in Chile to
the Spanish inquiry,16 and of retired Chilean General Sergio Poblete Garces, who
came forward to testify in the Spanish proceedings in early 1998.17 The defec- tion of
senior military personnel from the conspiracy of silence sur- rounding human rights
crimes, and their incrimination of superiors, including Pinochet, made an important
contribution to the evidence, cor- roborating that already offered by victims and other
witnesses.
Particularly critical to the case against Pinochet was evidence amassed by Garzon in
relation to a number of murders committed in the 1970s outside Chile but believed to
have been organised by the Chilean Direc- tion de Inteligencia Nacional (DINA,
Directorate of National Intelli- gence) in its capacity as coordinator of 'Operation
Condor*. Although Garzon was originally investigating the Argentine case, his interest
in Operation Condor had the effect of broadening his remit considerably, and was the
reason why it was he, rather than Garcia Castellon, who is- sued the October 1998
arrest warrants for the Chilean ex-dictator. Op- eration Condor was an intelligencesharing operation organised by the DINA as a way for the military regimes of
Argentina, Chile, Uruguay, Paraguay and, to a lesser extent, Brazil, Bolivia and Peru,
to collect and xchange information on suspected subversives or leftists. It also involved cooperation and mutual aid in the execution of repression fu- gitives from
one country could be captured in another, and either handed back or tortured, killed or
'disappeared' where they were, while special task forces could be despatched to
countries party to the agree- ment to eliminate opposition politicians or suspected
subversives. The discovery in Asuncion, Paraguay, in 1992 of the Terror Archive'
some two tonnes of documents relating to the detention and treatment of political
prisoners and including intelligence memoranda and reports on multi-lateral 'security
conferences' has greatly assisted attempts to prove the existence of Operation
Condor and investigate its crimes.18 Garzon's investigation of Operation Condor led
him to visit the archive in early 1998 and also eventually to take over the investigation
of the Chilean case from Garcia Castellon on 20 October 1998.
One atrocity in particular was vital in turning up evidence linking Pi- nochet directly to
Operation Condor. This was the murder of former Chilean ambassador Orlando
Letelier and his US associate Ronni Moffitt in a 1976 car bombing in Washington. The
case had already been tried in Chile, a special exception to the 1978 amnesty law
having been granted under US pressure, and had resulted in the imprisonment of
Manuel Contreras, former head of the DINA, for his part in ordering the assassinations. In 1997, seeking his release from prison, Contreras testified to the Chilean
Supreme Court that he had only retained his position as DINA chief by direct
delegation from Pinochet himself and furthermore that he had always taken orders
directly from Pinochet, who had full knowledge of the DINA's operations. A summary of
this testimony was in- cluded by Garzon in his criminal indictment of Pinochet and
forms a cru- cial plank of the evidence implicating him personally in the crimes of
which he is accused. Contreras's assertions were also corroborated by tes- timony
given before Garzon by Lawrence Barcella, former federal prose- cutor of the District
of Columbia. Increasingly, testimony and documentation from the United States has
formed a valuable evidentiary element in the proceedings against Pinochet and others,
and its increased availability is itself a result of the Spanish investigations. Garcia
Castellon travelled to the United States to hear evidence and the Spanish judges also
submitted requests to the US government which have resulted in the
declassification of a large number of CIA and State Department docu- ments. Some
7,500 documents have been released so far, confirming much of what was already
suspected about the extent of CIA and US in- volvement in the preparation and
execution of the coup which ousted Al- lende, in assisting the DINA in setting up

interrogation and torture centres during the dictatorship and in the planning and
execution of other crimes, including some associated with Operation Condor.19 The
above gives only a very selective account of the scope and range of the Spanish
investigations, included here in order to place in a broader context the specific
allegations upon the basis of which Pinochet was arrested and charged. It must be
emphasised that the evidence col- lected during the course of the Spanish
proceedings provides ample grounds for charges to be made not only against
Pinochet but against hundreds of other people (mainly, but not exclusively, ex-military
per- sonnel) involved in human rights violations committed on the orders of the military
regimes of the Southern Cone. Some of the wider regional
implications of the investigations will be discussed later in this paper.
c) The arrest warrants against Pinochet
It will be evident from the foregoing that the case outlined in the Spanish order for
Pinochet's arrest in London had been painstakingly compiled and was not
opportunistically or hastily put together. However, Pinochet's visit to London provided
an opportunity to act which had to be seized quickly. Izquierda Unida, coordinator of
the popular action litigation in the Argen- tine case, upon learning of Pinochet's
presence in London, requested that Garzon's court submit a request for his
interrogation in relation to his role in Operation Condor and in connection with the
kidnapping and disap- pearance of named individuals. Simultaneously, the Agrupacion
de Famili- ares de Detenidos y Desaparecidos de Chile (Association of Families of the
Detained and Disappeared of Chile) asked that Pinochet and named associ- ates be
charged with genocide, terrorism and torture. Garzon accepted the requests, and on
16 October 1998 Pinochet was arrested on a provisional warrant signed by a London
magistrate on behalf of Garzon. This initial warrant seems to have been compiled in
haste, possibly to secure Pinochet's detention while fuller charges could be prepared,
and alleged the murders only of Spanish nationals in Chile between 1973 and 1983. It
was later ruled bad in law by the UK High Court, on the grounds that the murder of
Spanish nationals abroad was not an Extradition crime' under UK law. A second and
much fuller warrant issued by Garzon on 18 October expanded the charges to
encompass allegations of genocide, terrorism and torture of 94 people, including
individuals of Argentine, US and British nationality. All the 94 people named in the
second warrant had died or disappeared as a result of the activities of Operation
Condor or the DINA. In support of his order Garzon cited a number of international
legal norms, including, inter alia: the 1943 Moscow Declaration concerning crimes
against humanity; the 1945 Statute of the Nuremberg Tribunal; the 1948 UN
Convention Against Genocide; the 1984 UN Torture Convention; and the 1992
Declaration of the UN General Assembly on the forced disappearance of persons.
The case in the UK
The Spanish investigations into Chilean and Argentine military repres- sion had been
reported in the Chilean press long before Pinochet trav- elled to London in September
1998. Nevertheless, neither Pinochet nor the Chilean government appear seriously to
have countenanced the pos- sibility that he could be arrested during his trip.20
Travelling on a diplo- matic passport, he was accorded a diplomatic welcome upon his
arrival at Heathrow, and though forced by illness to curtail somewhat his usual London
activities, he still found time to visit his favourite museums and shops and to take tea
with Margaret Thatcher. On 25 September he was photographed for The New Yorker
at the Park Lane hotel where he was staying. Some two weeks later he underwent
surgery at a private clinic, and it was while he was recuperating that he was placed
under arrest.
Responses to his arrest were dramatic. Pro- and anti-Pinochet dem- onstrators made
their feelings known in both London and Santiago, human rights groups worldwide
were vociferous in calling for his trial, politicians of the British and Chilean right equally
so in demanding his swift release. France and Switzerland followed up the Spanish
action by issuing extradition warrants of their own. The Chilean centre-left Concertacion government under Christian Democrat President Eduardo Frei immediately
requested that Pinochet be freed, claiming that his passport afforded him diplomatic
immunity.21 This argument was quickly disposed of by the Foreign Office, which
pointed out that since Pinochet was neither a serving head of state nor an accredited
diplomat he had no automatic immunity from arrest. With the Labour govern- ment
insisting that the matter was purely judicial, not political, it became clear that there
would be no quick political solution and that the issues would have to be tested in
court. Pinochet engaged lawyers from the London firm Kingsley Napley to act on his
behalf and was moved to the Grovelands Priory Hospital in North London where he
was granted bail while he awaited the first hearing in the case. He could hardly have
ex- pected at this point that his detention would last 17 months.
a) Progress of the case: a summary of events
The tortuous progress of the case through the UK courts demonstrated the complex
interplay in English extradition law between judicial and executive power. It falls to the
Home Secretary to take the initial decision to begin ex- tradition proceedings in the
courts and, at the end of the court proceedings, to take the final decision on whether or
not to extradite. In taking these deci- sions the Home Secretary may consider grounds
for compassionate action, and at both stages his decision may be challenged by way
ofjudicial review. Legal rulings at every stage are, of course, appealable, and the
Pinochet case went to the highest court, the Appellate Committee of the House of
Lords, three times. However, the eventual decision to free Pinochet resulted from the
exercise of Jack Straw's discretionary powers and was clearly influenced by political,
as well as legal, considerations.
The second arrest warrant issued by London Magistrate Bartle on 22 October alleged
torture, hostage-taking and conspiracy to commit such crimes. The main issue
considered by the High Court in making the first ruling on the case, on 28 October
1998, was whether Pinochet was entitled to claim sovereign immunity from
prosecution or arrest for the crimes alleged. After a two-day hearing the court ruled
that Pinochet had immunity from prosecution and arrest on the grounds that the
Spanish charges related to acts performed in the exercise of his function as head of
state. Lord Bing- ham's judgement dismissed the arguments of the Crown Prosecution
Service (CPS, acting for Spain) that such heinous crimes could not be considered a

proper function of a head of state, going so far as to assert that there was nothing in
international law which could invalidate the principle that 'one sovereign state will not
impugn another in relation to its sovereign acts'. The 16 October warrant was
quashed, but the order to quash the second warrant was stayed pending appeal to the
law lords, in recognition of the importance of the case. During the time which elapsed
between this and the subsequent hearing, Garzon submitted his formal extradition
order, which in over 300 pages substantiated his allegations of genocide, terrorism and
torture and at- tributed to Pinochet responsibility for an international criminal
organisation which caused the deaths or disappearance of over 3,000 individuals.
The five law lords (Steyn, Lloyd, Slynn, Nicholls and Hoffman) who heard the appeal
between 4 and 12 November 1998 took a different view on the issue of immunity than
had the High Court. On 25 Novem- ber, Pinochet's 83rd birthday, they ruled by a 3:2
majority that he was not immune from prosecution because international law does not
recog- nise immunity for crimes such as torture and genocide, whether com- mitted as
head of state or otherwise.22 However, the lords' ruling was challenged by Pinochet's
lawyers on the grounds that one of the lords who had heard the appeal, Lord Hoffman,
had links with Amnesty International, which had intervened in the appeal. A new panel
of five law lords was convened to hear the petition from Pinochet's lawyers, which, in
an unprecedented move, unanimously set aside the original lords ruling. The lords
judged that Hoffman's position as an unpaid director of Amnesty International Charity
Ltd was an automatic disqualification to his sitting on the appeal panel.
The overturning of the 25 November lords'judgement resulted in the ap- peal having to
be reheard, this time before a larger panel of seven law lords. Chile and human rights
organisations were allowed to participate in the 12-day hearing in January 1999. In a
complex ruling delivered on 24 March, a six to one majority allowed the appeal,
judging that Pinochet could be extradited to Spain, but only in relation to crimes of
torture and conspiracy to torture com- mitted after 8 December 1988, the date by
which all three countries concerned, Spain, Chile and the UK, had ratified the
Convention Against Torture in their domestic law. This judgement reduced the number
of extraditable offences from 31 to three one of torture and two of conspiracy to
torture. Neverthe- less, Jack Straw issued a second authority to proceed with
extradition, and over the summer a preliminary hearing set 27 September as the date
for the start of extradition committal hearings.
In this space of time Judge Garzon added some 33 further charges to his original
extradition request, all concerning offences committed after 8 December 1988. When
the formal committal hearing began lawyers for Pinochet argued that these should not
be considered, however Ronald Bartle, the Bow Street magistrate in charge of the
committal proceedings, judged the extra charges admissible and in his ruling of 8
October com- mitted Pinochet to await Straw's final decision on extradition. The following week the Chilean government issued a formal request, accompanied by
medical reports, to the British authorities for Pinochet's release on humanitarian
grounds. In fact, the Chileans had decided some time before that their best hope of
securing Pinochet's release was on compassionate grounds. During the summer of
1999 a series of private meetings took place between the Chilean, Spanish and British
foreign ministers, Juan Gabriel Valdes, Abel Matutes and Robin Cook, respec- tively.
Although the Spanish and UK governments continued to insist that the judicial process
would be allowed to run its course, it is difficult to re- sist the conclusion that these
diplomatic contacts had a considerable im- pact on the way the case was handled
subsequently, setting the scene for the eventual freeing of Pinochet on compassionate
grounds.
A few weeks after Valdes had met both Matutes and Cook (separately) during a
summit in Rio de Janeiro in late June 1999, Chile proposed to Spain that the case be
resolved by some form of bilateral arbitration and at the same time sent to the UK
government medical reports which claimed that Pino- chet's health was declining.
Garzon and the Spanish left reacted angrily to the agreement by Jose Maria Aznar's
centre-right Partido Popular government to consider the arbitration route and it was
ultimately rejected as unviable.However, this was not the first or the last time that the
Spanish government, despite its public protestations of neutrality in the affair, sought
to frustrate Garzon's investigation.23 A few days before the 8 October ruling by
magistrate Bartle, two Spanish diplomats visited an official of the British CPS (which
acted for Spain in the legal proceedings). They told the CPS that Spain had not yet
decided whether or not to mount an appeal should the decision go against Pinochet,
thus appearing to countermand the instruction to appeal already given by Garzon. A
request for clarification from the CPS brought the affair out into the open and resulted
in the Spanish government issuing an unconvincing denial of any intention to sabotage
thejudicial process.
Almost as soon as Bartle's ruling had been delivered, Valdes an- nounced to the
Chilean press that henceforth he would concentrate on pressing the humanitarian
case for Pinochet's release (though informally such pressure had been mounting for
some months), and swiftly followed this up with his formal request of 14 October. No
doubt hoping for a fa- vourable response, Pinochet's lawyers delayed their decision to
appeal against Bartle's ruling as long as possible, while for its part the Spanish
government let it be known that it would not seek to appeal should Straw eventually
decide to release Pinochet on compassionate grounds (thus re- igniting a row over
judicial versus political responsibilities in Spain). Straw responded to the Chilean
petition by requesting on 5 November that Pi- nochet undergo independent medical
tests to determine whether his health was good enough to allow him to stand trial,
offering the ex- dictator (it emerged later) a promise that the findings of the
examinations would remain confidential. The tests were carried out on 5 January by a
team of five doctors appointed by Straw, and six days later, a few weeks before the
second round of Chilean presidential elections, Straw issued a statement saying that
he was 'minded' to halt the extradition proceedings on the grounds that Pinochet was
unfit to stand trial following deteriora- tion in his health. He did, however, grant
interested parties (principally human rights organisations and the Spanish
government) seven days in which to make representations before taking a final
decision.
Straw's decision to exercise discretionary power narrowed the options for those who
wished to see the ex-dictator extradited. Under UK law any final decision to refuse
extradition is subject to challenge by way ofjudicial review, which requires the
appellant to demonstrate that the Home Secretary has acted improperly or unfairly.

Representations from human rights organisa- tions and Garzon (the latter reluctantly
passed on by the Spanish govern- ment) therefore argued that by refusing to disclose
the medical report to interested parties Straw was flouting natural justice and
demanded that fresh medical tests be carried out. Garzon also argued that it ought to
have been
THE PINOCHET CASE
25 November 1998 House of Lords
FACTS
On 11 September 1973 General Augusto Pinochet Ugarte assumed power
in Chile after a military coup. He was appointed president of the Governing Junta the
same day. On 22 September the new regime was recognised by Her Majesty's
Government. By a decree dated 11 December 1974 General Pinochet assumed the
title of President of the Republic. In 1980 a new constitution came into force in Chile,
approved by a national referendum. It provided for executive power in Chile to be
exercised by the President of the Republic as head of state. Democratic elections
were held in December 1989. As a result, General Pinochet handed over power to
President Aylwin on 11 March 1990.
On 19 April 1978, while General Pinochet was still head of state, the
senate passed a decree granting an amnesty to all persons involved in criminal acts
(with certain exceptions) between 11 September 1973 and 10 March 1978. The
purpose of the amnesty was stated to be for the "general tranquillity, peace and order"
of the nation. After General Pinochet fell from power, the new democratic government
appointed a Commission for Truth and Reconciliation, thus foreshadowing the
appointment of a similar commission in South Africa. The Commission consisted of
eight civilians of varying political viewpoints under the chairmanship of Don Raul
Rettig. Their terms of reference were to investigate all violations of human rights
between 1973 and 1990, and to make recommendations. The Commission reported
on 9 February 1991.
In 1994 Senator Pinochet came to the United Kingdom on a special
diplomatic mission: (he had previously been appointed senator for life). He came again
in 1995 and 1997. According to the evidence of Professor Walters, a former foreign
minister and ambassador to the United Kingdom, Senator Pinochet was accorded
normal diplomatic courtesies. The Foreign Office was informed in advance of his visit
to London in September 1998, where at the age of 82 he has undergone an operation
at the London Clinic.
At 11.25 p.m. on 16 October he was arrested while still at the London
Clinic pursuant to a provisional warrant issued under section 8(1)(b) of the Extradition
Act 1989. On 17 October the Chilean Government protested. The protest was renewed
on 23 October. The purpose of the protest was to claim immunity from suit on behalf of
Senator Pinochet both as a visiting diplomat and as a former head of state, and to
request his immediate release. After all the events, Judge Garzon in Madrid issued a
second international warrant of arrest dated 18 October, alleging crimes of genocide
and terrorism. This in turn led to a second provisional warrant of arrest in England
issued on this occasion by Mr. Ronald Bartle. Senator Pinochet was re-arrested in
pursuance of the second warrant on 23 October.
In the Divisional Court the Lord Chief Justice summarized the position
saying that the thrust of the warrant "makes it plain that the applicant is charged not
with personally torturing or murdering victims or ordering their disappearance, but with
using the power of the State to that end". Relying on the information contained in the
request for extradition, it is necessary to expand the cryptic account of the facts in the
warrant. The request alleges a systematic campaign of repression against various
groups in Chile after the military coup on 11 September 1973. The case is that of the
order of 4,000 individuals that were killed or simply disappeared. Such killings and
disappearances mostly took place in Chile but some also took place in various
countries abroad. Such acts were committed during the period from 11 September
1973 until 1990. The climax of the repression was reached in 1974 and 1975. The
principal instrumentality of the oppression was the Direction de Inteligencia Nacional
(DINA), the secret police. The subsequent re-naming of this organization is immaterial.
The case is that agents of DINA, who were specially trained in torture techniques,
tortured victims on a vast scale in secret torture chambers in Santiago and elsewhere
in Chile. The torturers were invariably dressed in civilian clothes. Hooded doctors were
present during torture sessions. The case is not one of interrogators acting in excess
of zeal. The case goes much further. The request explains:
"The most usual method was "the grill" consisting of a metal
table on which the victim was laid naked and his extremities
tied and electrical shocks were applied to the lips, genitals,
wounds or metal prosthesis; also two persons, relatives or
friends, were placed in two metal drawers one on top of the
other so that when the one above was tortured the
psychological impact was felt by the other; on other occasions
the victim was suspended from a bar by the wrists and/or the
knees, and over a prolonged period while held in this situation
electric current was applied to him, cutting wounds were
inflicted or he was beaten; or the "dry submarine" method
was applied, i.e. placing a bag on the head until close to
suffocation, also drugs were used and boiling water was
thrown on various detainees to punish them as a foretaste for
the death which they would later suffer."
As the Divisional Court observed it is not alleged that General Pinochet
personally committed any of these acts by his own hand. The case is, however, that
agents of DINA committed the acts of torture and that DINA was directly answerable to

General Pinochet rather than to the military junta. And the case is that DINA undertook
and arranged the killings, disappearances and torturing of victims on the orders of
General Pinochet.
ISSUE#1
Whether Senator Pinochet may be entitled to immunity as a Former Head of
State.

He was acting in a sovereign capacity. It has not been suggested that

he was personally guilty of any of the crimes of torture or hostage-taking in the
sense that he carried them out with his own hands. What is alleged against him is
that he organized the commission of such crimes, including the elimination of
his political opponents, as head of the Chilean government, and that he did so in
co-operation with other governments under Plan Condor, and in particular with
the government of Argentina. These circumstances he cannot be treated as
having acted in a private capacity.

HELD
The appellants stated in para. 26 of their written case: "No international
agreement specifically provides for the immunities of a former head of state. However,
under customary international law, it is accepted that a state is entitled to expect
that its former head of state will not be subjected to the jurisdiction of the courts
of another state for certain categories of acts performed while he was head of
state unless immunity is waived by the current government of the state of which
he was once the head. The immunity is accorded for the benefit not of the
former head of state himself but for the state of which he was once the head and
any international law obligations are owed to that state and not to the
individual."
The important point to notice in this formulation of the immunity principle is
that the rationale is the same for former heads of state as it is for current heads of
state. In each case the obligation in international law is owed to the state, and not
to the individual, though in the case of a current head of state he will have a
concurrent immunity ratione personae. This rationale explains why it is the
state, and the state alone, which can waive the immunity. Where, therefore, a
state is seeking the extradition of its own former head of state, as has happened
in a number of cases, the immunity is waived ex hypothesi. It cannot be asserted
by the former head of state. But here the situation is the reverse. Chile is not
waiving its immunity in respect of the acts of Senator Pinochet as former head
of state. It is asserting that immunity in the strongest possible terms, both in
respect of the Spanish international warrant, and also in respect of the
extradition proceedings in the United Kingdom.
Decided cases support the same approach. In Hatch v. Baez (1876) 7
Hun. 596 the plaintiff complained of an injury which he sustained at the hands of the
defendant when president of the Dominican Republic. After the defendant had ceased
to be president, he was arrested in New York at the suit of the plaintiff. There was a full
argument before what would now, I think, be called the Second Circuit Court of
Appeals, with extensive citation of authority including Duke of Brunswick v. King of
Hanover. The court ruled:
"The wrongs and injuries of which the plaintiff complains
were inflicted upon him by the Government of St. Domingo,
while he was residing in that country, and was in all respects
subject to its laws. They consist of acts done by the
defendant in his official capacity of president of that republic."
"The fact that the defendant has ceased to be president of
St. Domingo does not destroy his immunity. That springs from
the capacity in which the acts were done, and protects the
individual who did them, because they emanated from a
foreign and friendly government."
In Underhill v. Hernandez (1897) 168 U.S. 250 the plaintiff was an
American citizen resident in Venezuela. The defendant was a general in command of
revolutionary forces, which afterwards prevailed. The plaintiffs brought proceedings
against the defendant in New York, alleging wrongful imprisonment during the
revolution. In a celebrated passage Chief Justice Fuller said, at 252:
"Every sovereign state is bound to respect the
independence of every other sovereign state, and the
courts of one country will not sit in judgment on the acts
of the government of another done within its own
territory. Redress of grievances by reason of such acts
must be obtained through the means open to be availed
of by sovereign powers as between themselves."
In order for the act of state doctrine to apply, the defendant must
establish that his activities are 'acts of state', i.e. that they were taken on behalf
of the state and not, as private acts, on behalf of the actor himself. That the acts
must be public acts of the sovereign has been repeatedly affirmed. Though the
distinction between the public and private acts of government officials may prove
elusive, this difficulty has not prevented courts from scrutinizing the character of the
conduct in question.

ISSUE#2
Whether Senator Pinochet was acting in his private capacity or in a
sovereign capacity as head of state, in committing the crimes which are alleged
against him.

HELD

ISSUE#3
Whether the crimes alleged against Senator Pinochet are so horrific that
an exception must be made to the ordinary rule of customary international law.
HELD
The difficulty is to know where to draw the line. Torture is a horrific crime,
but so is murder. It is a regrettable fact that almost all leaders of revolutionary
movements are guilty of killing their political opponents in the course of coming to
power, and many are guilty of murdering their political opponents thereafter in order to
secure their power. Yet it is not suggested that the crime of murder puts the successful
revolutionary beyond the pale of immunity in customary international law. It is strange
to think of murder or torture as "official" acts or as part of the head of state's "public
functions." But if for "official" one substitutes "governmental" then the true nature of the
distinction between private acts and official acts becomes apparent. For reasons
already mentioned there is no doubt that the crimes of which Senator Pinochet is
accused, including the crime of torture, were governmental in nature. Otherwise
one would get to this position: that the crimes of a head of state in the execution of his
governmental authority are to be attributed to the state so long as they are not too
serious. But beyond a certain (undefined) degree of seriousness the crimes cease to
be attributable to the state, and are instead to be treated as his private crimes. That
would not make sense.

ISSUE#4
Whether there should be an exception from the general rule of immunity in
the case of crimes which have been made the subject of international conventions.
(That the crimes in question are crimes against international law, and that international
law cannot both condemn conduct as a breach of international law and at the same
time grant immunity from prosecution. It cannot give with one hand and take away with
the other.)
HELD
Whether there should be an exception from the general rule of immunity in
the case of crimes which have been made the subject of international conventions,
such as the International Convention against the Taking of Hostages (1980) and
the Convention against Torture (1984). The purpose of these conventions, in very
broad terms, was to ensure that acts of torture and hostage-taking should be
made (or remain) offences under the criminal law of each of the state parties,
and that each state party should take measures to establish extra-territorial
jurisdiction in specified cases. Thus in the case of torture, a state party is
obliged to establish extra-territorial jurisdiction when the alleged offender is a
national of that state, but not where the victim is a national. In the latter case, the
state has discretion: see article 5.1(b) and (c). In addition there is an obligation on
a state to extradite or prosecute where a person accused of torture is found
within its territory--aut dedere aut judicare: see article 7. But there is nothing in
the Torture Convention which touches on state immunity. The contrast with the
Convention on the Prevention and Punishment of the Crime of Genocide (1948) could
not be more marked. Article 4 of the Genocide Convention provides:
"Persons committing genocide or any of the other acts
enumerated in article 3 shall be punished whether they
are constitutionally responsible rulers or public officials
or private individuals."
There is no equivalent provision in either the Torture Convention or
the Taking of Hostages Convention. Moreover, when the Genocide Convention
was incorporated into English law by the Genocide Act 1969, article 4 was
omitted. So Parliament must clearly have intended, or at least contemplated, that
a head of state accused of genocide would be able to plead sovereign immunity.
If the Torture Convention and the Taking of Hostages Convention had contained a
provision equivalent to article 4 of the Genocide Convention (which they did not) it is
reasonable to suppose that, as with genocide, the equivalent provisions would have
been omitted when Parliament incorporated those conventions into English law. It
cannot be seen any inconsistency between the purposes underlying these
Conventions and the rule of international law which allows a head of state procedural
immunity in respect of crimes covered by the Conventions.
Senator Pinochet was held entitled to immunity as former head of
state at common law. The appeal was permitted.

Regina v. Bartle and the Commissioner of Police for the Metropolis and Others,
Ex Parte Pinochet (Mar. 24, 1999, House of Lords)
Facts:
11 September 1973 - General (later Senator) Pinochet led a coup dtat and assumed
power in Chile

11 March 1990 Pinochet resigned as head of state after a controversial time in office

1998 - He went to England for medical treatment during which Spain sought to
extradite him on a number of charges.

The Schooner Exchange v. MacFaddon

FACTS:
- October 27,1809 The Schooner Exchange, a vessel owned by John MacFaddon
and William Greetham (American Citizens), left Baltimore, Maryland to begin its
journey to St. Sebastian, Spain.
- December 30, 1811 while lawfully and peaceably pursuing her voyage, The
Schooner Exchange was violently and forcibly taken by certain persons, acting under
the decrees and orders of Napoleon, Emperor of the French.
-Schooner Exchange then was commissioned by and in the service of the Emperor of
France as a national armed vessel (it is now named Balaou and under a new Captain,
Dennis Begon)
- July22, 1811 Schooner Exchange, while sailing from Europe to the Indies
encountered bad weather and was compelled to enter the port of Philadelphia for
refreshment and repairs.
- August 24, 1811- McFaddon & Greetham, filed for libel in the District Court of the
United States for the District of Pennsylvania against the Schooner Exchange, setting.
- The District Court dismissed the case saying that it has no jurisdiction over the case
since Schooner Exchange was a public vessel belonging to France and therefore has
immunity.
- MacFaddon and Greetham appealed to the Circuit Court who in turn reversed the
decision of the District Court saying that they are entitled to the ship
- The case was brought before the US Supreme Court

Some of the charges related to the time before Senator Pinochet became head of
state, most of them to the time when he was head of state, but none to the time after
he ceased to be head of state. Some of those charges had links with Spain but most of
the charges had none. The decision of the House of Lords on the first appeal was
famously set aside on the ground that the Judicial Committee was not properly
constituted because one of the lords had links with Amnesty international which
intervened in the proceedings. This is the third and final ruling of the House of Lords
on the Pinochet case.

Issues:
(1) Are there any extradition crimes included in Spains request? and if so,
(2) Is Senator Pinochet immune from trial for committing those crimes?

Ruling:
1.
The principle of double criminality with respect to extradition requires that "the
conduct complained of must constitute a crime under the law both of the
requesting state and of the United Kingdom." After examination of the legislative
history of the Extradition Act 1989 and its predecessor, it was held that crimes
were extradition crimes only if the acts were criminal under UK law at the time the
acts were committed.
Lords delivered their ruling on the reheard appeal with a majority of 6:1 holding
that Pinochet may be extradited to Spain for crimes of torture and
conspiracy to torture committed after 8 December 1988, when UK ratified the
Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment (the Torture Convention) in its domestic law (Chile and Spain ratified
the Convention at an earlier date). Section 134 of the Criminal Justice Act 1988,
which came into force on 29 September 1988, incorporated the Torture
Convention into UK law. It made acts of torture committed by a "public official or
other person acting in an official capacity" unlawful. However, most of the charges
listed in the request concerned events that happened before UK ratified the
Convention. Also, the charge on conspiracy to take hostages could not be an
extradition crime because it did not satisfy the conditions of the UK Taking of
Hostages Act. The only charges considered to be extradition crimes were torture
and conspiracy to torture committed after December 8, 1988 and the charges
relating to murder and conspiracies to commit murder.
2.

The charges of murder and conspiracies to commit murder were dismissed on the
ground that no sound legal reasoning was advanced as to why the normal rules
on immunity would not apply. However, the Lords ruled that Pinochet did not
enjoy the same immunity ratione materiae for the extradition crimes of torture and
conspiracy to commit torture committed after December 8, 1988 not only because
implementing torture was not a function related to his official capacity as head of
state, but more so because of the gravity of such crime committed against
humanity as a whole. Citing Prosecutor v. Furundzija, [ICTY 1988], the "jus
cogens nature of the international crime of torture" was recognized by the Court.
The Torture Convention created an international regime in which "continued
immunity for ex-heads of state is inconsistent with its provisions." While there
was no express waiver of state immunity in the Torture Convention, the
international law of torture had developed to the point that a universal jurisdiction
was in place. Because the Convention applies to state officials, no claim of
immunity can result for a head of state. Furthermore, Pinochet lost immunity as of
the dates that UK and Chile ratified the Torture Convention because "it was no
longer open to any state which was a signatory to the Convention to invoke the
immunity ratione materiae in the event of allegations of systemic or widespread
torture committed after that date being made in the courts against its officials or
any other person acting in an official capacity." As a matter of general customary
international law, a head of state will be personally liable for authorizing or
perpetrating such serious international crimes

Issue: Whether or not an American citizen can assert in an American court a title to an
armed national vessel found within the waters of the United States.

Ruling: No.
The Exchange, being a public armed ship in the service of a foreign sovereign with
whom the government of the United States is at peace, and having entered an
American port open for her reception on the terms on which ships of war are generally
permitted to enter the ports of a friendly power, must be considered as having come
into the American territory under an implied promise that while necessarily within it and
demeaning herself in a friendly manner, she should be exempt from the jurisdiction of
the country.
The jurisdiction of a nation within its own territory, is exclusive and absolute. It is
susceptible of no limitation not imposed by itself. Any restriction deriving validity from
an external source would imply a diminution of its sovereignty to the extent of that
restriction, and an investment of that sovereignty to the same extent in that power
which could impose such restriction.
All exceptions to the full and complete power of a nation within its own territories must
be traced up to the consent of the nation itself.
A nation would justly be considered as violating its faith, although not expressly
plighted, which should suddenly and without previous notice exercise its territorial
powers in a manner not consonant to the usages and received obligations of the
civilized world.
The full and absolute territorial jurisdiction being alike the attribute of every sovereignty
and being incapable of conferring extraterritorial power, does not contemplate foreign
sovereigns, nor their sovereign rights as its objects. One sovereign can be supposed
to enter a foreign territory only under an express license or in the confidence that the
immunities belonging to his independent, sovereign station, though not expressly
stipulated, are reserved by implication and will be extended to him.
A sovereign entering a foreign territory with the knowledge and license of its sovereign,
that license, though containing no stipulation exempting his person from arrest, is
universally understood to imply such stipulation.
A foreign minister is considered as in the place of the sovereign he represents, and
therefore not in point of law within the jurisdiction of the sovereign at whose court he
resides.
Where a sovereign allows the troops of a foreign prince to pass through his dominions,
he waives his jurisdiction over the army to which the right of passage has been
granted without any express declaration to that effect.
If there be no prohibition the ports of a friendly nation are considered as open to the
public ships of all powers with whom it is at peace, and they are supposed to enter
such ports and to remain in them under the protection of the government of the place.
If there be no treaty applicable to the case, and the sovereign permits his ports to
remain open to the public ships of foreign friendly powers, they virtually enter by his
assent. If they enter by an assent thus necessarily implied, their case cannot be
distinguished from that of vessels entering by express assent.
The implied license under which a public armed ship enters a friendly port ought to be
construed as containing an exemption from the jurisdiction of the sovereign whose
territory she enters.
Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium)
Summary of the Judgment of 14 February 2002

History of the proceedings and submissions of the Parties (paras. 1-12)

The Court recalls that on 17 October 2000 the Democratic Republic of the Congo
(hereinafter "the Congo") filed in the Registry of the Court an Application instituting
proceedings against the Kingdom of Belgium (hereinafter "Belgium") in respect of a
dispute concerning an "international arrest warrant issued on 11 April 2000 by a
Belgian investigating judge . . . against the Minister for Foreign Affairs in office of the
Democratic Republic of the Congo, Mr. Abdulaye Yerodia Ndombasi".
In that Application the Congo contended that Belgium had violated the "principle that a
State may not exercise its authority on the territory of another State", the "principle of
sovereign equality among all Members of the United Nations, as laid down in Article 2,
paragraph 1, of the Charter of the United Nations", as well as "the diplomatic immunity
of the Minister for Foreign Affairs of a sovereign State, as recognized by the
jurisprudence of the Court and following from Article 41, paragraph 2, of the
Vienna Convention of 18 April 1961 on Diplomatic Relations". In order to found the
Courts jurisdiction the Congo invoked in the aforementioned Application the fact that
"Belgium ha[d] accepted the jurisdiction of the Court and, in so far as may be required,
the [aforementioned] Application signifie[d] acceptance of that jurisdiction by the
Democratic Republic of the Congo".
The Court further recalls that on the same day, the Congo also filed a request for the
indication of a provisional measure; and that by an Order of 8 December 2000 the
Court, on the one hand, rejected Belgiums request that the case be removed from the
List and, on the other, held that the circumstances, as they then presented themselves
to the Court, were not such as to require the exercise of its power under Article 41 of
the Statute to indicate provisional measures. In the same Order, the Court also held
that "it [was] desirable that the issues before the Court should be determined as soon
as possible" and that "it [was] therefore appropriate to ensure that a decision on the
Congos Application be reached with all expedition".
By Order of 13 December 2000, the President of the Court, taking account of the
agreement of the Parties as expressed at a meeting held with their Agents on
8 December 2000, fixed time-limits for the filing of a Memorial by the Congo and of a
Counter-Memorial by Belgium, addressing both issues of jurisdiction and admissibility
and the merits. After the pleadings had been filed within the time-limits as
subsequently extended, public hearings were held from 15 to 19 October 2001.
At the oral proceedings, the following final submissions were presented by the Parties:
On behalf of the Government of the Congo,
"In light of the facts and arguments set out during the written and oral proceedings,
the Government of the Democratic Republic of the Congo requests the Court to
adjudge and declare that:
1. by issuing and internationally circulating the arrest warrant of 11 April 2000
against Mr. Abdulaye Yerodia Ndombasi, Belgium committed a violation in regard
to the Democratic Republic of the Congo of the rule of customary international law
concerning the absolute inviolability and immunity from criminal process of
incumbent foreign ministers; in so doing, it violated the principle of sovereign
equality among States;
2. a formal finding by the Court of the unlawfulness of that act constitutes an
appropriate form of satisfaction, providing reparation for the consequent moral
injury to the Democratic Republic of the Congo;
3. the violations of international law underlying the issue and international
circulation of the arrest warrant of 11 April 2000 preclude any State, including
Belgium, from executing it;
4. Belgium shall be required to recall and cancel the arrest warrant of 11 April 2000
and to inform the foreign authorities to whom the warrant was circulated that
Belgium renounces its request for their co-operation in executing the unlawful
warrant."
On behalf of the Government of Belgium,
"For the reasons stated in the Counter-Memorial of Belgium and in its oral
submissions, Belgium requests the Court, as a preliminary matter, to adjudge and
declare that the Court lacks jurisdiction in this case and/or that the Application by
the Democratic Republic of the Congo against Belgium is inadmissible.
If, contrary to the submissions of Belgium with regard to the Courts jurisdiction and
the admissibility of the Application, the Court concludes that it does have jurisdiction
in this case and that the Application by the Democratic Republic of the Congo is
admissible, Belgium requests the Court to reject the submissions of the Democratic
Republic of the Congo on the merits of the case and to dismiss the Application."
Background to the case (paras. 13-21)
On 11 April 2000 an investigating judge of the Brussels tribunal de premire
instance issued "an international arrest warrant in absentia" against
Mr. Abdulaye Yerodia Ndombasi, charging him, as perpetrator or co-perpetrator, with
offences constituting grave breaches of the Geneva Conventions of 1949 and of the
Additional Protocols thereto, and with crimes against humanity. The arrest warrant was
circulated internationally through Interpol.
At the time when the arrest warrant was issued Mr. Yerodia was the Minister for
Foreign Affairs of the Congo.
The crimes with which Mr. Yerodia was charged were punishable in Belgium under the
Law of 16 June 1993 "concerning the Punishment of Grave Breaches of the
International Geneva Conventions of 12 August 1949 and of Protocols I and II of
8 June 1977 Additional Thereto", as amended by the Law of 19 February 1999
"concerning the Punishment of Serious Violations of International Humanitarian Law"
(hereinafter referred to as the "Belgian Law").
On 17 October 2000, the Congo instituted proceedings before the International Court
of Justice, requesting the Court "to declare that the Kingdom of Belgium shall annul
the international arrest warrant issued on 11 April 2000". After the proceedings were
instituted, Mr. Yerodia ceased to hold office as Minister for Foreign Affairs, and
subsequently ceased to hold any ministerial office.
In its Application instituting proceedings, the Congo relied on two separate legal
grounds. First, it claimed that "[t]he universal jurisdiction that the Belgian State
attributes to itself under Article 7 of the Law in question" constituted a "[v]iolation of the
principle that a State may not exercise its authority on the territory of another State
and of the principle of sovereign equality among all Members of the United Nations".
Secondly, it claimed that "[t]he non-recognition, on the basis of Article 5 . . . of the

Belgian Law, of the immunity of a Minister for Foreign Affairs in office" constituted a
"[v]iolation of the diplomatic immunity of the Minister for Foreign Affairs of a sovereign
State". However, the Congos Memorial and its final submissions refer only to a
violation "in regard to the . . . Congo of the rule of customary international law
concerning the absolute inviolability and immunity from criminal process of incumbent
foreign ministers".
Objections of Belgium relating to jurisdiction, mootness and admissibility (paras. 2244)
Belgiums first objection (paras. 23-28)
The Court begins by considering the first objection presented by Belgium, which reads
as follows:
"That, in the light of the fact that Mr. Yerodia Ndombasi is no longer either Minister
for Foreign Affairs of the [Congo] or a minister occupying any other position in
the . . . Government [of the Congo], there is no longer a legal dispute between the
Parties within the meaning of this term in the Optional Clause Declarations of the
Parties and that the Court accordingly lacks jurisdiction in this case."
The Court recalls that, according to its settled jurisprudence, its jurisdiction must be
determined at the time that the act instituting proceedings was filed. Thus, if the Court
has jurisdiction on the date the case is referred to it, it continues to do so regardless of
subsequent events. Such events might lead to a finding that an application has
subsequently become moot and to a decision not to proceed to judgment on the
merits, but they cannot deprive the Court of jurisdiction.
The Court then finds that, on the date that the Congos Application instituting these
proceedings was filed, each of the Parties was bound by a declaration of acceptance
of compulsory jurisdiction, filed in accordance with Article 36, paragraph 2, of the
Statute of the Court: Belgium by a declaration of 17 June 1958 and the Congo by a
declaration of 8 February 1989. Those declarations contained no reservation
applicable to the present case. The Court further observes that it is, moreover, not
contested by the Parties that at the material time there was a legal dispute between
them concerning the international lawfulness of the arrest warrant of 11 April 2000 and
the consequences to be drawn if the warrant was unlawful. The Court accordingly
concludes that at the time that it was seised of the case it had jurisdiction to deal with
it, and that it still has such jurisdiction, and that Belgiums first objection must therefore
be rejected.
Belgiums second objection (paras. 29-32)
The second objection presented by Belgium is the following:
"That in the light of the fact that Mr. Yerodia Ndombasi is no longer either Minister
for Foreign Affairs of the [Congo] or a minister occupying any other position in
the . . . Government [of the Congo], the case is now without object and the Court
should accordingly decline to proceed to judgment on the merits of the case."
The Court notes that it has already affirmed on a number of occasions that events
occurring subsequent to the filing of an application may render the application without
object such that the Court is not called upon to give a decision thereon. However, the
Court considers that this is not such a case. It finds that the change which has
occurred in the situation of Mr. Yerodia has not in fact put an end to the dispute
between the Parties and has not deprived the Application of its object. The Congo
argues that the arrest warrant issued by the Belgian judicial authorities against
Mr. Yerodia was and remains unlawful. It asks the Court to hold that the warrant is
unlawful, thus providing redress for the moral injury which the warrant allegedly
caused to it. The Congo also continues to seek the cancellation of the warrant. For its
part, Belgium contends that it did not act in violation of international law and it disputes
the Congos submissions. In the view of the Court, it follows from the foregoing that the
Application of the Congo is not now without object and that accordingly the case is not
moot. Belgiums second objection is accordingly rejected.
Belgiums third objection (paras. 33-36)
The third Belgian objection is put as follows:
"That the case as it now stands is materially different to that set out in the [Congo]s
Application instituting proceedings and that the Court accordingly lacks jurisdiction
in the case and/or that the application is inadmissible."
The Court notes that, in accordance with settled jurisprudence, it "cannot, in principle,
allow a dispute brought before it by application to be transformed by amendments in
the submissions into another dispute which is different in character". However, the
Court considers that in the present case the facts underlying the Application have not
changed in a way that produced such a transformation in the dispute brought before it.
The question submitted to the Court for decision remains whether the issue and
circulation of the arrest warrant by the Belgian judicial authorities against a person who
was at that time the Minister for Foreign Affairs of the Congo were contrary to
international law. The Congos final submissions arise "directly out of the question
which is the subject-matter of that Application". In these circumstances, the Court
considers that Belgium cannot validly maintain that the dispute brought before the
Court was transformed in a way that affected its ability to prepare its defence, or that
the requirements of the sound administration of justice were infringed. Belgiums third
objection is accordingly rejected.
Belgiums fourth objection (paras. 37-40)
The fourth Belgian objection reads as follows:
"That, in the light of the new circumstances concerning Mr. Yerodia Ndombasi, the
case has assumed the character of an action of diplomatic protection but one in
which the individual being protected has failed to exhaust local remedies, and that
the Court accordingly lacks jurisdiction in the case and/or that the application is
inadmissible."
The Court notes that the Congo has never sought to invoke before it Mr. Yerodias
personal rights. It considers that, despite the change in professional situation of
Mr. Yerodia, the character of the dispute submitted to the Court by means of the
Application has not changed: the dispute still concerns the lawfulness of the arrest
warrant issued on 11 April 2000 against a person who was at the time Minister for
Foreign Affairs of the Congo, and the question whether the rights of the Congo have or
have not been violated by that warrant. The Court finds that, as the Congo is not
acting in the context of protection of one of its nationals, Belgium cannot rely upon the
rules relating to the exhaustion of local remedies.
In any event, the Court recalls that an objection based on non-exhaustion of local
remedies relates to the admissibility of the application. Under settled jurisprudence,
the critical date for determining the admissibility of an application is the date on which

it is filed. Belgium accepts that, on the date on which the Congo filed the Application
instituting proceedings, the Congo had a direct legal interest in the matter, and was
asserting a claim in its own name. Belgiums fourth objection is accordingly rejected.
Belgiums subsidiary argument concerning the non ultra petita rule (paras. 41-43)
As a subsidiary argument, Belgium further contends that "[i]n the event that the Court
decides that it does have jurisdiction in this case and that the application is
admissible, . . . the non ultra petita rule operates to limit the jurisdiction of the Court to
those issues that are the subject of the [Congo]s final submissions".
Belgium points out that the Congo initially advanced a twofold argument, based, on the
one hand, on the Belgian judges lack of jurisdiction and, on the other, on the immunity
from jurisdiction enjoyed by its Minister for Foreign Affairs. According to Belgium, the
Congo now confines itself to arguing the latter point, and the Court consequently
cannot rule on the issue of universal jurisdiction in any decision it renders on the
merits of the case.
The Court recalls the well-established principle that "it is the duty of the Court not only
to reply to the questions as stated in the final submissions of the parties, but also to
abstain from deciding points not included in those submissions" The Court observes
that, while it is thus not entitled to decide upon questions not asked of it, the non ultra
petita rule nonetheless cannot preclude the Court from addressing certain legal points
in its reasoning. Thus in the present case the Court may not rule, in the operative part
of its Judgment, on the question whether the disputed arrest warrant, issued by the
Belgian investigating judge in exercise of his purported universal jurisdiction, complied
in that regard with the rules and principles of international law governing the
jurisdiction of national courts. This does not mean, however, that the Court may not
deal with certain aspects of that question in the reasoning of its Judgment, should it
deem this necessary or desirable.
Merits of the case (paras. 45-71)
As indicated above, in its Application instituting these proceedings, the Congo
originally challenged the legality of the arrest warrant of 11 April 2000 on two separate
grounds: on the one hand, Belgiums claim to exercise a universal jurisdiction and, on
the other, the alleged violation of the immunities of the Minister for Foreign Affairs of
the Congo then in office. However, in its submissions in its Memorial, and in its final
submissions at the close of the oral proceedings, the Congo invokes only the latter
ground.
The Court observes that, as a matter of logic, the second ground should be addressed
only once there has been a determination in respect of the first, since it is only where a
State has jurisdiction under international law in relation to a particular matter that there
can be any question of immunities in regard to the exercise of that jurisdiction.
However, in the present case, and in view of the final form of the Congos submissions,
the Court first addresses the question whether, assuming that it had jurisdiction under
international law to issue and circulate the arrest warrant of 11 April 2000, Belgium in
so doing violated the immunities of the then Minister for Foreign Affairs of the Congo.
Immunity and inviolability of an incumbent Foreign Minister in general (paras. 47-55)
The Court observes at the outset that in international law it is firmly established that,
as also diplomatic and consular agents, certain holders of high-ranking office in a
State, such as the Head of State, Head of Government and Minister for Foreign Affairs,
enjoy immunities from jurisdiction in other States, both civil and criminal. For the
purposes of the present case, it is only the immunity from criminal jurisdiction and the
inviolability of an incumbent Minister for Foreign Affairs that fall for the Court to
consider.
The Court notes that a certain number of treaty instruments were cited by the Parties
in this regard, including the Vienna Convention on Diplomatic Relations of
18 April 1961 and the New York Convention on Special Missions of 8 December 1969.
The Court finds that these conventions provide useful guidance on certain aspects of
the question of immunities, but that they do not contain any provision specifically
defining the immunities enjoyed by Ministers for Foreign Affairs. It is consequently on
the basis of customary international law that the Court must decide the questions
relating to the immunities of such Ministers raised in the present case.
In customary international law, the immunities accorded to Ministers for Foreign Affairs
are not granted for their personal benefit, but to ensure the effective performance of
their functions on behalf of their respective States. In order to determine the extent of
these immunities, the Court must therefore first consider the nature of the functions
exercised by a Minister for Foreign Affairs. After an examination of those functions, the
Court concludes that they are such that, throughout the duration of his or her office, a
Minister for Foreign Affairs when abroad enjoys full immunity from criminal jurisdiction
and inviolability. That immunity and that inviolability protect the individual concerned
against any act of authority of another State which would hinder him or her in the
performance of his or her duties.
The Court finds that in this respect no distinction can be drawn between acts
performed by a Minister for Foreign Affairs in an "official" capacity and those claimed to
have been performed in a "private capacity", or, for that matter, between acts
performed before the person concerned assumed office as Minister for Foreign Affairs
and acts committed during the period of office. Thus, if a Minister for Foreign Affairs is
arrested in another State on a criminal charge, he or she is clearly thereby prevented
from exercising the functions of his or her office. Furthermore, even the mere risk that,
by travelling to or transiting another State, a Minister for Foreign Affairs might be
exposing himself or herself to legal proceedings could deter the Minister from travelling
internationally when required to do so for the purposes of the performance of his or her
official functions.
The Court then addresses Belgiums argument that immunities accorded to incumbent
Ministers for Foreign Affairs can in no case protect them where they are suspected of
having committed war crimes or crimes against humanity.
The Court states that it has carefully examined State practice, including national
legislation and those few decisions of national higher courts, such as the House of
Lords in the United Kingdom or the French Court of Cassation, and that it has been
unable to deduce from this practice that there exists under customary international law
any form of exception to the rule according immunity from criminal jurisdiction and
inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of
having committed war crimes or crimes against humanity. The Court adds that it has
also examined the rules concerning the immunity or criminal responsibility of persons
having an official capacity contained in the legal instruments creating international
criminal tribunals, and which are specifically applicable to the latter (see Charter of the

International Military Tribunal of Nuremberg, Art. 7; Charter of the International Military

Tribunal of Tokyo, Art. 6; Statute of the International Criminal Tribunal for the former
Yugoslavia, Art. 7, para. 2; Statute of the International Criminal Tribunal for Rwanda,
Art. 6, para. 2; Statute of the International Criminal Court, Art. 27), and that it finds that
these rules likewise do not enable it to conclude that any such exception exists in
customary international law in regard to national courts. Finally, the Court observes
that none of the decisions of the Nuremberg and Tokyo international military tribunals,
or of the International Criminal Tribunal for the former Yugoslavia, cited by Belgium
deal with the question of the immunities of incumbent Ministers for Foreign Affairs
before national courts where they are accused of having committed war crimes or
crimes against humanity. The Court accordingly notes that those decisions are in no
way at variance with the findings it has reached above. The Court accordingly does not
accept Belgiums argument in this regard.
It further notes that the rules governing the jurisdiction of national courts must be
carefully distinguished from those governing jurisdictional immunities: jurisdiction does
not imply absence of immunity, while absence of immunity does not imply jurisdiction.
Thus, although various international conventions on the prevention and punishment of
certain serious crimes impose on States obligations of prosecution or extradition,
thereby requiring them to extend their criminal jurisdiction, such extension of
jurisdiction in no way affects immunities under customary international law, including
those of Ministers for Foreign Affairs. The Court emphasizes, however, that
the immunity from jurisdiction enjoyed by incumbent Ministers for Foreign Affairs does
not mean that they enjoy impunity in respect of any crimes they might have committed,
irrespective of their gravity. Jurisdictional immunity may well bar prosecution for a
certain period or for certain offences; it cannot exonerate the person to whom it applies
from all criminal responsibility. Accordingly, the immunities enjoyed under international
law by an incumbent or former Minister for Foreign Affairs do not represent a bar to
criminal prosecution in certain circumstances. The Court refers to circumstances
where such persons are tried in their own countries, where the State which they
represent or have represented decides to waive that immunity, where such persons no
longer enjoy all of the immunities accorded by international law in other States after
ceasing to hold the office of Minister for Foreign Affairs, and where such persons are
subject to criminal proceedings before certain international criminal courts, where they
have jurisdiction.
The issue and circulation of the arrest warrant of 11 April 2000 (paras. 62-71)
Given the conclusions it has reached above concerning the nature and scope of the
rules governing the immunity from criminal jurisdiction enjoyed by incumbent Ministers
for Foreign Affairs, the Court then considers whether in the present case the issue of
the arrest warrant of 11 April 2000 and its international circulation violated those rules.
The Court recalls in this regard that the Congo requests it, in its first final submission,
to adjudge and declare that:
"[B]y issuing and internationally circulating the arrest warrant of 11 April 2000
against Mr. Abdulaye Yerodia Ndombasi, Belgium committed a violation in regard to
the Democratic Republic of the Congo of the rule of customary international law
concerning the absolute inviolability and immunity from criminal process of
incumbent foreign ministers; in so doing, it violated the principle of sovereign
equality among States."
After examining the terms of the arrest warrant, the Court notes that its issuance, as
such, represents an act by the Belgian judicial authorities intended to enable the arrest
on Belgian territory of an incumbent Minister for Foreign Affairs on charges of war
crimes and crimes against humanity. The fact that the warrant is enforceable is clearly
apparent from the order given in it to "all bailiffs and agents of public authority . . . to
execute this arrest warrant" and from the assertion in the warrant that "the position of
Minister for Foreign Affairs currently held by the accused does not entail immunity from
jurisdiction and enforcement". The Court notes that the warrant did admittedly make an
exception for the case of an official visit by Mr. Yerodia to Belgium, and that
Mr. Yerodia never suffered arrest in Belgium. The Court considers itself bound,
however, to find that, given the nature and purpose of the warrant, its mere issue
violated the immunity which Mr. Yerodia enjoyed as the Congos incumbent Minister for
Foreign Affairs. The Court accordingly concludes that the issue of the warrant
constituted a violation of an obligation of Belgium towards the Congo, in that it failed to
respect the immunity of that Minister and, more particularly, infringed the immunity
from criminal jurisdiction and the inviolability then enjoyed by him under international
law.
The Court also notes that Belgium admits that the purpose of the
international circulation of the disputed arrest warrant was "to establish a legal basis
for the arrest of Mr. Yerodia . . . abroad and his subsequent extradition to Belgium".
The Court finds that, as in the case of the warrants issue, its international circulation
from June 2000 by the Belgian authorities, given its nature and purpose, effectively
infringed Mr. Yerodias immunity as the Congos incumbent Minister for Foreign Affairs
and was furthermore liable to affect the Congos conduct of its international relations.
The Court concludes that the circulation of the warrant, whether or not it significantly
interfered with Mr. Yerodias diplomatic activity, constituted a violation of an obligation
of Belgium towards the Congo, in that it failed to respect the immunity of the
incumbent Minister for Foreign Affairs of the Congo and, more particularly, infringed
the immunity from criminal jurisdiction and inviolability then enjoyed by him under
international law.
Remedies (paras. 72-77)
The Court then addresses the issue of the remedies sought by the Congo on account
of Belgiums violation of the above-mentioned rules of international law. (Cf. the
second, third and fourth submissions of the Congo reproduced above).
The Court observes that it has already concluded that the issue and circulation of the
arrest warrant of 11 April 2000 by the Belgian authorities failed to respect the immunity
of the incumbent Minister for Foreign Affairs of the Congo and, more particularly,
infringed the immunity from criminal jurisdiction and the inviolability then enjoyed by
Mr. Yerodia under international law. Those acts engaged Belgiums international
responsibility. The Court considers that the findings so reached by it constitute a form
of satisfaction which will make good the moral injury complained of by the Congo.
However, the Court goes on to observe that, as the Permanent Court of International
Justice stated in its Judgment of 13 September 1928 in the case concerning
the Factory at Chorzw:

"[t]he essential principle contained in the actual notion of an illegal act - a principle
which seems to be established by international practice and in particular by the
decisions of arbitral tribunals - is that reparation must, as far as possible, wipe out
all the consequences of the illegal act and reestablish the situation which would, in
all probability, have existed if that act had not been committed" (P.C.I.J., Series A,
No. 17, p. 47).
The Court finds that, in the present case, "the situation which would, in all probability,
have existed if [the illegal act] had not been committed" cannot be re-established
merely by a finding by the Court that the arrest warrant was unlawful under
international law. The warrant is still extant, and remains unlawful, notwithstanding the
fact that Mr. Yerodia has ceased to be Minister for Foreign Affairs. The Court
accordingly considers that Belgium must, by means of its own choosing, cancel the
warrant in question and so inform the authorities to whom it was circulated.
The Court sees no need for any further remedy: in particular, the Court points out that
it cannot, in a judgment ruling on a dispute between the Congo and Belgium, indicate
what that judgments implications might be for third States, and the Court finds that it
cannot therefore accept the Congos submissions on this point.
The full text of the operative paragraph (para. 78) reads as follows:
"For these reasons,
The Court,
(1) (A) By fifteen votes to one,
Rejects the objections of the Kingdom of Belgium relating to jurisdiction, mootness
and admissibility;
For: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,
Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-Bula,
Van den Wyngaert;
Against: Judge Oda;
(B) By fifteen votes to one,
Finds that it has jurisdiction to entertain the Application filed by the Democratic
Republic of the Congo on 17 October 2000;
For: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,
Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-Bula,
Van den Wyngaert;
Against: Judge Oda;
(C) By fifteen votes to one,
Finds that the Application of the Democratic Republic of the Congo is not without
object and that accordingly the case is not moot;
For: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,
Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-Bula,
Van den Wyngaert;
Against: Judge Oda;
(D) By fifteen votes to one,
Finds that the Application of the Democratic Republic of the Congo is admissible;
For: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,
Rezek, Al-Khasawneh, Buergenthal; Judges ad hoc Bula-Bula,
Van den Wyngaert;
Against: Judge Oda;
(2) By thirteen votes to three,
Finds that the issue against Mr. Abdulaye Yerodia Ndombasi of the arrest warrant of
11 April 2000, and its international circulation, constituted violations of a legal
obligation of the Kingdom of Belgium towards the Democratic Republic of the
Congo, in that they failed to respect the immunity from criminal jurisdiction and the
inviolability which the incumbent Minister for Foreign Affairs of the Democratic
Republic of the Congo enjoyed under international law;
For: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren, Kooijmans,
Rezek, Buergenthal; Judge ad hoc Bula-Bula;
Against: Judges Oda, Al-Khasawneh; Judge ad hoc Van den Wyngaert;
(3) By ten votes to six,
Finds that the Kingdom of Belgium must, by means of its own choosing, cancel the
arrest warrant of 11 April 2000 and so inform the authorities to whom that warrant
was circulated;
For: President Guillaume; Vice-President Shi; Judges Ranjeva, Herczegh,
Fleischhauer, Koroma, Vereshchetin, Parra-Aranguren, Rezek; Judge ad
hoc Bula-Bula;
Against: Judges Oda, Higgins, Kooijmans, Al-Khasawneh, Buergenthal; Judge ad
hoc Van den Wyngaert."

these laws and they could not get compensation in Germany (paras 20 27). These
internees brought civil cases against Germany in Italian Courts to claim
compensation. Germany objected to the proceedings on the basis of jurisdictional
immunity before foreign courts. Italian Courts held that jurisdictional immunity is not
absolute and that in cases of crimes under international law, the jurisdictional
immunity of States should be set aside. (paras 27 29).

Jurisdictional Immunities of The State (Germany Vs Italy) (Summary)

Name of the Case: Jurisdictional Immunities of the State (Germany vs Italy); Year of
the decision: 2012; and Court: ICJ.

State immunity derives from the principle of sovereign equality found in Article 2(1) of
the UN Charter. It is one of the fundamental pillars of the international legal order. As
between Italy and Germany this right is derived from customary international law, in
the absence of a treaty to that effect. Based on its analysis of State practice
and opinio juris, the ICJ said, practice shows that, whether in claiming immunity for
themselves or according it to others, States generally proceed on the basis that there
is a right to immunity under international law, together with a corresponding obligation
on the part of other States to respect and give effect to that immunity.(paras 55 56).

Overview: Italian Courts allowed civil claims to be brought against Germany based
on violations of international humanitarian law committed by Germany from 1943
1945 against Italian citizens. Italian courts also permitted the enforcement of a
judgement of the Greek courts in Italy against Germany and took measures of
constraint against a German property in Italy. Did Italys actions violate the customary
international law right of jurisdictional immunity of Germany?

Greek courts also set aside the immunity of Germany, in a similar situation, and
ordered Germany to pay damages. Germany refused to pay on the basis that these
Greek judicial decisions could not be recognized within the German legal order
because they have been given in breach of Germans entitlement of State
Immunity. The judgement could not be given effect to in Greece due to a decision of
the executive. The Greek claimants then asked Italian courts to enforce the Greek
judgement. Italian courts ordered a legal charge over a property of Germany in Italy as
a measure of enforcement (paras 30 36).
Questions before the Court:
Is jurisdictional immunity available to a State for acts committed by its armed forces in
the conduct of an armed conflict? If so, did Italy violate this immunity by allowing civil
claims against Germany to be brought before its courts and by enforcing the Greek
judgement in Italy? Did Italy violate its international law obligations relating to
Germanys jurisdictional immunities when it took measures of constraint against
German property in Italy?
The Courts Decision:
Italy violated its obligation to respect Germanys immunity under international law by
allowing civil claims to be brought against Germany based on violations of
international humanitarian law committed by the German Reich between 1943 and
1945, by declaring enforceable in Italy decisions of Greek courts and by taking
measures of constraint against German property in Italy.
The Court requested Italy to enact legislation, or resort to other methods of its
choosing, to ensure that the decisions of its courts and those of other judicial
authorities infringing the immunity which Germany enjoys under international law
cease to have effect.
Relevant Findings of the Court:

Did the ICJ have jurisdiction to hear this case?

ICJs jurisdiction was on the basis of the European Convention for the Peaceful
Settlement of Disputes. Article 27(a) of the Convention states that the Convention did
not apply to disputes relating to facts or situations prior to the entry into force of this
Convention as between the parties to the dispute. The relevant year of entry into
force was 1961. The Court held that the subject matter of the dispute the crimes for
which reparations are sought occurred during between 1943 and 1945. However,
the facts or situations which have given rise to the (present) dispute before the
Court are constituted by Italian judicial decisions that denied Germany the
jurisdictional immunity and by measures of constraint applied to property belonging
to Germany This occurred between 2004 and 2011. The ICJ had jurisdiction to hear
the case.
Is jurisdictional immunity available to a State for acts committed by its armed
forces during an armed conflict?
The ICJ affirmed that jurisdictional immunities are available to a State before foreign
courts, for acts of its armed forces, which were committed during the conduct of
an armed conflict. In coming to this conclusion, the ICJ analysed:
(1) the customary nature of State immunity

(2) the relationship between jurisdictional immunity and the territorial sovereignty of
the forum State

Facts of the Case:

In 1940, Italy entered the Second World War as an ally of the German Reich. In 1943,
Italy surrendered to the Allies and declared war against Germany. At the time, German
forces occupied significant Italian territory. It committed many crimes against civilians
and soldiers, including massacres, deportations and forced labour. After the end of the
war, Germany enacted several laws to facilitate the payment of compensation to these
victims. However, thousands of former Italian military internees did not fall within

This principle [of State immunity] has to be viewed together with the principle that
each State possesses sovereignty over its own territory and that there flows from that
sovereignty the jurisdiction of the State over events and persons within that territory.
Exceptions to the immunity of the State represent a departure from the principle of
sovereign equality. Immunity may [also] represent a departure from the principle of
territorial sovereignty and the jurisdiction which flows from it (para 57).

(3) the classification of acts as falling under jus imperii or jus gestionis.
The ICJ discussed jus imperii (law governing the exercise of sovereign power) and jus
gestionis(law relating to non-sovereign activities of a State, especially private and
commercial activities). A domestic court has to assert the nature of the act (whether
imperii or gestionis) before it hears the case; because, this will determine if the State
is entitled to immunity before the domestic court (para 59 -60).
The acts of the German armed forces and other State organs which were the subject
of the proceedings in the Italian courts clearly constituted acta jure imperii
notwithstanding that they were unlawful. To the extent that this distinction (between
jus imperii and jus gestionis) is significant for determining whether or not a State is
entitled to immunity from the jurisdiction of another States courts in respect of a
particular act, it has to be applied before that jurisdiction can be exercised,
whereas the legality or illegality of the act is something which can be determined only
in the exercise of that jurisdiction (para 60. Emphasis added).
The Court concluded that German enjoyed jurisdictional immunity before foreign
courts for acts committed by its armed forces.
Did Italy violate the jurisdictional immunity of Germany by allowing civil claims
against Germany before its courts?
Itay argued that Germany was not entitled to immunity or that its immunity before
Italian courts was restricted because of the: (1) territorial tort principle (see below)
and (2) fact that the rules that were violated were of jus cogens nature and, if
Germany was to succeed in its claim of immunity, no alternative means of redress was
available (para 61).
Italys First Argument: Territorial Tort Principle
Italy argued that under customary international law Germany was not entitled to
immunity for acts causing death, personal injury or damage to property in the territory
of the forum State (in this case italy) even if the acts in question falls within jus
imperii. The ICJ disagreed.
The ICJ based its determination on an analysis of the European Convention on State
Immunities, the UN convention on Jurisdictional Immunities, work of the International
Law Commission on State Immunity, national legislation and national judicial decisions
( paras 64 -76) and concluded that
State immunity for acta jure imperii continues to extend to civil proceedings for acts
occasioning death, personal injury or damage to property committed by the armed
forces and other organs of a State in the conduct of armed conflict, even if the relevant
acts take place on the territory of the forum State In light of the foregoing, the Court
considers that customary international law continues to require that a State be
accorded immunity
Italys Second Argument: The Jus Cogens Nature of the Crime
Italy argued that Germany was not entitled to immunity because: (1) the acts which
gave rise to the claims constituted war crimes and crimes against humanity i.e.
serious violations of IHL; (2) these rules of international law were peremptory
norms (jus cogens); (3) these individuals were denied all other forms of redress (for
example, before German and Greek Courts) and, therefore, the exercise of jurisdiction
by the Italian courts was necessary as a last resort; and in its oral arguments Italy
argued that Italian courts could deny Germany immunity because of the combined
effect of all three arguments. The ICJ disagreed.
Denial of immunity on the basis that Acts amount to war crimes and crimes
against humanity
Italy argued that international law does not give immunity to a State, or at least
restricts its right to immunity, when that State has committed serious violations of IHL.
The ICJ held that Italys argument did not reflect customary international law. This was
supported by decisions of courts in Canada, France, Slovenia and the United
Kingdom, which rejected similar arguments relating to human rights law, war crimes or
crimes against humanity.
The ICJ said that the availability of immunity would not depend on the gravity of the
unlawful act or its jus cogens nature. The ICJ said that jurisdictional immunity is
preliminary in nature it determines if a State can be subjected to trial by a domestic
court of another country before the domestic court looks at the merits (and the gravity)
of the case.
Consequently, a national court is required to determine whether or not a foreign State
is entitled to immunity as a matter of international law before it can hear the merits of
the case brought before it and before the facts have been established. If immunity
were to be dependent upon the State actually having committed a serious violation of
international human rights law or the law of armed conflict, then it would become
necessary for the national court to hold an enquiry into the merits in order
to determine whether it had jurisdiction If, on the other hand, the mere allegation
that the State had committed such wrongful acts were to be sufficient to deprive the

State of its entitlement to immunity, immunity could, in effect be negated simply by

skilful construction of the claim.
Distinction from Pinochet case
The Court distinguished this case from the Pinochet case. As you would recall in the
Pinochet case Lord Brownie-Wilinson said the notion of continued immunity for
ex-heads of state is inconsistent with the provisions of the Torture convention
he ICJ, in this case said that:
The Court does not consider that the United Kingdom judgment in Pinochet is
relevant Pinochet concerned the immunity of a former Head of State from
the criminal jurisdiction of another State, not the immunity of the State itself in
proceedings designed to establish its liability to damages. The distinction between the
immunity of the official in the former type of case and that of the State in the latter
case was emphasized by several of the judges in Pinochet In its later judgment in
Jones v. Saudi Arabia, the House of Lords further clarified this distinction, Lord
Bingham describing the distinction between criminal and civil proceedings as
fundamental to the decision in Pinochet (para. 32). Moreover, the rationale for the
judgment in Pinochet was based upon the specific language of the 1984 United
Nations Convention against Torture, which has no bearing on the present case. In
reaching that conclusion, the Court must emphasize that it is addressing only the
immunity of the State itself from the jurisdiction of the courts of other States; the
question of whether, and if so to what extent, immunity might apply in criminal
proceedings against an official of the State is not in issue in the present case.
Denial of Immunity on the Basis of a Violation of a Jus Cogens Norm
Italy argued Germanys acts constituted violations of IHL rules, which were peremptory
norms (jus cogens). Therefore, there was a conflict between jus cogens rules and
according immunity to Germany. Since jus cogens rules always prevail over any
inconsistent rule of international law, whether contained in a treaty or in customary
international law and since the rule which accords one State immunity before the
courts of another does not have the status of jus cogens, the rule of immunity must
give way. The ICJ said that there was no conflict between jus cogens norms and
granting immunity.
This argument therefore depends upon the existence of a conflict between a rule, or
rules, of jus cogens, and the rule of customary law, which requires one State to accord
immunity to another. In the opinion of the Court, however, no such conflict exists.
Assuming for this purpose that the (relevant) rulesare rules of jus cogens, there is
no conflict between those rules and the rules on State immunity. The two sets of rules
address different matters. The rules of State immunity are procedural in character and
are confined to determining whether or not the courts of one State may exercise
jurisdiction in respect of another State. They do not bear upon the question whether or
not the conduct in respect of which the proceedings are brought was lawful or
unlawful.
The ICJ emphasised that recognizing the immunity of a foreign State does not amount
to recognizing as lawful a situation created by the breach of a jus cogens rule.
To the extent that it is argued that no rule which is not of the status of jus cogens may
be applied, if to do so would hinder the enforcement of a jus cogens rule, even in the
absence of a direct conflict, the Court sees no basis for such a proposition. A jus
cogens rule is one from which no derogation is permitted but the rules which
determine the scope and extent of jurisdiction and when that jurisdiction may
be exercised do not derogate from those substantive rules which possess jus
cogens status, nor is there anything inherent in the concept of jus cogens which would
require their modification or would displace their application. The Court has taken that
approach in two cases, notwithstanding that the effect was that a means by which a
jus cogens rule might be enforced was rendered unavailable. In Armed Activities (on
the Territory of the Congo case), it held that the fact that a rule has the status of jus
cogens does not confer upon the Court a jurisdiction which it would not otherwise
possess. In Arrest Warrant, the Court held, albeit without express reference to the
concept of jus cogens, that the fact that a Minister for Foreign Affairs was accused of
criminal violations of rules which undoubtedly possess the character of jus cogens did
not deprive the Democratic Republic of the Congo of the entitlement which it
possessed as a matter of customary international law to demand immunity on his
behalf The Court considers that the same reasoning is applicable to the application
of the customary international law regarding the immunity of one State from
proceedings in the courts of another.
The ICJ analysed national legislation and case law to determine that even on the
assumption that the proceedings in the Italian courts involved violations of jus cogens
rules, the applicability of the customary international law on State immunity was not
affected. a jus cogens norm cannot displace State immunity. [NB: The ICJ avoided
a discussion on the jus cogens status of the rules mentioned by Italy].
Denial of Immunity on Basis that Italian Courts were the Last Resort
Italy also argued that the alleged shortcomings in Germanys legislation in giving
reparations to Italian victims entitled the Italian courts to deprive Germany of
jurisdictional immunity.

In addition national courts have to determine questions of immunity at the outset of

the proceedings, before consideration of the merits. Immunity cannot, therefore, be
made dependent upon the outcome of a balancing exercise of the specific
circumstances of each case to be conducted by the national court before which
immunity is claimed. The third and final strand of the Italian argument is that the Italian
courts were justified in denying Germany the immunity to which it would otherwise
have been entitled, because all other attempts to secure compensation for the various
groups of victims involved in the Italian proceedings had failed.+
The ICJ held that there is no customary international law that makes the entitlement of
a State to immunity dependent upon the existence of effective alternative means of
securing redress.
Germanys obligations
The Court did not agree with the fact that Germany decided to deny compensation to a
group of victims through the operation and interpretation of its legislation.
Moreover, as the Court recalled that the immunity of State officials from criminal
proceedings, the fact that immunity may bar the exercise of jurisdiction in a particular
case does not alter the applicability of the substantive rules of international law. In that
context, the Court would point out that whether a State is entitled to immunity before
the courts of another State is a question entirely separate from whether the
international responsibility of that State is engaged and whether it has an obligation to
make reparation It [the ICJ] considers however that the claims arising from the
treatment of the Italian military internees together with other claimscould be the
subject of further negotiation involving the two States concerned, with a view to
resolving the issue.
Did Italy violate the customary international law obligation to respect the
jurisdictional immunity of Germany when it declared enforceable in Italy the
judgement of the Greek courts against Germany?

The court held that in this situation, Italy violated its obligation to respect Germanys
immunity. In its findings, the ICJ focused on:
(1) The ability of a national court (Italy) to determine if a judgement of a foreign court
(Greece) was made in violation of the jurisdictional immunity of a third State
(Germany)
The ICJ said that there is nothing to prevent national courts from ascertaining that a
foreign judgment has not breached the immunity of a third State, before looking to
enforce a judgement against that third state. The ICJ justified this on the basis that,
when an enforcement measure is requested against a third state, the national court is
itself being called upon to exercise its jurisdiction in respect of the third State. in
granting or refusing exequatur, the court exercises a jurisdictional power which results
in the foreign judgment being given effects corresponding to those of a judgment
rendered on the merits in the requested State.
the court seised of an application for exequatur of a foreign judgment rendered
against a third State has to ask itself whether the respondent State enjoys immunity
from jurisdiction having regard to the nature of the case in which that judgment was
given before the courts of the State in which exequatur proceedings have been
instituted. In other words, it has to ask itself whether, in the event that it had itself been
seised of the merits of a dispute identical to that which was the subject of the foreign
judgment, it would have been obliged under international law to accord immunity to
the respondent State.
The ICJ held that, in this case, it would not rule on the legality of the decisions of the
Greek courts because Greece was not a party to the current proceedings. It would
confine itself to the question whether Italy, when declaring enforceable the judgement
of the Greek courts, violated international law.
(2) The need for waiver of immunity before enforcement of a judgement
In doing its analysis as mentioned above, the national court may find that the
judgement did not violate the immunity of a third State. For example, in certain
situations, the third State may waive its immunity before the courts hearing the merits
of the case. However, a waiver of immunity at the trial stage does not imply that the
State has waived immunity in the exequatur proceedings (enforcement proceedings).
The rules of customary international law governing immunity from enforcement and
those governing jurisdictional immunity (understood stricto sensu as the right of a
State not to be the subject of judicial proceedings in the courts of another State) are
distinct, and must be applied separately. Even if a judgment has been lawfully
rendered against a foreign State, in circumstances such that the latter could not claim
immunity from jurisdiction (NB: for example acts falling under jus gestionis), it does not
follow ipso factothat the State against which judgment has been given can be the
subject of measures of constraint on the territory of the forum State or on that of a
third State, with a view to enforcing the judgment in question. Similarly, any waiver by
a State of its jurisdictional immunity before a foreign court does not in itself mean that
that State has waived its immunity from enforcement as regards property belonging to
it situated in foreign territory.

Therefore, before taking any measure of constraint against a property of a third State,
the court must be satisfied:
(1) that the property in question must be in use for an activity not pursuing
government non-commercial purposes, or
(2) that the State which owns the property has expressly consented to the taking of
a measure of constraint, or
(3) that that State has allocated the property in question for the satisfaction of a
judicial claim
The ICJ held that in the present case the property which was the subject of the
measure of constraint at issue is being used for governmental purposes that are
entirely non-commercial and hence for purposes falling within Germanys sovereign
functions. The court held that Italy violated Germanys immunity in this respect.
The Holy See Vs. Judge Rosario And Star Bright Sales Enterprises Incorporated
FACTS:
The parties to the case are the Holy See (petitioner) and Startbright Sales Enterprises,
Inc. (private respondent).
A parcel of land (Lot 5-A) in Metro Manila was registered under the name of the Holy
See. This parcel of land, together with 2 lots owned by the Philippine Realty
Corporation, was sold to Ramon Licup. The agreement to sell was made on the
condition that earnest money of P100,000.00 be paid by Licup, and that the sellers
clear the said lots of squatters who were then occupying the same. Licup paid the
earnest money then assigned his rights to the sale to Starbright. The sellers were not
able to evict the squatters from the land despite requests from Starbright so they
returned the earnest money to Starbright. Starbright returned the earnest money but
later found out about the sale of the 3 parcels of land to Tropicana Properties and
Development Corporation.
Starbright filed a complaint with the RTC of Makati, Metro Manila for annulment of the
sale of the three parcels of land to Tropicana, and specific performance and
damages against Holy See, the PRC and Tropicana.
A Motion to dismiss was filed by Holy See for lack of jurisdiction based on sovereign
immunity from suit.
RTC denied the motion to dismiss after finding that the Holy See shed off its
sovereign immunity by entering into the business contract in question.
The Holy See elevated the case to the SC.
HOLY SEE: RTC has no jurisdiction over it because of sovereign immunity.
STARBRIGHT: the Holy See has divested itself of the protection of the doctrine of
non-suability when it entered into a commercial transaction for the sale of a parcel of
land.
DFA filed a motion for intervention, claiming legal interest in the case with regard to the
diplomatic immunity of the Holy See.
ISSUE(S) and RULINGS:
1.
Whether the Holy See enjoys the protection of sovereign immunity despite
it having entered a contract of sale of land. Yes.
Two conflicting concepts of sovereign immunity: Classical or absolute theory a sovereign cannot, without its consent, be made a respondent in the courts of another
sovereign. Restrictive theory - the immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii of a state, but not with regard to private acts or
acts jure gestionis. The restrictive theory came about because of the entry of
sovereign states into purely commercial activities remotely connected with the
discharge of governmental functions.
Court prescribed GUIDELINES IN DEFINING WHAT ACTS SHALL BE
CONSIDERED COMMERCIAL OR JURE GESTIONIS: The mere entering into a
contract by a foreign state with a private party cannot be the ultimate test. The
logical question is whether the foreign state is engaged in the activity in the
regular course of business. If the foreign state is not engaged regularly in a
business or trade, the particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then
it is an act jure imperii, especially when it is not undertaken for gain or profit.
In the case at bench, if petitioner has bought and sold lands in the ordinary
course of a real estate business, surely the said transaction can be categorized as an
act jure gestionis. However, the Holy See has denied that the acquisition and
subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said
property for the site of its mission or the Apostolic Nunciature in the Philippines.
Starbright failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila
not for a commercial purpose, but for the Holy See to construct thereon the official
place of residence of the Papal Nuncio. The right of a foreign sovereign to acquire
property, real or personal, in a receiving state, necessary for the creation and
maintenance of its diplomatic mission, is recognized in the 1961 Vienna Convention on
Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine
Senate and entered into force in the Philippines on November 15, 1965.
The DFA has formally intervened in this case and officially certified that the
Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of the
Philippines exempt from local jurisdiction and entitled to all the rights, privileges and
immunities of a diplomatic mission or embassy in this country, thus sufficiently
establishing the Holy Sees privilege of sovereign immunity.
PRIVATE RESPONDENT IS NOT LEFT WITHOUT ANY LEGAL REMEDY FOR
THE REDRESS OF ITS GRIEVANCES. Under both Public International Law and
Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign
can ask his own government to espouse his cause through diplomatic channels.
Starbright can ask the Philippine government, to espouse its claims against the Holy
See. Its first task is to persuade the Philippine government to take up with the Holy

See the validity of its claims. Of course, the Foreign Office shall first make a
determination of the impact of its espousal on the relations between the Philippine
government and the Holy See. Once the Philippine government decides to espouse
the claim, the latter ceases to be a private cause.
Court considered it relevant to examine the Holy Sees status as a sovereign state: In
1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized
the exclusive dominion and sovereign jurisdiction of the Holy See over the Vatican
City. It established the statehood of the Vatican City "for the purpose of assuring to the
Holy See absolute and visible independence and of guaranteeing to it indisputable
sovereignty also in the field of international relations". The Republic of the Philippines
has accorded the Holy See the status of a foreign sovereign. The Holy See, through its
Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine
government since 1957. This appears to be the universal practice in international
relations.
2.
Whether the DFA has personality of legal interest to intervene in the case
in behalf of the Holy See.
In Public International Law, when a state or international agency wishes to plead
sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of
the state where it is sued to convey to the court that said defendant is entitled to
immunity.
In the Philippines, the practice is for the foreign government or the international
organization to first secure an executive endorsement of its claim of sovereign or
diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to
the courts varies.
In several cases the DFA just sent a letter directly to the Secretary of Labor and
Employment, informing the latter that the respondent-employer could not be sued
because it enjoyed diplomatic immunity or sent the trial court a telegram to that effect.
In the case at bench, the Department of Foreign Affairs, through the Office of Legal
Affairs moved with this Court to be allowed to intervene on the side of petitioner. The
Court allowed the said Department to file its memorandum in support of petitioner's
claim of sovereign immunity.
In cases where the foreign states bypass the Foreign Office, the courts can inquire into
the facts and make their own determination as to the nature of the acts and
transactions involved.
REPUBLIC OF INDONESIA vs. VINZON
Facts of the case:

Indonesia, represented by counsellor Siti Partinah, entered into a

Maintenance agreement with James Vinzon, the sole proprietor of Vinzon
Trade and Services.

The Maintenance agreements content:

For consideration, Vinzon shall maintain the following equipment at the
Embassy Main Building, Annex Building, and the official residence of
Ambassador Soeratmin, the Wisma Duta:
1.
AC unit
2.
Generator sets
3.
Electrical facilities
4.
Water heaters
5.
Water motor pumps.

That, the said agreement shall be effective for four years and will renew
itself automatically UNLESS cancelled by either party by giving prior
written notice from the date of expiry.
The petitioners informed the respondent that the renewal of the
agreement shall be at the discretion of the incoming Chief of
Administration, minister counsellor Azhari Kasim.
Kasim found Vinzons work and services unsatisfactory and not in the
compliance with the standards set in the MA.
Indonesian Embassy terminated the agreement in a letter. Indonesia also
informed Vinzon, verbally, of their decision to terminate the agreement.
Vinzon contended that the termination was arbitrary and unlawful.
Vinzon filed a complaint against the petitioner before the RTC of Makati.
Indonesian government filed a Motion to dismiss on the grounds that
Republic of Indonesia has sovereign immunity from suit and cannot be
sued as party defendant in the Philippines and that Ambassador
Soeratmin and Minister Counsellor Kasim are diplomatic agents as
defined under the Vienna Convention on Diplomatic Relations and
therefore enjoy diplomatic immunity.
Vinzon filed an opposition alleging that Indonesia has expressed its waiver
from its immunity from suit based on the agreement that any legal action
arising out of this Maintenance Agreement shall be settled according to
the laws of the Philippines and by the proper court of Makati. He alleged
also that Soeratim and KAsim can be sued and held liable in their private
capacities for acts done with malice and bad faith.
Decision of the RTC: Motion to Dismiss was denied, ruling that Indonesia
gave its consent to be sued and voluntarily submitted itself to the laws and
jurisdiction of Philippine courts and Soeratim and Kasim waived their
immunity from suit.
Decision of the CA: Motion for Reconsideration by Indonesia was denied
for lack of merit.
ISSUE:

1. Whether petitioners have waived their immunity from suit by using as its basis the
abovementioned provision in the Maintenance Agreement?
2. Whether the actual physical maintenance of the premises of the diplomatic mission,
such as the upkeep of its furnishings and equipment, is no longer a sovereign
function of the State?

Held:
1.

NO. International law is founded largely upon the principles of

reciprocity, comity, independence, and equality of States which were
adopted as part of the law of our land under Article II, Section 2 of
the 1987 Constitution.[8] The rule that a State may not be sued
without its consent is a necessary consequence of the principles of
independence and equality of States.[9] As enunciated in Sanders
v. Veridiano II,[10] the practical justification for the doctrine of
sovereign immunity is that there can be no legal right against the
authority that makes the law on which the right depends. In the
case of foreign States, the rule is derived from the principle of the
sovereign equality of States, as expressed in the maxim par in
parem non habet imperium. All states are sovereign equals and
cannot assert jurisdiction over one another.[11] A contrary attitude
would unduly vex the peace of nations.

The rules of International Law, however, are neither unyielding

nor impervious to change. The increasing need of sovereign States to
enter into purely commercial activities remotely connected with the
discharge of their governmental functions brought about a new concept of
sovereign immunity. This concept, the restrictive theory, holds that the
immunity of the sovereign is recognized only with regard to public acts or
acts jure imperii, but not with regard to private acts or acts jure gestionis.
The mere entering into a contract by a foreign State with a
private party cannot be construed as the ultimate test of whether or not it
is an act jure imperii or jure gestionis. Such act is only the start of the
inquiry. Is the foreign State engaged in the regular conduct of a business?
If the foreign State is not engaged regularly in a business or commercial
activity, and in this case it has not been shown to be so engaged, the
particular act or transaction must then be tested by its nature. If the act is
in pursuit of a sovereign activity, or an incident thereof, then it is an act
jure imperii.
Hence, the existence alone of a paragraph in a contract stating that any legal action
arising out of the agreement shall be settled according to the laws of the Philippines
and by a specified court of the Philippines is not necessarily a waiver of sovereign
immunity from suit. The aforesaid provision contains language not necessarily
inconsistent with sovereign immunity. On the other hand, such provision may also be
meant to apply where the sovereign party elects to sue in the local courts, or otherwise
waives its immunity by any subsequent act. The applicability of Philippine laws must
be deemed to include Philippine laws in its totality, including the principle recognizing
sovereign immunity. Hence, the proper court may have no proper action, by way of
settling the case, except to dismiss it.
Submission by a foreign state to local jurisdiction must be clear and unequivocal. It
must be given explicitly or by necessary implication. We find no such waiver in this
case.
Article 31 of the Vienna Convention on Diplomatic Relations provides:
xxx
1.
A diplomatic agent shall enjoy immunity from the
criminal jurisidiction of the receiving State. He
shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
(a)
a real action relating to private
immovable property situated in the
territory of the receiving State,
unless he holds it on behalf of the
sending State for the purposes of the
mission;
(b)
an action relating to succession in
which the diplomatic agent is
involved as executor, administrator,
heir or legatee as a private person
and not on behalf of the sending
State;
(c)
an action relating to any professional
or commercial activity exercised by
the diplomatic agent in the receiving
State outside his official functions.
xxx
The act of petitioners Ambassador Soeratmin and Minister Counsellor Kasim in
terminating the Maintenance Agreement is not covered by the exceptions provided in
the abovementioned provision.
2.

There is no dispute that the establishment of a diplomatic mission is

an act jure imperii. A sovereign State does not merely establish a
diplomatic mission and leave it at that; the establishment of a
diplomatic mission encompasses its maintenance and upkeep.
Hence, the State may enter into contracts with private entities to
maintain the premises, furnishings and equipment of the embassy
and the living quarters of its agents and officials. It is therefore
clear that petitioner Republic of Indonesia was acting in pursuit of a
sovereign activity when it entered into a contract with respondent for
the upkeep or maintenance of the air conditioning units, generator
sets, electrical facilities, water heaters, and water motor pumps of
the Indonesian Embassy and the official residence of the
Indonesian ambassador.

The Solicitor General, in his Comment, submits the view

that, the Maintenance Agreement was entered into by the Republic
of Indonesia in the discharge of its governmental functions. In such
a case, it cannot be deemed to have waived its immunity from suit.
As to the paragraph in the agreement relied upon by respondent,
the Solicitor General states that it was not a waiver of their
immunity from suit but a mere stipulation that in the event they do
waive their immunity, Philippine laws shall govern the resolution of
any legal action arising out of the agreement and the proper court in
Makati City shall be the agreed venue thereof.
WHEREFORE, the petition is hereby GRANTED. The decision and resolution of the
Court of Appeals in CA G.R. SP No. 66894 are REVERSED and SET ASIDE and the
complaint in Civil Case No. 18203 against petitioners is DISMISSED.

KHOSROW MINUCHER vs COURT OF APPEALS and ARTHUR SCALZO

be, in effect, suing the state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the maxim par in parem,
non habet imperium that all states are sovereign equals and cannot assert
jurisdiction over one another. The implication is that if the judgment against an official
would require the state itself to perform an affirmative act to satisfy the award, such as
the appropriation of the amount needed to pay the damages decreed against him, the
suit must be regarded as being against the state itself, although it has not been
formally impleaded
A foreign agent, operating within a territory, can be cloaked with immunity from suit but
only as long as it can be established that he is acting within the directives of the
sending state. The consent of the host state is an indispensable requirement of basic
courtesy between the two sovereigns.
The buy-bust operation and other such acts are indication that the Philippine
government has given its imprimatur, if not consent, to the activities within Philippine
territory of agent Scalzo of the United States Drug Enforcement Agency. In conducting
surveillance activities on Minucher, later acting as the poseur-buyer during the buybust operation, and then becoming a principal witness in the criminal case against
Minucher, Scalzo hardly can be said to have acted beyond the scope of his official
function or duties.

FACTS:
Khosrow Minucher, an Iranian national and a Labor Attach for the Iranian Embassies
in Tokyo, Japan and Manila came to the country to study in 1974 and continued to stay
as head of the Iranian National Resistance Movement.
In May 1986, Minucher was charged with an Information for violation of Republic Act
No. 6425, Dangerous Drugs Act of 1972. The criminal charge followed a buy-bust
operation conducted by the Philippine police narcotic agents in his house where a
quantity of heroin was said to have been seized. The narcotic agents were
accompanied by private respondent Arthur Scalzo who became one of the principal
witnesses for the prosecution.
In August 1988, Minucher filed Civil Case before the Regional Trial Court (RTC) for
damages on the trumped-up charges of drug trafficking made by Arthur Scalzo.
The trial court gave credence to the claim of Scalzo and the evidence presented by
him that he was a diplomatic agent entitled to such immunity; it ruled that he,
nevertheless, should be held accountable for the acts complained of committed
outside his official duties.

CASE CONCERNING UNITED STATES DIPLOMATIC AND

CONSULAR STAFF IN TEHRAN
Judgment of 24 May 1980
In its Judgment in the case concerning United States Diplomatic and Consular Staff in
Tehran, the Court decided (1) that Iran has violated and is skill violating obligations
owed by it to the United States; (2) that these violations engage Iran's responsibility;
(3) that the Government of Iran must immediately release the United States nationals
held as hostages and place the premises of the Embassy in the hands of the
protecting power; (4) that no member of the United States diplomatic or consular staff
may be kept in Iran to be subjected to any form of judicial proceedings or to participate
in them as a witness; (5) that Iran is under an obligation to make reparation for the
injury caused to the United States, and (6) that the form and amount of such
reparation, failing agreement between the parties, shall be settled by the Court. (The
full text of the operative paragraph is reproduced below.)
These decisions were adopted by large majorities: (1) and (2) - 13 votes to 2; (3) and
(4) - unanimously; (5) - 12 votes to 3; (6) - 14 votes to 1 (the votes are recorded by
name below).

On appeal, the Court of Appeals reversed the decision of the trial court and sustained
the defense of Scalzo that he was sufficiently clothed with diplomatic immunity during
his term of duty and thereby immune from the criminal and civil jurisdiction of the
"Receiving State" pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold
issue: (1) whether or not the doctrine of conclusiveness of judgment, following the
decision rendered by this Court in G.R. No. 97765, should have precluded the Court of
Appeals from resolving the appeal to it in an entirely different manner, and (2) whether
or not Arthur Scalzo is indeed entitled to diplomatic immunity. (Only the second issue
will be discussed as it is relevant to our topic on Immunity from Jurisdiction).
ISSUE:
WON private respondent Arthur Scalzo can be sued provided his alleged diplomatic
immunity conformably with the Vienna Convention on Diplomatic Relations
RULING:

*
**
A separate opinion was appended to the Judgment by Judge Lachs, who voted
against operative paragraph 5. Dissenting opinions were appended by Judge Morozov,
who voted against paragraphs 1, 2, 5 and 6, and by Judge Tarazi, who voted against
paragraphs 1, 2 and 5.
Procedure before the Court (paras. 1-10)
In its Judgment, the Court recalls that on 29 November 1979 the United States of
America had instituted proceedings against Iran in a case arising out of the situation at
its Embassy in Tehran and Consulates at Tabriz and Shiraz, and the seizure and
detention as hostages of its diplomatic and consular staff in Tehran and two more
citizens of the United States. The United States having at the same time requested the
indication of provisional measures, the Court, by a unanimous Order of 15 December
1979, indicated, pending final judgment, that the Embassy should immediately be
given back and the hostages released (see Press Communiqu No. 80/1).

No.
The SC DENIED the petition Minucher.
Conformably with the Vienna Convention, the functions of the diplomatic mission
involve the representation of the interests of the sending state and promoting friendly
relations with the receiving state. Only diplomatic agents, are vested with blanket
diplomatic immunity from civil and criminal suits. Indeed, the main yardstick in
ascertaining whether a person is a diplomat entitled to immunity is the determination of
whether or not he performs duties of diplomatic nature. Being an Attache, Scalzos
main function is to observe, analyze and interpret trends and developments in their
respective fields in the host country and submit reports to their own ministries or
departments in the home government. He is not generally regarded as a member of
the diplomatic mission. On the basis of an erroneous assumption that simply because
of the diplomatic note, divesting the trial court of jurisdiction over his person, his
diplomatic immunity is contentious.
Under the related doctrine of State Immunity from Suit, the precept that a State
cannot be sued in the courts of a foreign state is a long-standing rule of customary
international law. If the acts giving rise to a suit are those of a foreign government
done by its foreign agent, although not necessarily a diplomatic personage, but acting
in his official capacity, the complaint could be barred by the immunity of the foreign
sovereign from suit without its consent. Suing a representative of a state is believed to

The procedure then continued in accordance with the Statute and Rules of Court. The
United States filed a Memorial, and on 18, 19 and 20 March 1980 the Court held a
public hearing at the close of which the United States, in its final submissions,
requested it to adjudge and declare, inter alia,that the Iranian Government had
violated its international legal obligations to the United States and must: ensure the
immediate release of the hostages; afford the United States diplomatic and consular
personnel the protection and immunities to which they were entitled (including
immunity from criminal jurisdiction) and provide them with facilities to leave Iran;
submit the persons responsible for the crimes committed to the competent Iranian
authorities for prosecution, or extradite them to the United States; and pay the United
States reparation, in a sum to be subsequently determined by the Court.
Iran took no part in the proceedings. It neither filed pleadings nor was represented at
the hearing, and no submissions were therefore presented on its behalf. Its position
was however defined in two letters addressed to the Court by its Minister for Foreign
Affairs on 9 December 1979 and16 March 1980 respectively. In these the Minister
maintained inter alia that the Court could not and should not take cognizance of the
case.
The Facts (paras. 11-32)

The Court expresses regret that Iran did not appear before it to put forward its
arguments. The absence of Iran from the proceedings brought into operation Article 53
of the Statute, under which the Court is required, before finding in the Applicant's
favour, to satisfy itself that the allegations of fact on which the claim is based are well
founded.
In that respect the Court observes that it has had available to it, in the documents
presented by the United States, a massive body of information from various sources,
including numerous official statements of both Iranian and United States authorities.
This information, the Court notes, is wholly concordant as to the main facts and has all
been communicated to Iran without evoking any denial. The Court is accordingly
satisfied that the allegations of fact on which the United States based its claim were
well founded.
Admissibility (paras. 33-44)
Under the settled jurisprudence of the Court, it is bound, in applying Article 53 of its
Statute, to investigate, on its own initiative, any preliminary question of admissibility or
jurisdiction that may arise.
On the subject of admissibility, the Court, after examining the considerations put
forward in the two letters from Iran, finds that they do not disclose any ground for
concluding that it could not or should not deal with the case. Neither does it find any
incompatibility with the continuance of judicial proceedings before the Court in the
establishment by the Secretary-General of the United Nations, with the agreement of
both States, of a Commission given a mandate to undertake a fact-finding mission to
Iran, hear Iran's grievances and facilitate the solution of the crisis between the two
countries.
Jurisdiction (paras. 45-55)
Four instruments having been cited by the United States as bases for the Court's
jurisdiction to deal with its claims, the Court finds that three, namely the Optional
Protocols to the two Vienna Conventions of 1961 and 1963 on, respectively,
Diplomatic and Consular Relations, and the 1955 Treaty of Amity, Economic Relations,
and Consular Rights between the United States and Iran, do in fact provide such
foundations.
The Court, however, does not find it necessary in the present Judgment to enter into
the question whether Article 13 of the fourth instrument so cited, namely the 1973
Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons including Diplomatic Agents, provides a basis for the exercise of its
jurisdiction with respect to the United States' claims thereunder.
MERITS: Attributability to the Iranian State of the acts complained of, and violation by
Iran of certain obligations (paras. 56-94)
The Court has also, under Article 53 of its Statute, to satisfy itself that the claims of the
Applicant are well founded in law. To this end, it considers the acts complained of in
order to determine how far, legally, they may be attributed to the Iranian State (as
distinct from the occupiers of the Embassy) and whether they are compatible or
incompatible with Iran's obligations under treaties in force or other applicable rules of
international law.
(a) The events of 4 November 1979 (paras. 56-68)
The first phase of the events underlying the Applicant's claims covers the armed attack
on the United States Embassy carried out on 4 November 1979 by Muslim Student
Followers of the Imam's Policy (further referred to as "the militants" in the Judgment),
the overrunning of its premises, the seizure of its inmates as hostages, the
appropriation of its property and archives, and the conduct of the Iranian authorities in
the face of these occurrences.
The Court points out that the conduct of the militants on that occasion could be directly
attributed to the Iranian State only if it were established that they were in fact acting on
its behalf. The information before the Court did not suffice to establish this with due
certainty. However, the Iranian State - which, as the State to which the mission was
accredited, was under obligation to take appropriate steps to protect the United States
Embassy - did nothing to prevent the attack, stop it before it reached its completion or
oblige the militants to withdraw from the premises and release the hostages. This
inaction was in contrast with the conduct of the Iranian authorities on several similar
occasions at the same period, when they had taken appropriate steps. It constituted,
the Court finds, a clear and serious violation of Iran's obligations to the United States
under Articles 22 (2), 24, 25, 26, 27 and 29 of the 1961 Vienna Convention on
Diplomatic Relations, of Articles 5 and 36 of the 1963 Vienna Convention on Consular
Relations, and of Article 11 (4) of the 1955 Treaty. Further breaches of the 1963
Convention had been involved in failure to protect the Consulates at Tabriz and Shiraz.
The Court is therefore led to conclude that on 4 November 1979 the Iranian authorities
were fully aware of their obligations under the conventions in force, and also of the
urgent need for action on their part, that they had the means at their disposal to
perform their obligations, but that they completely failed to do so.
(b) Events since 4 November 1979 (paras. 69-79)

The second phase of the events underlying the United States' claims comprises the
whole series of facts which occurred following the occupation of the Embassy by the
militants. Though it was the duty of the Iranian Government to take every appropriate
step to end the infringement of the inviolability of the Embassy premises and staff, and
to offer reparation for the damage, it did nothing of the kind. Instead, expressions of
approval were immediately heard from numerous Iranian authorities. Ayatollah
Khomeini himself proclaimed the Iranian State's endorsement of both the seizure of
the premises and the detention of the hostages. He described the Embassy as a
"centre of espionage", declared that the hostages would (with some exceptions)
remain "under arrest" until the United States had returned the former Shah and his
property to Iran, and forbade all negotiation with the United States on the subject.
Once organs of the Iranian State had thus given approval to the acts complained of
and decided to perpetuate them as a means of pressure on the United States, those
acts were transformed into acts of the Iranian State: the militants became agents of
that State, which itself became internationally responsible for their acts. During the six
months which ensued, the situation underwent no material change: the Court's Order
of 15 December 1979 was publicly rejected by Iran, while the Ayatollah declared that
the detention of the hostages would continue until the new Iranian parliament had
taken a decision as to their fate.
The Iranian authorities' decision to continue the subjection of the Embassy to
occupation, and of its staff to detention as hostages, gave rise to repeated and
multiple breaches of Iran's treaty obligations, additional to those already committed at
the time of the seizure of the Embassy (1961 Convention: Arts. 22, 24, 25, 26, 27 and
29 1963 Convention: inter alia, Art. 33; 1955 Treaty, Art. II (4)).
With regard to the Charg d'affaires and the two other members of the United States
mission who have been in the Iranian Ministry of Foreign Affairs since 4 November
1979 the Court finds that the Iranian authorities have withheld from them the protection
and facilities necessary to allow them to leave the Ministry in safety. Accordingly, it
appears to the Court that in their respect there have been breaches of Articles 26 and
29 of the 1961 Vienna Convention.
Taking note, furthermore, that various Iranian authorities have threatened to have
some of the hostages submitted to trial before a court, or to compel them to bear
witness, the Court considers that, if put into effect, that intention would constitute a
breach of Article 31 of the same Convention.
(c) Possible existence of special circumstances (paras. 80-89)
The Court considers that it should examine the question whether the conduct of the
Iranian Government might be justified by the existence of special circumstances, for
the Iranian Minister for Foreign Affairs had alleged in his two letters to the Court that
the United States had carried out criminal activities in Iran. The Court considers that,
even if these alleged activities could be considered as proven, they would not
constitute a defence to the United States' claims, since diplomatic law provides the
possibility of breaking off diplomatic relations, or of declaring persona non
"rata members of diplomatic or consular missions who may be carrying on illicit
activities. The Court concludes that the Government of Iran had recourse to coercion
against the United States Embassy and its staff instead of making use of the normal
means at its disposal.
(d) International responsibility (paras. 90-92)
The Court finds that Iran, by committing successive and continuing breaches of the
obligations laid upon it by the Vienna Conventions of 1961 and 1963, the 1955 Treaty,
and the applicable rules of general international law, has incurred responsibility
towards the United States. As a consequence, there is an obligation on the part of the
Iranian State to make reparation for the injury caused to the United States. Since,
however, the breaches are still continuing, the form and amount of such reparation
cannot yet be determined.
At the same time the Court considers it essential to reiterate the observations it made
in its Order of 15 December 1979 on the importance of the principles of international
law governing diplomatic and consular relations. After stressing the particular gravity of
the case, arising out of the fact that it is not any private individuals or groups that have
set at naught the inviolability of an embassy, but the very government of the State to
which the mission is accredited, the Court draws the attention of the entire
international community to the irreparable harm that may be caused by events of the
kind before the Court. Such events cannot fail to undermine a carefully constructed
edifice of law the maintenance of which is vital for the security and well-being of the
international community.
(e) United States operation in Iran on 24-25 April 1980 (paras. 93 and 94)
With regard to the operation undertaken in Iran by United States military units on 2425 April 1980, the Court says that it cannot fail to express its concern. It feels bound to
observe that an operation undertaken in those circumstances, from whatever motive,
is of a kind calculated to undermine respect for the judicial process in international
relations. Nevertheless, the question of the legality of that operation can have no
bearing on the evaluation of Iran's conduct on 4 November 1979. The findings reached
by the Court are therefore not affected by that operation.
*
**

For these reasons, the Court gives the decision reproduced in full below.
OPERATIVE PART OF JUDGMENT
THE COURT,* [Composed as follows: President Sir Humphrey Waldock; VicePresident Elias; Judges Forster, Gros, Lachs, Morozov, Nagendra Singh, Ruda,
Mosler, Tarazi, Oda, Ago, El-Erian, Sette-Camara and Baxter.]
1. By thirteen votes [President Sir Humphrey Waldock; VicePresident Elias; Judges Forster, Gros, Lachs, Nagendra Singh, Ruda, Mosler, Oda,
Ago, El-Erian, Sette-Camara and Baxter.] to two [Judges Morozov and Tarazi.],

prevailed. Later, Hernandez entered Bolivar, and assumed command of the city. All of
the local officials had in the meantime left, and the vacant positions were filled by Gen.
Hernandez, who from that date, and during the period of the transactions complained
of, was the civil and military chief of the city and district. In October the revolutionists
took possession of the capital of Venezuela. The 'Crespo government', so called, was
formally recognized as the legitimate government of Venezuela by the United States.
George F. Underhill was a citizen of the United States, who had constructed a
waterworks system for the city of Bolivar, under a contract with the government, and
was engaged in supplying the place with water; and he also carried on a machiney
repair business. Some time after the entry of Gen. Hernandez, Underhill applied to him
for a passport to leave the city. Hernandez refused this request, until October 18th,
when a passport was given, and Underhill left the country.

Decides that the Islamic Republic of Iran, by the conduct which the Court has set out
in this Judgment, has violated in several respects, and is skill violating, obligations
owed by it to the United States of America under international conventions in force
between the two countries, as well as under long-established rules of general
international law;

Underhill filed a suit in the US to recover damages for the detention caused by reason
of the refusal to grant the passport, for his alleged confinement to his own house, and
for certain alleged assaults and affronts by the soldiers of Hernandez's army.

2. By thirteen votes [President Sir Humphrey Waldock; VicePresident Elias; Judges Forster, Gros, Lachs, Nagendra Singh, Ruda, Mosler, Oda,
Ago, El-Erian, Sette-Camara and Baxter.] to two [Judges Morozov and Tarazi.],

The circuit court of the United States for the Eastern district of New York ruled that the
plaintiff was not entitled to recover, and directed a verdict for defendant, on the ground
that 'because the acts of defendant were those of a military commander, representing
a de facto government in the prosecution of a war, he was not civilly responsible
therefor.

Decides that the violations of these obligations engage the responsibility of the Islamic
Republic of Iran towards the United States of America under international law;
3. Unanimously,
Decides that the Government of the Islamic Republic of Iran must immediately take all
steps to redress the situation resulting from the events of 4 November 1979 and what
followed from these events, and to that end:
(a) must immediately terminate the unlawful detention of the United States Charg
d'affaires and other diplomatic and consular staff and other United States nationals
now held hostage in Iran, and must immediately release each and every one and
entrust them to the protecting Power (Article 45 of the 1961 Vienna Convention on
Diplomatic Relations);
(b) must ensure that all the said persons have the necessary means of leaving Iranian
territory, including means of transport;
(c) must immediately place in the hands of the protecting Power the premises,
property, archives and documents of the United States Embassy in Tehran and of its
Consulates in Iran;
4. Unanimously,
Decides that no member of the United States diplomatic or consular staff may be kept
in Iran to be subjected to any form of judicial proceedings or to participate in them as a
witness;
5. By twelve votes [President Sir Humphrey Waldock; VicePresident Elias; Judges Forster, Gros, Nagendra Singh, Ruda, Mosler, Oda, Ago, ElErian, Sette-Camara and Baxter.] to three [JudgesLachs, Morozov and Tarazi.],
Decides that the Government of the Islamic Republic of ban is under an obligation to
make reparation to the Government of the United States of America for the injury
caused to the latter by the events of 4 November 1979 and what followed from these
events;
6. By fourteen votes [President Sir Humphrey Waldock; VicePresident Elias; Judges Forster, Gros, Lachs, Nagendra Singh, Ruda, Mosler, Tarazi,
Oda, Ago, El-Erian, Sette-Camara and Baxter.] to one [Judge Morozov.],
Decides that the form and amount of such reparation, failing agreement between the
Parties, shall be settled by the Court, and reserves for this purpose the subsequent
procedure in the case.
UNDERHILL v. HERNANDEZ

Principle:
The Act of State Doctrine says that a nation is sovereign within its own borders, and
its domestic actions may not be questioned in the courts of another nation.
Facts:
A revolution was initiated in Venezuela against the administration (Palacio as their
head), which the revolutionists (Crespo. Gen. Hernandez as their leader) claimed had
ceased to be the legitimate government. On August 1892, an engagement took place
between the armies of the two parties at Buena Vista. The troops under Hernandez

The circuit court of appeals affirmed the circuit courts decision upon the ground 'that
the acts of the defendant were the acts of the government of Venezuela, and as such
are not properly the subject of adjudication in the courts of another government.
Thereupon the cause was brought to the SC on certiorari.

Issue: Whether Underhill is entitled to recover damages through an action brought

before the court of the US. NO
Ruling:
Every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in judgment on the
acts of the government of another, done within its own territory. Redress of
grievances by reason of such acts must be obtained through the means open to
be availed of by sovereign powers as between themselves.
Nor can the principle be confined to lawful or recognized governments, or to cases
where redress can manifestly be had through public channels. The immunity of
individuals from suits brought in foreign tribunals for acts done within their own
states, in the exercise of governmental authority, whether as civil officers or as
military commanders, must necessarily extend to the agents of governments
ruling by paramount force as matter of fact. Where a civil war prevails (that is,
where the people of a country are divided into two hostile parties, who take up arms
and oppose one another by military force), generally speaking, foreign nations do not
assume to judge of the merits of the quarrel. If the party seeking to dislodge the
existing government succeeds, and the independence of the government it has
set up is recognized, then the acts of such government, from the
commencement of its existence, are regarded as those of an independent
nation. If the political revolt fails of success, still, if actual war has been waged,
acts of legitimate warfare cannot be made the basis of individual liability.
The acts complained of were the acts of a military commander representing the
authority of the revolutionary party as a government, which afterwards succeeded, and
was recognized by the United States. We think the circuit court of appeals was justified
in concluding 'that the acts of the defendant were the acts of the government of
Venezuela, and as such are not properly the subject of adjudication in the courts of
another government.'
STATE RESPONSIBILITY
Neer (USA) vs United Mexican states
Doctrine:
DENIAL OF JUSTICE.FAILURE TO APPREHEND OR PUNISH.INTERNATIONAL
STANDARD. In absence of evidence establishing that action of authorities in failing to
apprehend or punish those guilty of murder of American citizen amounted to an
outrage or such a failure to reach international standard that would be conceded by
every reasonable man, claim disallowed
Facts:
Paul Neer, was employed as superintendent of a mine in the vicinity of Guanacevi,
State of Durango,
Mexico. On November 16, 1924, about eight o'clock in the evening, when he and his
wife were proceeding on horseback from the village of Guanacevi to their home in the
neighborhood, they were stopped by a number of armed men who engaged Neer in a
conversation, which Mrs. Neer did not understand, in the midst of which bullets seem
to have been exchanged and Neer was killed. It is alleged that, on account of this
killing, his wife (Fay) and daughter (Pauline), American citizens, sustained damages in
the sum of $100,000.00; that the Mexican authorities showed an unwarrantable lack of
diligence or an unwarrantable lack of intelligent investigation in prosecuting the

culprits; and that therefore the Mexican Government ought to pay to the claimants the
said amount.
Issue:
WON the Mexican Government is liable for the death of Paul Neer for being negligent
in their investigation of his murder.
Ruling:
NO.
Without attempting to announce a precise formula, it is in the opinion of the
Commission possible to go a little further than the authors quoted, and to hold (first)
that the propriecy of governmental acts should be put to the test of international
standards, and (second) that the treatment of an alien, in order to constitute an
international delinquency, should amount to an outrage, to bad faith, to wilful neglect of
duty, or to an insufficiency of governmental action so far short of international
standards that every reasonable and impartial man would readily recognize its
insufficiency. Whether the insufficiency proceeds from deficient execution of an
intelligent law or from the fact that the laws of the country do not empower the
authorities to measure up to international standards is immaterial.
Ratio:
The grounds of liability limit its inquiry to whether there is convincing evidence either
(1) that the authorities administering the Mexican law acted in an outrageous way, in
bad faith, in wilful neglect of their duties, or in a pronounced degree of improper action,
or (2) that Mexican law rendered it impossible for them properly to fulfil their task.
No attempt is made to establish the second point. The first point is negatived by the
full record of police and judicial authorities produced by the Mexican Agent, though the
Commission feels bound to state once more that in its opinion better methods might
have been used. From this record it appears that the local authorities, on the very
night of the tragedy, November 16, went to the spot where the killing took place and
examined the corpse; that
on November 17 the Judge proceeded to the examination of some witnesses, among
them Mrs. Neer; that investigations were continued for several days; that arrests were
made of persons suspected; and that they were subsequently released for want of
evidence.
The Caire Claim FRANCE v MEXICO
FACTS
A detachment of 10 soldiers and their commanding officer were sent by Mexican
Government to Angangueo with instructions to protect some United States nationals
threatened by disturbances. Instead of carrying out the orders given them, when the
victim refused to give them a sum of money, they shot one of the aliens dead and then
took part with the rioting mob in the massacre of two others.
ISSUE
Whether the Mexican Government should assume international responsibility

...........I am interpreting the said principles in accordance with the doctrine of the
objective responsibility of the States, that is, the responsibility for the acts of the
officials or organs of a State, which may devolve upon it even in the absence of any
fault of its own. It is widely known that theoretical conceptions in this sphere have
advanced a great deal in recent times, and that the innovating work of Dionisio
Anzilotti in particular has paved the way for new ideas, which no longer rank the
responsibility of the State for the acts of its officials as subordinate to the question of
the fault attaching to the State itself. Without going into the question of whether these
new ideas, which are perhaps too absolute, may require some modifications in the
direction proposed by Dr. Karl Strupp, I can say that I regard them as perfectly correct
in that they tend to impute to the State, in international affairs, the responsibility for all
the acts committed by its officials or organs which constitute offences from the point of
view of the law of the nations, whether the official or organ in question has acted within
or exceeded the limits of his competence. It is generally agreed, as M. Bourquin has
rightly said, that acts committed by the officials and agent of a State entail the
international responsibility of that State, even if the perpetrator did not have specific
authorization. This responsibility does not find its justification in general principles --- I
mean those principles regulating the judicial organization of the State. The act of an
official is only judicially established as an act of State if such an act lies within the
officials sphere of competence. The act of an official operating beyond this
competence is not an act of State. It should not in principle, therefore, affect the
responsibility of the State. If it is accepted in international law that the position is
different, it is for reasons peculiar to the mechanism of international life; it is because it
is felt that international relations would become too difficult, too complicated and too
insecure if foreign States were obliged to take into account the often complex judicial
arrangements that regulate competence in the international affairs of a State.
But in order to be able to admit this so-called objective responsibility of the
State for acts committed by its officials or organs outside their competence, they must
have acted at least to all appearances as competent officials or organs, or they must
have used powers or methods appropriate to their official capacity.
If the principles stated above are applied to the present case, and if it is
taken into account that the perpetrators of the murder of M.J.B. Caire were military
personnel occupying the ranks of mayor and captain primero aided by a few
privates, it is found that the conditions of responsibility formulated above are
completely fulfilled. The officers in question, whatever their previous record,
consistently conducted themselves as officers in the brigade of the Villista General,
Tomas Urbina; in this capacity they began by exacting the remittance of certain sums
of money; they continued by having the victim taken to a barracks of the occupying
troops; and it was clearly because of the refusal of M. Caire to meet their repeated
demands that they finally shot him. Under these circumstances, there remains no
doubt that, even if they are to be regarded as having acted outside their competence,
which is by no means certain, and even if their superior officers issued a counter-order,
these two officers have involved the responsibility of the State, in view of the fact that
they acted in their capacity of officers and used the means placed at their disposition
by virtue of that capacity.
On these grounds, I have no hesitation in stating that in accordance with the most
authoritative doctrine supported by numerous arbitral awards, the events of 11
December 1914, which led to the death of M.J.B. Caire, fall within the category of acts
for which international responsibility devolves upon the State to which the perpetrators
of the injury are amenable.

HELD
CORFU CHANNEL CASE
YES
The Commission found:
... that the two officers, even if they are deemed to have acted outside
their competence... and even if their superiors countermanded an order, have involved
the responsibility of the State, since they acted under cover of their status as officers
and used means placed at their disposal on account of that status.
The Commission, presided over by van Vollehoven, ordered the
respondent Government to make good the injury and gave the following reasons for its
decision:
...we do not consider that the participation of the soldiers in the murder at
Angangueo can be regarded as acts of soldiers committed in their private capacity
when it is clear that at the time of the commission of these acts the men were on duty
under the immediate supervision and in the presence of a commanding officer.
Soldiers inflicting personal injuries or committing wanton destruction or looting always
act in disobedience of some rules laid down by superior authority. There could be no
liability whatever for such misdeeds if the view were taken that any acts committed by
soldiers in contravention of instructions must always be considered as personal acts.
It was indicated that the action of two officers who were incompetent according to the
municipal law had involved the responsibility of the State because they had "acted
under cover of their status as officers and used means placed at their disposal on
account of that status". It was added that "... in order for this responsibility ... of the
State for acts of its officials or organs committed outside the limits of their competence
to be acknowledged, the officials or organs concerned must have acted, apparently at
least, as competent officials or organs or else, when acting, have used authority or
means pertaining to their official status".
----------------------------------------------------------THE MORE DETAILED DECISION..

On October 22nd, 1946, two British cruisers and two destroyers entered the North
Corfu Strait. This channel in Albanian waters was regarded as safe: it had been swept
in 1944 and check-swept in 1945. One of the destroyers, the Saumarez, when off
Saranda, struc k a mine and was gravely damaged. The other destroyer, the Volage,
was sent to her assistance and, while towing her, struck another mine and was also
seriously damaged.Forty-five British officers and sailors lost their lives, and forty-two
others were wounded. An incident had already occurred in these waters on May 15th,
1946: an Albanian battery had fired in the direction of two British cruisers. The United
Kingdom Government had protested, stating that innocent passage through straits
is a right recognized by international law; the Albanian Government had replied
that foreign warships and merchant vessels had no right to pass through Albanian
territorial waters without prior authorization; and on August 2nd, 1946, the United
Kingdom Government had replied that if, in the future, fire was opened on a British
warship passing through the channel, the fire would be returned. After the explosions
on October 22nd, the United Kingdom Government sent a Note to Tirana announcing
its intention to sweep the Corfu Channel shortly. The reply was that this consent would
not be given unless the operation in question took place
outside Albanian territorial waters and that any sweep undertaken in those waters
would be a violation of Albania's sovereignty. The sweep effected by the British Navy
took place on November 12th/13th 1946, in Albanian territorial waters and within the
limits of the channel previously swept. Twenty-two moored mines were cut; they
were mines of the German GY type. The two Parties concluded a Special
Agreement asking the Court to give Judgment.
ISSUES
1. Is Albania responsible for the explosions, and is there a duty to pay compensation?
2. Has the United Kingdom violated international law by the acts of its Navy in
Albanian waters, first on the day on which the explosions occurred and, secondly, on
November 12 and 13, 1946, when it undertook a sweep of the Strait?
RULING
1. On the first question, Albania was responsible. The explosions were caused by
mines belonging to the minefield discovered on November 13th. The Court does not
feel that it need pay serious attention to the suggestion that Albania herself laid the

mines: that suggestion was only put forward pro memoria, without evidence in support,
and could not be reconciled with the undisputed fact that, on the whole Albanian
littoral, there are only a few launches and motor boats. The exclusive control
exercised by a State within its frontiers may make it impossible to furnish direct proof
of facts which would involve its responsibility in case of a violation of international
law. The State which is the victim must, in that case, be allowed a more liberal
recourse to inferences of fact and circumstantial evidence; such indirect evidence
must be regarded as of especial weight when based on a series of facts, linked
together and leading logically to a single conclusion. In the present case two series of
facts, which corroborate one another, have to be considered. The first relates to the
Albanian Government's attitude before and after the catastrophe. The laying of the
mines took place in a period in which it had shown its intention to keep a jealous
watch on its territorial waters and in which it was requiring prior authorization before
they were entered, this vigilance sometimes going so far as to involve the use of
force: all of which render the assertion of ignorance a priori improbable.
The second series of facts relates to the possibility of observing the mine laying
from the Albanian coast. Geographically, the channel is easily watched: it is dominated
by heights offering excellent observation points, and it runs close to the coast (the
nearest mine was 500 m. from the shore).
2. The United Kingdom did not violate Albanian sovereignty on October 22; but it
declared that it violated that sovereignty on November 12th/13th, and that this
declaration, in itself, constituted appropriate satisfaction. The Albanian claim to
make the passage of ships conditional on a prior authorization conflicts with the
generally admitted principle that States, in time of peace, have a right to send their
warships through straits used for international navigation between two parts of the
high seas, provided that the passage is innocent
The Court is of opinion that Albania would have been justified in view of these
exceptional circumstances, in issuing regulations in respect of the passage, but not
in prohibiting such passage or in subjecting it to the requirement of special
authorization. Albania has denied that the passage on October 22 was innocent. She
alleges that it was a political mission and that the methods employed, the number
of ships, their formation, armament, manoeuvres, etc. showed an intention to
intimidate. The Court concluded that the passage was innocent both in its principle,
since it was designed to affirm a right which had been unjustly denied, and in its
methods of execution, which were not unreasonable in view of the firing from the
Albanian battery on May 15th. As regards the operation on November 12th/13th, it was
executed contrary to the clearly expressed wish of the Albanian Government; it did not
have the consent of the international mine clearance organizations; it could not be
justified as the exercise of the right of innocent passage. The United Kingdom has
stated that its object was to secure the mines as quickly as possible for fear lest they
should be taken away by the authors of the mine laying or by the Albanian authorities:
this was presented either as a new and special application of the theory of
intervention, by means of which the intervening State was acting to facilitate the task
of the international tribunal, or as a method of self-protection or self-help. The Court
cannot accept these lines of defense. It can only regard the alleged right of
intervention as the manifestation of a policy of force which cannot find a place in
international law. As regards the notion of self-help, the Court is also unable to accept
it: between independent States the respect for territorial sovereignty is an
essential foundation for international relations. Certainly, the Court recognizes the
Albanian Government's complete failure to carry out its duties after the explosions and
the dilatory nature of its diplomatic Notes as extenuating circumstances for the action
of the United Kingdom. But, to ensure respect for international law, of which it is the
organ, the Court must declare that the action of the British Navy constituted a
violation of Albanian sovereignty. This declaration is in accordance with the request
made by Albania through her counsel and is in itself appropriate satisfaction

CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES

IN AND AGAINST NICARAGUA (NICARAGUA v. UNITED STATES OF AMERICA)
(MERITS)
Judgment of 27 June 1986
SUMMARY OF THE JUDGMENT
I. Qualits (paras. 1 to 17)
II. Background to the dispute (paras. 18-25)
III. The non-appearance of the Respondent and Article 53 of the Statute (paras. 26-31)
The Court recalls that subsequent to the delivery of its Judgment of 26 November
1984 on the jurisdiction of the Court and the admissibility of Nicaragua's Application,
the United States decided not to take part in the present phase of the proceedings.
This however does not prevent the Court from giving a decision in the case, but it has
to do so while respecting the requirements of Article 53 of the Statute, which provides
for the situation when one of the parties does not appear. The Court's jurisdiction being
established, it has in accordance with Article 53 to satisfy itself that the claim of the
party appearing is well founded in fact and law. In this respect the Court recalls certain
guiding principles brought out in a number of previous cases, one of which excludes
any possibility of a judgment automatically in favour of the party appearing. It also
observes that it is valuable for the Court to know the views of the non-appearing party,
even if those views are expressed in ways not provided for in the Rules of Court. The
principle of the equality of the parties has to remain the basic principle, and the Court
has to ensure that the party which declines to appear should not be permitted to profit
from its absence.
IV. Justiciability of the dispute (paras. 32-35)
The Court considers it appropriate to deal with a preliminary question. It has been
suggested that the questions of the use of force and collective self-defence raised in
the case fall outside the limits of the kind of questions the Court can deal with, in other
words that they are not justiciable. However, in the first place the Parties have not
argued that the present dispute is not a "legal dispute" within the meaning of Article 36,

paragraph 2, of the Statute, and secondly, the Court considers that the case does not
necessarily involve it in evaluation of political or military matters, which would be to
overstep proper judicial bounds. Consequently, it is equipped to determine these
problems.
V. The significance of the multilateral treaty reservation (paras. 36-56)
The United States declaration of acceptance of the compulsory jurisdiction of the Court
under Article 36, paragraph 2, of the Statute contained a reservation excluding from
operation of the declaration
"disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected
by the decision are also parties to the case before the Court, or (2) the United States
of America specially agrees to jurisdiction".
In its Judgment of 26 November 1984 the Court found, on the basis of Article 79,
paragraph 7, of the Rules of Court, that the objection to jurisdiction based on the
reservation raised "a question concerning matters of substance relating to the merits of
the case" and that the objection did "not possess, in the circumstances of the case, an
exclusively preliminary character". Since it contained both preliminary aspects and
other aspects relating to the merits, it had to be dealt with at the stage of the merits.
In order to establish whether its jurisdiction were limited by the effect of the reservation
in question, the Court has to ascertain whether any third States, parties to the four
multilateral treaties invoked by Nicaragua, and not parties to the proceedings, would
be "affected" by the Judgment. Of these treaties, the Court considers it sufficient to
examine the position under the United Nations Charter and the Charter of the
Organization of American States.
The Court examines the impact of the multilateral treaty reservation on Nicaragua's
claim that the United States has used force in breach of the two Charters. The Court
examines in particular the case of El Salvador, for whose benefit primarily the United
States claims to be exercising the right of collective self-defence which it regards as a
justification of its own conduct towards Nicaragua, that right being endorsed by the
United Nations Charter (Art. 51) and the OAS Charter (Art. 21). The dispute is to this
extent a dispute "arising under" multilateral treaties to which the United States,
Nicaragua and El Salvador are Parties. It appears clear to the Court that El Salvador
would be "affected" by the Court's decision on the lawfulness of resort by the United
States to collective self-defence.
As to Nicaragua's claim that the United States has intervened in its affairs contrary to
the OAS Charter (Art. 18) the Court observes that it is impossible to say that a ruling
on the alleged breach of the Charter by the United States would not "affect" El
Salvador.
Having thus found that El Salvador would be "affected" by the decision that the Court
would have to take on the claims of Nicaragua based on violation of the two Charters
by the United States, the Court concludes that the jurisdiction conferred on it by the
United States declaration does not permit it to entertain these claims. It makes it clear
that the effect of the reservation is confined to barring the applicability of these two
multilateral treaties as multilateral treaty law, and has no further impact on the sources
of international law which Article 38 of the Statute requires the Court to apply, including
customary international law.
VI. Establishment of the facts: evidence and methods employed by the Court (paras.
57-74)
The Court has had to determine the facts relevant to the dispute. The difficulty of its
task derived from the marked disagreement between the Parties, the non-appearance
of the Respondent, the secrecy surrounding certain conduct, and the fact that the
conflict is continuing. On this last point, the Court takes the view, in accordance with
the general principles as to the judicial process, that the facts to be taken into account
should be those occurring up to the close of the oral proceedings on the merits of the
case (end of September 1985).
With regard to the production of evidence, the Court indicates how the requirements of
its Statute - in particular Article 53 - and the Rules of Court have to be met in the case,
on the basis that the Court has freedom in estimating the value of the various
elements of evidence. It has not seen fit to order an enquiry under Article 50 of the
Statute. With regard to certain documentary material (press articles and various
books), the Court has treated these with caution. It regards than not as evidence
capable of proving facts, but as material which can nevertheless contribute to
corroborating the existence of a fact and be taken into account to show whether
certain facts are matters of public knowledge. With regard tostatements by
representatives of States, sometimes at the highest level, the Court takes the view that
such statements are of particular probative value when they acknowledge facts or
conduct unfavourable to the State represented by the person who made them. With
regard to the evidence of witnesses presented by Nicaragua - five witnesses gave oral
evidence and another a written affidavit-one consequence of the absence of the
Respondent was that the evidence of the witnesses was not tested by crossexamination. The Court has not treated as evidence any part of the testimony which
was a mere expression of opinion as to the probability or otherwise of the existence of
a fact not directly known to the witness. With regard in particular to affidavits and
sworn statements made by members of a Government, the Court considers that it can
certainly retain such parts of this evidence as may be regarded as contrary to the
interests or contentions of the State to which the witness has allegiance; for the rest
such evidence has to be treated with great reserve.
The Court is also aware of a publication of the United States State Department entitled
"Revolution Beyond Our Borders, Sandinista Intervention in Central America" which
was not submitted to the Court in any form or manner contemplated by the Statute and
Rules of Court. The Court considers that, in view of the special circumstances of this
case, it may, within limits, make use of information in that publication.
VII. The facts imputable to the United States (paras. 75 to 125)
1. The Court examines the allegations of Nicaragua that the mining of Nicaraguan
ports or waters was carried out by United States military personnel or persons of the
nationality of Latin American countries in the pay of the United States. After examining
the facts, the Court finds it established that, on a date in late 1983 or early 1984, the
President of the United States authorized a United States Government agency to lay
mines in Nicaraguan ports, that in early 1984 mines were laid in or close to the ports of
El Bluff, Corinto and Puerto Sandino, either in Nicaraguan internal waters or in its
territorial sea or both, by persons in the pay and acting on the instructions of that
agency, under the supervision and with the logistic support of United States agents;
that neither before the laying of the mines, nor subsequently, did the United States

Government issue any public and official warning to international shipping of the
existence and location of the mines; and that personal and material injury was caused
by the explosion of the mines, which also created risks causing a rise in marine
insurance rates.
2. Nicaragua attributes to the direct action of United States personnel, or persons in its
pay, operations against oil installations, a naval base, etc.,listed in paragraph 81 of the
Judgment. The Court finds all these incidents, except three, to be established.
Although it is not proved that any United States military personnel took a direct part in
the operations, United States agents participated in the planning, direction and
support. The imputability to the United States of these attacks appears therefore to the
Court to be established.
3. Nicaragua complains of infringement of its air space by United States military
aircraft. After indicating the evidence available, the Court finds that the only violations
of Nicaraguan air space imputable to the United States on the basis of the evidence
are high altitude reconnaissance flights and low altitude flights on 7 to 11 November
1984 causing "sonic booms".
With regard to joint military manoeuvres with Honduras carried out by the United
States on Honduran territory near the Honduras/Nicaragua frontier, the Court
considers that they may be treated as public knowledge and thus sufficiently
established.
4. The Court then examines the genesis, development and activities of the contra
force, and the role of the United States in relation to it. According to Nicaragua, the
United States "conceived, created and organized a mercenary army, the contra force".
On the basis of the available information, the Court is not able to satisfy itself that the
Respondent State "created" the contra force in Nicaragua, but holds it established that
it largely financed, trained, equipped, armed and organized the FDN, one element of
the force.
It is claimed by Nicaragua that the United States Government devised the strategy and
directed the tactics of the contra force, and provided direct combat support for its
military operations. In the light of the evidence and material available to it, the Court is
not satisfied that all the operations launched by the contra force, at every stage of the
conflict, reflected strategy and tactics solely devised by the United States. It therefore
cannot uphold the contention of Nicaragua on this point. The Court however finds it
clear that a number of operations were decided and planned, if not actually by the
United States advisers, then at least in close collaboration with them, and on the basis
of the intelligence and logistic support which the United States was able to offer. It is
also established in the Court's view that the support of the United States for the
activities of the contras took various forms over the years, such as logistic support the
supply of information on the location and movements of the Sandinista troops, the use
of sophisticated methods of communication, etc. The evidence does not however
warrant a finding that the United States gave direct combat support, if that is taken to
mean direct intervention by United States combat forces.
The Court has to determine whether the relationship of the contras to the United
States Government was such that it would be right to equate thecontras, for legal
purposes, with an organ of the United States Government, or as acting on behalf of
that Government. The Court considers that the evidence available to it is insufficient to
demonstrate the total dependence of the contras on United States aid. A partial
dependency, the exact extent of which the Court cannot establish, may be inferred
from the fact that the leaders were selected by the United States, and from other
factors such as the organisation, training and equipping of the force, planning of
operations, the choosing of targets and the operational support provided. There is no
clear evidence that the United States actually exercised such a degree of control as to
justify treating the contras as acting on its behalf.
5. Having reached the above conclusion, the Court takes the view that
the contras remain responsible for their acts, in particular the alleged violations by
them of humanitarian law. For the United States to be legally responsible, it would
have to be proved that that State had effective control of the operations in the course
of which the alleged violations were committed.
6. Nicaragua has complained of certain measures of an economic nature taken
against it by the Government of the United States, which it regards as an indirect form
of intervention in its internal affairs. Economic aid was suspended in January 1981,
and terminated in April 1981; the United States acted to oppose or block loans to
Nicaragua by international financial bodies; the sugar import quota from Nicaragua
was reduced by 90 percent in September 1983; and a total trade embargo on
Nicaragua was declared by an executive order of the President of the United States on
1 May 1985.
VIII. The conduct of Nicaragua (paras. 126-171)
The Court has to ascertain, so far as possible, whether the activities of the United
States complained of, claimed to have been the exercise of collective self-defence,
may be justified by certain facts attributable to Nicaragua.
1. The United States has contended that Nicaragua was actively supporting armed
groups operating in certain of the neighbouring countries,particularly in El Salvador,
and specifically in the form of the supply of arms, an accusation which Nicaragua has
repudiated. The Court first examines the activity of Nicaragua with regard to El
Salvador.
Having examined various evidence, and taking account of a number of concordant
indications, many of which were provided by Nicaragua itself, from which the Court
can reasonably infer the provision of a certain amount of aid from Nicaraguan territory,
the Court concludes that support for the armed opposition in El Salvador from
Nicaraguan territory was a fact up to the early months of 1981. Subsequently,
evidence of military aid from or through Nicaragua remains very weak, despite the
deployment by the United States in the region of extensive technical monitoring
resources. The Court cannot however conclude that no transport of or traffic in arms
existed. It merely takes note that the allegations of arms traffic are not solidly
established, and has not been able to satisfy itself that any continuing flow on a
significant scale took place after the early months of 1981.
Even supposing it were established that military aid was reaching the armed
opposition in El Salvador from the territory of Nicaragua, it skill remains to be proved
that such aid is imputable to the authorities of Nicaragua, which has not sought to
conceal the possibility of weapons crossing its territory, but denies that this is the result
of any deliberate official policy on its part. Having regard to the circumstances
characterizing this part of Central America, the Court considers that it is scarcely

possible for Nicaragua's responsibility for arms traffic on its territory to be automatically
assumed. The Court considers it more consistent with the probabilities to recognize
that an activity of that nature, if on a limited scale, may very well be pursued unknown
to the territorial government. In any event the evidence is insufficient to satisfy the
Court that the Government of Nicaragua was responsible for any flow of arms at either
period.
2. The United States has also accused Nicaragua of being responsible for crossborder military attacks on Honduras and Costa Rica. While not as fully informed on the
question as it would wish to be, the Court considers as established the fact that certain
trans-border military incursions are imputable to the Government of Nicaragua.
3. The Judgment recalls certain events which occurred at the time of the fall of
President Somoza, since reliance has been placed on them by the United States to
contend that the present Government of Nicaragua is in violation of certain
alleged assurances given by its immediate predecessor. The Judgment refers in
particular to the "Plan to secure peace" sent on 12 July 1979 by the "Junta of the
Government of National Reconstruction" of Nicaragua to the Secretary-General of the
OAS, mentioning, inter alia, its "firm intention to establish full observance of human
rights in our country" and "to call the first free elections our country has known in this
century". The United States considers that it has a special responsibility regarding the
implementation of these commitments.
IX. The applicable law: customary international law (paras. 172-182)
The Court has reached the conclusion (section V, in fine) that it has to apply the
multilateral treaty reservation in the United States declaration, the consequential
exclusion of multilateral treaties being without prejudice either to other treaties or other
sources of law enumerated in Article 38 of the Statute. In order to determine the law
actually to be applied to the dispute, it has to ascertain the consequences of the
exclusion of the applicability of the multilateral treaties for the definition of the content
of the customary international law which remains applicable.
The Court, which has already commented briefly on this subject in the jurisdiction
phase (I.C.J. Reports 1984, pp. 424 and 425, para. 73), develops its initial remarks. It
does not consider that it can be claimed, as the United States does, that all the
customary rules which may be invoked have a content exactly identical to that of the
rules contained in the treaties which cannot be applied by virtue of the United States
reservation. Even if a treaty norm and a customary norm relevant to the present
dispute were to have exactly the same content, this would not be a reason for the
Court to take the view that the operation of the treaty process must necessarily deprive
the customary norm of its separate applicability. Consequently, the Court is in no way
bound to uphold customary rules only in so far as they differ from the treaty rules
which it is prevented by the United States reservation from applying.
In response to an argument of the United States, the Court considers that the
divergence between the content of the customary norms and that of the treaty law
norms is not such that a judgment confined to the field of customary international law
would not be susceptible of compliance or execution by the parties.
X. The content of the applicable law (paras. 183 to 225)
1. Introduction: general observations (paras. 183-186)
The Court has next to consider what are the rules of customary law applicable to the
present dispute. For this purpose it has to consider whether a customary rule exists in
the opinio juris of States,and satisfy itself that it is confirmed by practice.
2. The prohibition of the use of force, and the right of self-defence (paras. 187 to 201)
The Court finds that both Parties take the view that the principles as to the use of force
incorporated in the United Nations Charter correspond, in essentials, to those found in
customary international law. They therefore accept a treaty-law obligation to refrain in
their international relations from the threat or use of force against the territorial integrity
or political independence of any State, or in any other manner inconsistent with the
purposes of the United Nations (Art. 2, para. 4, of the Charter). The Court has however
to be satisfied that there exists in customary law an opinio juris as to the binding
character of such abstention. It considers that this opinio juris may be deduced
from, inter alia, the attitude of the Parties and of States towards certain General
Assembly resolutions, and particularly resolution 2625 (XXV) entitled "Declaration on
Principles of International Law concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations". Consent to such
resolutions is one of the forms of expression of an opinio juris with regard to the
principle of non-use of force, regarded as a principle of customary international law,
independently of the provisions, especially those of an institutional kind, to which it is
subject on the treaty-law plane of the Charter.
The general rule prohibiting force established in customary law allows for certain
exceptions. The exception of the right of individual or collective self-defence is also, in
the view of States, established in customary law, as is apparent for example from the
terms of Article 51 of the United Nations Charter, which refers to an "inherent right",
and from the declaration in resolution 2625 (XXV). The Parties, who consider the
existence of this right to be established as a matter of customary international law,
agree in holding that whether the response to an attack is lawful depends on the
observance of the criteria of the necessity and the proportionality of the measures
taken in self-defence.
Whether self-defence be individual or collective, it can only be exercised in response
to an "armed attack". In the view of the Court, this is to be understood as meaning not
merely action by regular armed forces across an international border, but also the
sending by a State of armed bands on to the territory of another State, if such an
operation, because of its scale and effects, would have been classified as an armed
attack had it been carried out by regular armed forces. The Court quotes the definition
of aggression annexed to General Assembly resolution 3314 (XXIX) as expressing
customary law in this respect.
The Court does not believe that the concept of "armed attack" includes assistance to
rebels in the form of the provision of weapons or logistical or other support.
Furthermore, the Court finds that in customary international law, whether of a general
kind or that particular to the inter-American legal system, there is no rule permitting the
exercise of collective self-defence in the absence of a request by the State which is a
victim of the alleged attack, this being additional to the requirement that the State in
question should have declared itself to have been attacked.
3. The principle of non-intervention (paras. 202 to 209)
The principle of non-intervention involves the right of every sovereign State to conduct
its affairs without outside interference. Expressions of anopinio juris of States

regarding the existence of this principle are numerous. The Court notes that this
principle, stated in its own jurisprudence, has been reflected in numerous declarations
and resolutions adopted by international organizations and conferences in which the
United States and Nicaragua have participated. The text thereof testifies to the
acceptance by the United States and Nicaragua of a customary principle which has
universal application. As to the content of the principle in customary law, the Court
defines the constitutive elements which appear relevant in this case: a prohibited
intervention must be one bearing on matters in which each State is permitted, by the
principle of State sovereignty, to decide freely (for example the choice of a political,
economic, social and cultural system, and formulation of foreign policy). Intervention is
wrongful when it uses, in regard to such choices, methods of coercion, particularly
force, either in the direct form of military action or in the indirect form of support for
subversive activities in another State.
With regard to the practice of States, the Court notes that there have been in recent
years a number of instances of foreign intervention in one State for the benefit of
forces opposed to the government of that State. It concludes that the practice of States
does not justify the view that any general right of intervention in support of an
opposition within another State exists in contemporary international law; and this is in
fact not asserted either by the United States or by Nicaragua.
4. Collective counter-measures in response to conduct not amounting to armed
attack (paras. 210 and 211)
The Court then considers the question whether, if one State acts towards another in
breach of the principle of non-intervention, a third State may lawfully take action by
way of counter-measures which would amount to an intervention in the first State's
internal affairs. This would be analogous to the right of self-defence in the case of
armed attack, but the act giving rise to the reaction would be less grave, not
amounting to armed attack. In the view of the Court, under international law in force
today, States do not have a right of "collective" armed response to acts which do not
constitute an "armed attack".
5. State sovereignty (paras. 212 to 214)
Turning to the principle of respect for State sovereignty, the Court recalls that the
concept of sovereignty, both in treaty-law and in customary international law, extends
to the internal waters and territorial sea of every State and to the airspace above its
territory. It notes that the laying of mines necessarily affects the sovereignty of the
coastal State, and that if the right of access to ports is hindered by the laying of mines
by another State, what is infringed is the freedom of communications and of maritime
commerce.
6. Humanitarian law (paras. 215 to 220)
The Court observes that the laying of mines in the waters of another State without any
warning or notification is not only an unlawful act but also a breach of the principles of
humanitarian law underlying the Hague Convention No. VIII of 1907. This
consideration leads the Court on to examination of the international humanitarian law
applicable to the dispute. Nicaragua has not expressly invoked the provisions of
international humanitarian law as such, but has complained of acts committed on its
territory which would appear to be breaches thereof. In its submissions it has accused
the United States of having killed, wounded and kidnapped citizens of Nicaragua.
Since the evidence available is insufficient for the purpose of attributing to the United
States the acts committed by the contras, the Court rejects this submission.
The question however remains of the law applicable to the acts of the United States in
relation to the activities of the contrast Although Nicaragua has refrained from referring
to the four Geneva Conventions of 12 August 1949, to which Nicaragua and the United
States are parties, the Court considers that the rules stated in Article 3, which is
common to the four Conventions, applying to armed conflicts of a non-international
character, should be applied. The United States is under an obligation to "respect" the
Conventions and even to "ensure respect" for them, and thus not to encourage
persons or groups engaged in the conflict in Nicaragua to act in violation of the
provisions of Article 3. This obligation derives from the general principles of
humanitarian law to which the Conventions merely give specific expression.
7. The 1956 treaty (paras. 221 to 225)
In its Judgment of 26 November 1984, the Court concluded that it had jurisdiction to
entertain claims concerning the existence of a dispute between the United States and
Nicaragua as to the interpretation or application of a number of articles of the treaty of
Friendship, Commerce and Navigation signed at Managua on 21 January 1956. It has
to determine the meaning of the various relevant provisions, and in particular of Article
XXI, paragraphs I (c) and I (d), by which the parties reserved the power to derogate
from the other provisions.
XI. Application of the law to the facts (paras. 226 to 282)
Having set out the facts of the case and the rules of international law which appear to
be in issue as a result of those facts, the Court has now to appraise the facts in
relation to the legal rules applicable, and determine whether there are present any
circumstances excluding the unlawfulness of particular acts.
1. The prohibition of the use of force and the right of self-defence (paras. 227 to 238)
Appraising the facts first in the light of the principle of the non-use of force, the Court
considers that the laying of mines in early 1984 and certain attacks on Nicaraguan
ports, oil installations and naval bases, imputable to the United States constitute
infringements of this principle, unless justified by circumstances which exclude their
unlawfulness. It also considers that the United States has committed a prima facie
violation of the principle by arming and training the contras, unless this can be justified
as an exercise of the right of self-defence.
On the other hand, it does not consider that military manoeuvres held by the United
States near the Nicaraguan borders, or the supply of funds to the contras, amounts to
a use of force.
The Court has to consider whether the acts which it regards as breaches of the
principle may be justified by the exercise of the right of collective self-defence, and has
therefore to establish whether the circumstances required are present. For this, it
would first have to find that Nicaragua engaged in an armed attack against El
Salvador, Honduras or Costa Rica, since only such an attack could justify reliance on
the right of self-defence. As regards El Salvador, the Court considers that in customary
international law the provision of arms to the opposition in another State does not
constitute an armed attack on that State. As regards Honduras and Costa Rica, the
Court states that, in the absence of sufficient information as to the transborder
incursions into the territory of those two States from Nicaragua, it is difficult to decide

whether they amount, singly or collectively, to an armed attack by Nicaragua. The

Court finds that neither these incursions nor the alleged supply of arms may be relied
on as justifying the exercise of the right of collective self-defence.
Secondly, in order to determine whether the United States was justified in exercising
self-defence, the Court has to ascertain whether the circumstances required for the
exercise of this right of collective self-defence were present, and therefore considers
whether the States in question believed that they were the victims of an armed attack
by Nicaragua, and requested the assistance of the United States in the exercise of
collective self-defence. The Court has seen no evidence that the conduct of those
States was consistent with such a situation.
Finally, appraising the United States activity in relation to the criteria of necessity and
proportionality, the Court cannot find that the activities in question were undertaken in
the light of necessity, and finds that some of them cannot be regarded as satisfying the
criterion of proportionality.
Since the plea of collective self-defence advanced by the United States cannot be
upheld, it follows that the United States has violated the principle prohibiting recourse
to the threat or use of force by the acts referred to in the first paragraph of this section.
2. The principle of non-intervention (paras. 239 to 245)
The Court finds it clearly established that the United States intended, by its support of
the contras, to coerce Nicaragua in respect of matters in which each State is permitted
to decide freely, and that the intention of the contras themselves was to overthrow the
present Government of Nicaragua. It considers that if one State, with a view to the
coercion of another State, supports and assists armed bands in that State whose
purpose is to overthrow its government, that amounts to an intervention in its internal
affairs, whatever the political objective of the State giving support. It therefore finds
that the support given by the United States to the military and paramilitary activities of
the contras in Nicaragua, by financial support, training, supply of weapons, intelligence
and logistic support, constitutes a clear breach of the principle of non-intervention.
Humanitarian aid on the other hand cannot be regarded as unlawful intervention. With
effect from 1 October 1984, the United States Congress has restricted the use of funds
to "humanitarian assistance" to the contrast The Court recalls that if the provision of
"humanitarian assistance" is to escape condemnation as an intervention in the internal
affairs of another State, it must be limited to the purposes hallowed in the practice of
the Red Cross, and above all be given without discrimination.
With regard to the form of indirect intervention which Nicaragua sees in the taking of
certain action of an economic nature against it by the United States, the Court is
unable to regard such action in the present case as a breach of the customary law
principle of non-intervention.
3. Collective counter-measures in response to conduct not amounting to armed
attack (paras. 246 to 249)
Having found that intervention in the internal affairs of another State does not produce
an entitlement to take collective counter-measures involving the use of force, the Court
finds that the acts of which Nicaragua is accused, even assuming them to have been
established and imputable to that State, could not justify counter-measures taken by a
third State, the United States, and particularly could not justify intervention involving
the use of force.
4. State sovereignty (paras. 250 to 253)
The Court finds that the assistance to the contras, the direct attacks on Nicaraguan
ports, oil installations, etc., the mining operations in Nicaraguan ports, and the acts of
intervention involving the use of force referred to in the Judgment, which are already a
breach of the principle of non-use of force, are also an infringement of the principle of
respect for territorial sovereignty. This principle is also directly infringed by the
unauthorized overflight of Nicaraguan territory. These acts cannot be justified by the
activities in El Salvador attributed to Nicaragua; assuming that such activities did in
fact occur, they do not bring into effect any right belonging to the United States. The
Court also concludes that, in the context of the present proceedings, the laying of
mines in or near Nicaraguan ports constitutes an infringement, to Nicaragua's
detriment, of the freedom of communications and of maritime commerce.
5. Humanitarian law (paras. 254 to 256)
The Court has found the United States responsible for the failure to give notice of the
mining of Nicaraguan ports.
It has also found that, under general principles of humanitarian law, the United States
was bound to refrain from encouragement of persons or groups engaged in the conflict
in Nicaragua to commit violations of common Article 3 of the four Geneva Conventions
of 12 August 1949. The manual on "Psychological Operations in Guerrilla Warfare", for
the publication and dissemination of which the United States is responsible, advises
certain acts which cannot but be regarded as contrary to that article.
6. Other grounds mentioned in justification of the acts of the United States (paras. 257
to 269)
The United States has linked its support to the contras with alleged breaches by the
Government of Nicaragua of certain solemn commitments to the Nicaraguan people,
the United States and the OAS. The Court considers whether there is anything in the
conduct of Nicaragua which might legally warrant counter-measures by the United
States in response to the alleged violations. With reference to the "Plan to secure
peace" put forward by the Junta of the Government of National Reconstruction
(12 July 1979), the Court is unable to find anything in the documents and
communications transmitting the plan from which it can be inferred that any legal
undertaking was intended to exist. The Court cannot contemplate the creation of a
new rule opening up a right of intervention by one State against another on the ground
that the latter has opted for some particular ideology or political system. Furthermore
the Respondent has not advanced a legal argument based on an alleged new principle
of "ideological intervention".
With regard more specifically to alleged violations of human rights relied on by the
United States, the Court considers that the use of force by the United States could not
be the appropriate method to monitor or ensure respect for such rights, normally
provided for in the applicable conventions. With regard to the alleged militarization of
Nicaragua, also referred to by the United States to justify its activities, the Court
observes that in international law there are no rules, other than such rules as may be
accepted by the State concerned, by treaty or otherwise, whereby the level of
armaments of a sovereign State can be limited, and this principle is valid for all States
without exception.
7. The 1956 Treaty (paras. 270 to 282)

The Court turns to the claims of Nicaragua based on the Treaty of Friendship,
Commerce and Navigation of 1956, and the claim that the United States has deprived
the Treaty of its object and purpose and emptied it of real content. The Court cannot
however entertain these claims unless the conduct complained of is not "measures . . .
necessary to protect the essential security interests" of the United States, since Article
XXI of the Treaty provides that the Treaty shall not preclude the application of such
measures. With regard to the question what activities of the United States might have
been such as to deprive the Treaty of its object and purpose, the Court makes a
distinction. It is unable to regard all the acts complained of in that light, but considers
that there are certain activities which undermine the whole spirit of the agreement.
These are the mining of Nicaraguan ports, the direct attacks on ports, oil installations,
etc., and the general trade embargo.
The Court also upholds the contention that the mining of the ports is in manifest
contradiction with the freedom of navigation and commerce guaranteed by Article XIX
of the Treaty. It also concludes that the trade embargo proclaimed on 1 May 1985 is
contrary to that article.
The Court therefore finds that the United States is prima facie in breach of an
obligation not to deprive the 1956 Treaty of its object and purpose(pacta sunt
servanda), and has committed acts in contradiction with the terms of the Treaty. The
Court has however to consider whether the exception in Article XXI concerning
"measures . . . necessary to protect the essential security interests" of a Party may be
invoked to justify the acts complained of. After examining the available material,
particularly the Executive Order of President Reagan of 1 May 1985, the Court finds
that the mining of Nicaraguan ports, and the direct attacks on ports and oil
installations, and the general trade embargo of 1 May 1985, cannot be justified as
necessary to protect the essential security interests of the United States.
XII. The claim for reparation (paras. 283 to 285)
The Court is requested to adjudge and declare that compensation is due to Nicaragua,
the quantum thereof to be fixed subsequently, and to award to Nicaragua the sum of
370.2 million US dollars as an interim award. After satisfying itself that it has
jurisdiction to order reparation, the Court considers appropriate the request of
Nicaragua for the nature and amount of the reparation to be determined in a
subsequent phase of the proceedings. It also considers that there is no provision in the
Statute of the Court either specifically empowering it or debarring it from making an
interim award of the kind requested. In a cases in which one Party is not appearing,
the Court should refrain from any unnecessary act which might prove an obstacle to a
negotiated settlement. The Court therefore does not consider that it can accede at this
stage to this request by Nicaragua.
XIII. The provisional measures (paras. 286 to 289)
After recalling certain passages in its Order of 10 May 1984, the Court concludes that
it is incumbent on each Party not to direct its conduct solely by reference to what it
believes to be its rights. Particularly is this so in a situation of armed conflict where no
reparation can efface the results of conduct which the Court may rule to have been
contrary to international law
XIV. Peaceful settlement of disputes; the Contadora process (paras. 290 to 291)
In the present case the Court has already taken note of the Contadora process, and of
the fact that it had been endorsed by the United Nations Security Council and General
Assembly, as well as by Nicaragua and the United States. It recalls to both Parties to
the present case the need to co-operate with the Contadora efforts in seeking a
definitive and lasting peace in Central America, in accordance with the principle of
customary international law that prescribes the peaceful settlement of international
disputes, also endorsed by Article 33 of the United Nations Charter.
HOME FRONTIER AND FOREIGN MISSIONARY SOCIETY OF THE
UNITED BRETHREN IN CHRIST (UNITED STATES)
v. GREAT BRITAIN
(December 18, 1920. Pages 423-426.)
COLONIAL TAX POLICY.EXERCISE OF SOVEREIGNTY. Imposition of hut tax
a fiscal measure in accordance with general usage in colonial administration
and usual practice in African countries, to which British Government perfectly
entitled in legitimate exercise of sovereignty.
MOB VIOLENCE.GOOD FAITH, NEGLIGENCE, STANDARDS OF PROTECTION
OF ALIENS.AWARENESS OF RISK. Claim in respect of losses and damages
during native rebellion in 1898 in British Protectorate of Sierra Leone. No
Government responsible for act of rebellious bodies of men committed in
violation of its authority, where it is itself guilty of no breach of good faith,
or of no negligence in suppressing insurrection. Good faith of British Government
cannot be questioned, and from outbreak of insurrection British
authorities took every measure available for repression. Impossible to judge
system of police and protection of life and property in savage regions of
Africa by standard of highly civilized countries or cities. Missionary Society
must have been aware of perils to which it exposed itself. Great Britain
held not responsible.
EXTRAJUDICIAL ACTION. Tribunal recommends that Great Britain repair
losses as far as possible as an act of grace.
This is a claim for 178,068.15 together with interest thereon from May 30,
1898, presented by the United States Government on behalf of an American
religious body known as the "Home Frontier and Foreign Missionary Society
of the United Brethren in Christ". The claim is in respect of losses and damages
sustained by that body and some of its members during a native rebellion in
1898 in the British Protectorate of Sierra Leone.
The facts are few and simple.
111 1898 the collection of a tax newly imposed on the natives of the Protectorate
and known as the "hut tax" was the signal for a serious and widespread
revolt in the Ronietta district. The revolt broke out on April 27 and lasted for
several days. As is common in the more uncivilized parts of Africa, it was marked

by every circumstance of cruelty and by undiscriminating attacks on the persons

and properties of all Europeans.
In the Ronietta district, which was the centre of the rebellion, the Home
Missionary Society had several establishments: the Bompeh Mission at Rotofunk
and Tiama, the Sherbro-Mendi Mission at Shengeh, the Avery Mission
at Avery, and the Imperreh Mission at Danville and Momaligi.
In the course of the rebellion all these missions were attacked, and either
destroyed or damaged, and some of the missionaries were murdered.
The rising was quickly suppressed, and law and order enforced with firmness
and promptitude. In September, October, and November such of the guilty
natives as could be caught were prosecuted and punished. (British answer,
annexes 15, 16, and 17.)
A Royal Commissioner was appointed by the British Government to inquire
into the circumstances of the insurrection and into the general position of affairs
in the Colony and Protectorate.
On the receipt of his report, as well as of one from the Colonial Governor,
the Secretary of State for the Colonies came to the conclusion that though
some mistakes might have been made in its execution, the line of policy pursued
was right in its main outlines and that the scheme of administration, as revised
in the light of experience, would prove a valuable instrument for the peaceful
development of the Protectorate and the civilization and well-being of its
inhabitants (British Blue Book, Sierra Leone, C. 9388 and 1899, part 1, p. 175).
On February 21, 1899, the United States Government (British answer,
annex 39,) through its Embassy in London, brought the fact of the losses
sustained by the Home Missionary Society to the attention of the British Government.
In his reply on October 14, 1899, Lord Salisbury repudiated liability
on behalf of the British Government with an expression of regret that sensible
as it was of the worth of the services of the American missionaries, there was no
fund from which, as an act of grace, compensation could be awarded.
The contention of the United States Government before this Tribunal is
that the revolt was the result of the imposition and attempted collection of the
"hut tax"; that it was within the knowledge of the British Government that
this tax was the object of deep native resentment; that in the face of the native
danger the British Government wholly failed to take proper steps for the maintenance
of order and the protection of life and property; that the loss of life
and damage to property was the result of this neglect and failure of duty, and
therefore that it is liable to pay compensation.
Now, even assuming that the "hut tax" was the effective cause of the native
rebellion, it was in itself a fiscal measure in accordance not only with general
usage in colonial administration, but also with the usual practice in African
countries (Wallis. Advance of our West African Empire, p. 40).
It was a measure to which the British Government was perfectly entitled
to resort in the legitimate exercise of its sovereignty, if it was required. Its
adoption was determined by the course of its policy and system of administration.
Of these requirements it alone could judge.
Further, though it may be true that some difficulty might have been foreseen,
there was nothing to suggest that it would be more serious than is usual
and inevitable in a semi-barbarous and only partially colonized protectorate,
and certainly nothing to lead to any apprehension of widespread revolt.
It is a well-established principle of international law that no government
can be held responsible for the act of rebellious bodies of men committed in
violation of its authority, where it is itself guilty of no breach of good faith, or
of no negligence in suppressing insurrection. (Moore's International Law
Digest, vol. VI, p. 956; VII, p. 957; Moore's Arbitrations, pp. 2991-92; British
answer, p. 1.)
The good faith of the British Government can not be questioned, and as to
the conditions prevailing in the Protectorate there is no evidence to support
the contention that it failed in its duty to afford adequate protection for life
and property. As has been said with reference to circumstances very similar,
"it would be almost impossible for any government to prevent such acts by
omnipresence of its forces" (Sir Edward Thornton-Moore's Arbitrations,
pp. 3-38).
It is true that the Royal Commissioner criticized in his report the mode of
application, of certain measures. But there is no evidence of any criticisms
directed at the police organization, or the measures taken for the protection
of Europeans. On the contrary, it is clear that from the outbreak of the insurrection
the British authorities took every measure available for its repression.
Despite heavy losses, the troops in the area of revolt were continually increased.
But communication was difficult; the risings occurred simultaneously in many
districts remote from one another and from any common centre; and it was
impossible at a few days' or a few hours' notice to afford full protection to the
buildings and properties in every isolated and distant village. It is impossible
to judge the system of police and protection of life and property in force in the
savage regions of Africa by the standard of countries or cities which enjoy the
social order, the respect for authority, and the settled administration of a high
civilization. A Government can not be held liable as the insurer of lives and
property under the circumstances presented in this case (see Wipperman case,
Ralston's International Law and Procedure, No. 491, p. 231).
No lack of promptitude or courage is alleged against the British troops. On
the contrary the evidence of eye-witnesses proves that under peculiarly difficult
and trying conditions they did their duty with loyalty and daring, and
upheld the highest traditions of the British army.
Finally it is obvious that the Missionary Society must have been aware of
the difficulties and perils to which it exposes itself in its task of carrying Christianity
to so remote and barbarous a people. The contempt for difficulty and
peril is one of the noblest sides of their missionary zeal. Indeed, it explains why
they are able to succeed in fields which mere commercial enterprise can not
be expected to enter.
For these reasons, the Tribunal is of opinion that the claim presented by the
United States Government on behalf of the Home Missionary Society has no

foundation in law and must be dismissed.

But if His Britannic Majesty's Government in consideration of the service
which the Home Missionary Society has rendered and is still rendering in the
peaceful development of the Protectorate and the civilization of its inhabitants,
and of the support its activities deserve, can avail itself of any fund from which
to repair as far as possible the losses sustained in the native revolt, it would be
an act of grace which this Tribunal can not refrain from recommending warmly
to the generosity of that Government.
For these reasons and subject to this recommendation

Mandate were occupied by Israel in 1967 during the armed conflict between Israel and
Jordan. Under customary international law, the Court observes, these were therefore
occupied territories in which Israel had the status of occupying Power. Subsequent
events in these territories have done nothing to alter this situation. The Court
concludes that all these territories (including East Jerusalem) remain occupied
territories and that Israel has continued to have the status of occupying Power

SHORT V IRAN
U.S v. Iran (1987)

Relevant rules and principles of international law (paras. 86-113) It then turns to
the determination of the rules and principles of international law which are relevant in
assessing the legality of the measures taken by Israel. It observes that such rules and
principles can be found in the United Nations Charter and certain other treaties, in
customary international law and in the relevant resolutions adopted pursuant to the
Charter by the General Assembly and the Security Council. It is aware, however, that
doubts have been expressed by Israel as to the applicability in the Occupied
Palestinian Territory of certain rules of international humanitarian law and human rights
instruments.

Alfred L.W. Short claims less than US$250,000 from government of Iran as presented
by the United States of America v. The Islamic Republic of Iran decided on July 14,
1987.
The claimant, Short, is an American national who was employed by Lockheed that is
an American company in Iran. However, on February 8, 1979 he was evacuated from
Iran on company orders due to the situation. The evacuation was 3 days before the
Islamic Revolutionary Government took office.
The claimant seeks compensation for salary and other losses resulting from his
alleged expulsion contrary to international law. He relies on acts committed by the
revolutionaries and declarations made by the revolution leader, Ayatollah Khomeini.
The issue is whether or not the overthrown government or the successor government
is responsible for the claims
The tribunal decided, Where a revolution leads to the establishment of a new
government, the State is held responsible for the acts of the overthrown government
insofar as the latter maintained control of the situation. The successor government is
also held responsible for the acts imputable to the revolutionary movement which
established it, even if those acts occurred prior to its establishment, as a consequence
of the continuity existing between the new organization of the State and the
organization of the revolutionary movement.
However, in this case the claimant failed to identify the agent of the revolutionary
movement who acted and compelled him to leave Iran. The declaration of
revolutionary leader was noted by the Tribunal as pronouncements of a general nature
and did not specify that Americans should be expelled en masse. The acts of the
supporters of a revolution [as opposed to its agents] cannot be attributed to the
government following the success of the revolution just as the acts of the supporters of
an existing government are not attributable to the government.
The view of the Tribunal is that the claimant failed to prove that his departure from Iran
can be imputed to the wrongful conduct of Iran.
The claim is therefore dismissed.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory (Request for advisory opinion) Summary of the Advisory Opinion of 9
July 2004
History of the proceedings (paras. 1-12)
The Court first recalls that on 10 December 2003 the Secretary-General of the United
Nations officially communicated to the Court the decision taken by the General
Assembly to submit the question set forth in its resolution ES-10/14, adopted on 8
December 2003 at its Tenth Emergency Special Session, for an advisory opinion. The
question is the following: What are the legal consequences arising from the
construction of the wall being built by Israel, the occupying Power, in the Occupied
Palestinian Territory, including in and around East Jerusalem, as described in the
report of the Secretary-General, considering the rules and principles of international
law, including the Fourth Geneva Convention of 1949, and relevant Security Council
and General Assembly resolutions? The Court then gives a short overview of the
history of the proceedings.
Historical background
(paras. 70-78) In order to indicate the legal consequences of the construction of the
wall in the Occupied Palestinian Territory, the Court has first to determine whether or
not the construction of that wall breaches international law. To this end, it first makes a
brief historical analysis of the status of the territory concerned since the time that
Palestine, having been part of the Ottoman Empire, was, at the end of the First World
War, the subject of a class A mandate entrusted by the League of Nations to Great
Britain. In the course of this analysis, the Court mentions the hostilities of 1948-1949,
and the armistice demarcation line between Israeli and Arab forces fixed by a general
armistice agreement of 3 April 1949 between Israel and Jordan, referred to as the
Green Line. At the close of its analysis, the Court notes that the territories situated
between the Green Line and the former eastern boundary of Palestine under the

Description of the wall

(paras. 79-85) The Court goes on to describe, on the basis of the information available
to it in a report by the United Nations Secretary-General and the Written Statement
presented to the Court by the Secretary-General, the works already constructed or in
course of construction in that territory.

United Nations Charter and General Assembly resolution 2625 (XXV) (paras. 87-88)
The Court first recalls Article 2, paragraph 4, of the United Nations Charter, which
provides that: All Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence of any State, or
in any other manner inconsistent with the Purposes of the United Nations, and
General Assembly resolution 2625 (XXV), entitled Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among States
(hereinafter resolution 2625 (XXV)), in which the Assembly emphasized that No
territorial acquisition resulting from the threat or use of force shall be recognized as
legal. As stated in the Courts Judgment in the case concerning Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), the principles as to the use of force incorporated in the Charter reflect
customary international law (see I.C.J. Reports 1986, pp. 98-101, paras. 187-190); the
same is true, it observes, of its corollary entailing the illegality of territorial acquisition
resulting from the threat or use of force. As to the principle of self-determination of
peoples, the Court points out that it has been enshrined in the United Nations Charter
and reaffirmed by the General Assembly in resolution 2625 (XXV) cited above,
pursuant to which Every State has the duty to refrain from any forcible action which
deprives peoples referred to [in that resolution] . . . of their right to self-determination.
Article 1 common to the International Covenant on Economic, Social and Cultural
Rights and the International Covenant on Civil and Political Rights reaffirms the right of
all peoples to self-determination, and lays upon the States parties the obligation to
promote the realization of that right and to respect it, in conformity with the provisions
of the United Nations Charter. The Court recalls its previous case law, which
emphasized that current developments in international law in regard to non-selfgoverning territories, as enshrined in the Charter of the United Nations, made the
principle of self-determination applicable to all [such territories], and that the right of
peoples to self-determination is today a right erga omnes.
International humanitarian law (paras. 89-101) As regards international
humanitarian law, the Court first recalls that Israel is not a party to the Fourth Hague
Convention of 1907, to which the Hague Regulations are annexed. It considers,
however, that the provisions of the Hague Regulations have become part of customary
law, as is in fact recognized by all the participants in the proceedings before the Court.
The Court also observes that, pursuant to Article 154 of the Fourth Geneva
Convention, that Convention is supplementary to Sections II and III of the Hague
Regulations. Section III of those Regulations, which concerns Military authority over
the territory of the hostile State, is particularly pertinent in the present case. Secondly,
with regard to the Fourth Geneva Convention, the Court takes note that differing views
have been expressed by the participants in these proceedings. Israel, contrary to the
great majority of the participants, disputes the applicability de jure of the Convention to
the Occupied Palestinian Territory. The Court recalls that the Fourth Geneva
Convention was ratified by Israel on 6 July 1951 and that Israel is a party to that
Convention; that Jordan has also been a party thereto since 29 May 1951; and that
neither of the two States has made any reservation that would be pertinent to the
present proceedings. The Court observes that the Israeli authorities have indicated on
a number of occasions that in fact they generally apply the humanitarian provisions of
the Fourth Geneva Convention within the occupied territories. However, according to
Israels position, that Convention is not applicable de jure within those territories
because, under Article 2, paragraph 2, it applies only in the case of occupation of
territories falling under the sovereignty of a High Contracting Party involved in an
armed conflict. Israel explains that the territories occupied by Israel subsequent to the
1967 conflict had not previously fallen under Jordanian sovereignty. The Court notes
that, according to the first paragraph of Article 2 of the Fourth Geneva Convention,
when two conditions are fulfilled, namely that there exists an armed conflict (whether
or not a state of war has been recognized), and that the conflict has arisen between
two contracting parties, then the Convention applies, in particular, in any territory
occupied in the course of the conflict by one of the contracting parties. The object of
the second paragraph of Article 2, which refers to occupation of the territory of a High
Contracting Party, is not to restrict the scope of application of the Convention, as
defined by the first paragraph, by excluding therefrom territories not falling under the
sovereignty of one of the contracting parties, but simply to making it clear that, even if
occupation effected during the conflict met no armed resistance, the Convention is still
applicable.
This interpretation reflects the intention of the drafters of the Fourth Geneva
Convention to protect civilians who find themselves, in whatever way, in the hands of
the occupying Power, regardless of the status of the occupied territories, and is

confirmed by the Conventions travaux prparatoires. The States parties to the Fourth
Geneva Convention, at their Conference on 15 July 1999, approved that interpretation,
which has also been adopted by the ICRC, the General Assembly and the Security
Council. The Court finally makes mention of a judgment of the Supreme Court of Israel
dated 30 May 2004, to a similar effect. In view of the foregoing, the Court considers
that the Fourth Geneva Convention is applicable in the Palestinian territories which
before the 1967 conflict lay to the east of the Green Line and which, during that
conflict, were occupied by Israel, there being no need for any enquiry into the precise
prior status of those territories.
Human rights law (paras. 102-113) The participants in the proceedings before the
Court also disagree whether the international human rights conventions to which Israel
is party apply within the Occupied Palestinian Territory. Annex I to the report of the
Secretary-General states: 4. Israel denies that the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and Cultural
Rights, both of which it has signed, are applicable to the occupied Palestinian territory.
It asserts that humanitarian law is the protection granted in a conflict situation such as
the one in the West Bank and Gaza Strip, whereas human rights treaties were
intended for the protection of citizens from their own Government in times of peace.
On 3 October 1991 Israel ratified both the International Covenant on Economic, Social
and Cultural Rights of 19 December 1966 and the International Covenant on Civil and
Political Rights of the same date, as well as the United Nations Convention on the
Rights of the Child of 20 November 1989. On the question of the relationship between
international humanitarian law and human rights law, the Court first recalls its finding,
in a previous case, that the protection of the International Covenant on Civil and
Political Rights does not cease in time of war (I.C.J. Reports 1996 (I), p. 240, para.
25). More generally, it considers that the protection offered by human rights
conventions does not cease in case of armed conflict, save through the effect of
provisions for derogation of the kind to be found in Article 4 of the International
Covenant on Civil and Political Rights. It notes that there are thus three possible
situations: some rights may be exclusively matters of international humanitarian law;
others may be exclusively matters of human rights law; yet others may be matters of
both these branches of international law. In order to answer the question put to it, the
Court will have to take into consideration both these branches of international law,
namely human rights law and, as lex specialis, international humanitarian law. It
remains to be determined whether the two international Covenants and the
Convention on the Rights of the Child are applicable only on the territories of the
States parties thereto or whether they are also applicable outside those territories and,
if so, in what circumstances. After examination of the provision of the two international
Covenants, in the light of the relevant travaux prparatoires and of the position of
Israel in communications to the Human Rights Committee and the Committee on
Economic, Social and Cultural Rights, the Court concludes that those instruments are
applicable in respect of acts done by a State in the exercise of its jurisdiction outside
its own territory. In the case of the International Covenant on Economic, Social and
Cultural Rights, Israel is also under an obligation not to raise any obstacle to the
exercise of such rights in those fields where competence has been transferred to
Palestinian authorities. The Court further concludes that the Convention on the Rights
of the Child is also applicable within the Occupied Palestinian Territory.
Violation of relevant rules (paras. 114-142) The Court next proceeds to ascertain
whether the construction of the wall has violated the rules and principles of
international law found relevant to reply to the question posed by the General
Assembly.
Impact on right of Palestinian people to self-determination (paras. 115-122) It
notes in this regard the contentions of Palestine and other participants that the
construction of the wall is an attempt to annex the territory contrary to international
law and a violation of the legal principle prohibiting the acquisition of territory by the
use of force and that the de facto annexation of land interferes with the territorial
sovereignty and consequently with the right of the Palestinians to self-determination.
It notes also that Israel, for its part, has argued that the walls sole purpose is to enable
it effectively to combat terrorist attacks launched from the West Bank, and that Israel
has repeatedly stated that the Barrier is a temporary measure. The Court recalls that
both the General Assembly and the Security Council have referred, with regard to
Palestine, to the customary rule of the inadmissibility of the acquisition of territory by
war. As regards the principle of the right of peoples to self-determination, the Court
observes that the existence of a Palestinian people is no longer in issue, and has
been recognized by Israel, along with that peoples legitimate rights. The Court
considers that those rights include the right to self-determination, as the General
Assembly has moreover recognized on a number of occasions. The Court notes that
the route of the wall as fixed by the Israeli Government includes within the Closed
Area (i.e. the part of the West Bank lying between the Green Line and the wall) some
80 per cent of the settlers living in the Occupied Palestinian Territory, and has been
traced in such a way as to include within that area the great majority of the Israeli
settlements in the Occupied Palestinian Territory (including East Jerusalem). The
information provided to the Court shows that, since 1977, Israel has conducted a
policy and developed practices involving the establishment of settlements in the
Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, of the
Fourth Geneva Convention which provides: The Occupying Power shall not deport or
transfer parts of its own civilian population into the territory it occupies. The Security
Council has taken the view that such policy and practices have no legal validity and
constitute a flagrant violation of the Convention. The Court concludes that the Israeli
settlements in the Occupied Palestinian Territory (including East Jerusalem) have been
established in breach of international law. Whilst taking note of the assurance given by
Israel that the construction of the wall does not amount to annexation and that the wall
is of a temporary nature, the Court nevertheless considers that the construction of the
wall and its associated rgime create a fait accompli on the ground that could well
become permanent, in which case, and notwithstanding the formal characterization of
the wall by Israel, it would be tantamount to de facto annexation. The Court considers
moreover that the route chosen for the wall gives expression in loco to the illegal
measures taken by Israel with regard to Jerusalem and the settlements, as deplored

by the Security Council. There is also a risk of further alterations to the demographic
composition of the Occupied Palestinian Territory resulting from the construction of the
wall inasmuch as it is contributing to the departure of Palestinian populations from
certain areas. That construction, along with measures taken previously, thus severely
impedes the exercise by the Palestinian people of its right to self-determination, and is
therefore a breach of Israels obligation to respect that right.
Relevant international humanitarian law and human rights instruments (paras.
123-137) The construction of the wall also raises a number of issues in relation to the
relevant provisions of international humanitarian law and of human rights instruments.
The Court first enumerates and quotes a number of such provisions applicable in the
Occupied Palestinian Territory, including articles of the 1907 Hague Regulations, the
Fourth Geneva Convention, the International Covenant on Civil and Political Rights,
the International Covenant on Economic, Social and Cultural Rights and the United
Nations Convention on the Rights of the Child. In this connection it also refers to
obligations relating to guarantees of access to the Christian, Jewish and Islamic Holy
Places. From the information submitted to the Court, particularly the report of the
Secretary-General, it appears that the construction of the wall has led to the
destruction or requisition of properties under conditions which contravene the
requirements of Articles 46 and 52 of the Hague Regulations of 1907 and of Article 53
of the Fourth Geneva Convention. That construction, the establishment of a closed
area between the Green Line and the wall itself, and the creation of enclaves, have
moreover imposed substantial restrictions on the freedom of movement of the
inhabitants of the Occupied Palestinian Territory (with the exception of Israeli citizens
and those assimilated thereto). There have also been serious repercussions for
agricultural production, and increasing difficulties for the population concerned
regarding access to health services, educational establishments and primary sources
of water. In the view of the Court, the construction of the wall would also deprive a
significant number of Palestinians of the freedom to choose [their] residence. In
addition, since a significant number of Palestinians have already been compelled by
the construction of the wall and its associated rgime to depart from certain areas, a
process that will continue as more of the wall is built, that construction, coupled with
the establishment of the Israeli settlements mentioned above, is tending to alter the
demographic composition of the Occupied Palestinian Territory. In sum, the Court is of
the opinion that the construction of the wall and its associated rgime impede the
liberty of movement of the inhabitants of the Occupied Palestinian Territory (with the
exception of Israeli citizens and those assimilated thereto) as guaranteed under Article
12, paragraph 1, of the International Covenant on Civil and Political Rights. They also
impede the exercise by the persons concerned of the right to work, to health, to
education and to an adequate standard of living as proclaimed in the International
Covenant on Economic, Social and Cultural Rights and in the United Nations
Convention on the Rights of the Child. Lastly, the construction of the wall and its
associated rgime, by contributing to the demographic changes mentioned,
contravene Article 49, paragraph 6, of the Fourth Geneva Convention and the
pertinent Security Council resolutions cited earlier. The Court then examines certain
provisions of the applicable international humanitarian law enabling account to be
taken in certain circumstances of military exigencies, which may in its view be invoked
in occupied territories even after the general close of the military operations that led to
their occupation; it points out, however, that only Article 53 of the Fourth Geneva
Convention contains a relevant provision of this kind, and finds that, on the material
before it, the Court is not convinced that the destructions carried out contrary to the
prohibition in that Article were rendered absolutely necessary by military operations
so as to fall within the exception. Similarly, the Court examines provisions in some
human rights conventions permitting derogation from, or qualifying, the rights
guaranteed by those conventions, but finds, on the basis of the information available to
it, that the conditions laid down by such provisions are not met in the present instance.
In sum, the Court finds that, from the material available to it, it is not convinced that the
specific course Israel has chosen for the wall was necessary to attain its security
objectives. The wall, along the route chosen, and its associated rgime gravely
infringe a number of rights of Palestinians residing in the territory occupied by Israel,
and the infringements resulting from that route cannot be justified by military
exigencies or by the requirements of national security or public order. The construction
of such a wall accordingly constitutes breaches by Israel of various of its obligations
under the applicable international humanitarian law and human rights instruments.
Self-defence and state of necessity (paras. 138-141) The Court recalls that Annex I
to the report of the Secretary-General states, however, that, according to Israel: the
construction of the Barrier is consistent with Article 51 of the Charter of the United
Nations, its inherent right to self-defence and Security Council resolutions 1368 (2001)
and 1373 (2001). Article 51 of the Charter, the Court notes, recognizes the existence
of an inherent right of self-defence in the case of armed attack by one State against
another State. However, Israel does not claim that the attacks against it are imputable
to a foreign State. The Court also notes that Israel exercises control in the Occupied
Palestinian Territory and that, as Israel itself states, the threat which it regards as
justifying the construction of the wall originates within, and not outside, that territory.
The situation is thus different from that contemplated by Security Council resolutions
1368 (2001) and 1373 (2001), and therefore Israel could not in any event invoke those
resolutions in support of its claim to be exercising a right of self-defence.
Consequently, the Court concludes that Article 51 of the Charter has no relevance in
this case. The Court considers further whether Israel could rely on a state of necessity
which would preclude the wrongfulness of the construction of the wall. In this regard,
citing its decision in the case concerning the Gabkovo-Nagymaros Project
(Hungary/Slovakia), it observes that the state of necessity is a ground recognized by
customary international law that can only be invoked under certain strictly defined
conditions which must be cumulatively satisfied (I.C.J. Reports 1997, p. 40, para. 51),
one of those conditions being that the act at issue be the only way for the State to
guard an essential interest against a grave and imminent peril. In the light of the
material before it, the Court is not convinced that the construction of the wall along the
route chosen was the only means to safeguard the interests of Israel against the peril
which it has invoked as justification for that construction. While Israel has the right, and
indeed the duty to respond to the numerous and deadly acts of violence directed
against its civilian population, in order to protect the life of its citizens, the measures

taken are bound to remain in conformity with applicable international law. Israel cannot
rely on a right of self-defence or on a state of necessity in order to preclude the
wrongfulness of the construction of the wall. The Court accordingly finds that the
construction of the wall, and its associated rgime, are contrary to international law.
Legal consequences of the violations (paras. 143-160) The Court then examines
the consequences of the violations by Israel of its international obligations. After
recalling the contentions in that respect of various participants in the proceedings, the
Court observes that the responsibility of Israel is engaged under international law. It
then proceeds to examine the legal consequences by distinguishing between, on the
one hand, those arising for Israel and, on the other, those arising for other States and,
where appropriate, for the United Nations.
Legal consequences of those violations for Israel (paras. 149-154) The Court
notes that Israel is first obliged to comply with the international obligations it has
breached by the construction of the wall in the Occupied Palestinian Territory.
Consequently, Israel is bound to comply with its obligation to respect the right of the
Palestinian people to self-determination and its obligations under international
humanitarian law and international human rights law. Furthermore, it must ensure
freedom of access to the Holy Places that came under its control following the 1967
War.
The Court observes that Israel also has an obligation to put an end to the violation of
its international obligations flowing from the construction of the wall in the Occupied
Palestinian Territory. Israel accordingly has the obligation to cease forthwith the works
of construction of the wall being built by it in the Occupied Palestinian Territory,
including in and around East Jerusalem. In the view of the Court, cessation of Israels
violations of its international obligations entails in practice the dismantling forthwith of
those parts of that structure situated within the Occupied Palestinian Territory,
including in and around East Jerusalem. All legislative and regulatory acts adopted
with a view to its construction, and to the establishment of its associated rgime, must
forthwith be repealed or rendered ineffective, except where of continuing relevance to
Israels obligation of reparation. The Court finds further that Israel has the obligation to
make reparation for the damage caused to all the natural or legal persons concerned.
The Court recalls the established jurisprudence that The essential principle contained
in the actual notion of an illegal act . . . is that reparation must, as far as possible, wipe
out all the consequences of the illegal act and reestablish the situation which would, in
all probability, have existed if that act had not been committed. Israel is accordingly
under an obligation to return the land, orchards, olive groves and other immovable
property seized from any natural or legal person for purposes of construction of the
wall in the Occupied Palestinian Territory. In the event that such restitution should
prove to be materially impossible, Israel has an obligation to compensate the persons
in question for the damage suffered. The Court considers that Israel also has an
obligation to compensate, in accordance with the applicable rules of international law,
all natural or legal persons having suffered any form of material damage as a result of
the walls construction. Legal consequences for other States (paras. 154-159) The
Court points out that the obligations violated by Israel include certain obligations erga
omnes. As the Court indicated in the Barcelona Traction case, such obligations are by
their very nature the concern of all States and, In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection. (Barcelona
Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J. Reports
1970, p. 32, para. 33.) The obligations erga omnes violated by Israel are the obligation
to respect the right of the Palestinian people to self-determination, and certain of its
obligations under international humanitarian law. As regards self-determination, the
Court recalls its findings in the East Timor case, and General Assembly resolution
2625 (XXV). It recalls that a great many rules of humanitarian law constitute
intransgressible principles of international customary law (I.C.J. Reports 1996 (I), p.
257, para. 79), and observes that they incorporate obligations which are essentially of
an erga omnes character. It also notes the obligation of States parties to the Fourth
Geneva Convention to ensure respect for its provisions. Given the character and the
importance of the rights and obligations involved, the Court is of the view that all
States are under an obligation not to recognize the illegal situation resulting from the
construction of the wall in the Occupied Palestinian Territory, including in and around
East Jerusalem. They are also under an obligation not to render aid or assistance in
maintaining the situation created by such construction. It is also for all States, while
respecting the United Nations Charter and international law, to see to it that any
impediment, resulting from the construction of the wall, to the exercise by the
Palestinian people of its right to self-determination is brought to an end. In addition, all
the States parties to the Geneva Convention relative to the Protection of Civilian
Persons in Time of War of 12 August 1949 are under an obligation, while respecting
the United Nations Charter and international law, to ensure compliance by Israel with
international humanitarian law as embodied in that Convention.
The United Nations (para. 160)
Finally, the Court is of the view that the United Nations, and especially the General
Assembly and the Security Council, should consider what further action is required to
bring to an end the illegal situation resulting from the construction of the wall and the
associated rgime, taking due account of the present Advisory Opinion. * The Court
considers that its conclusion that the construction of the wall by Israel in the Occupied
Palestinian Territory is contrary to international law must be placed in a more general
context. Since 1947, the year when General Assembly resolution 181 (II) was adopted
and the Mandate for Palestine was terminated, there has been a succession of armed
conflicts, acts of indiscriminate violence and repressive measures on the former
mandated territory. The Court would emphasize that both Israel and Palestine are
under an obligation scrupulously to observe the rules of international humanitarian law,
one of the paramount purposes of which is to protect civilian life. Illegal actions and
unilateral decisions have been taken on all sides, whereas, in the Courts view, this
tragic situation can be brought to an end only through implementation in good faith of
all relevant Security Council resolutions, in particular resolutions 242 (1967) and 338
(1973). The Roadmap approved by Security Council resolution 1515 (2003)
represents the most recent of efforts to initiate negotiations to this end. The Court

considers that it has a duty to draw the attention of the General Assembly, to which the
present Opinion is addressed, to the need for these efforts to be encouraged with a
view to achieving as soon as possible, on the basis of international law, a negotiated
solution to the outstanding problems and the establishment of a Palestinian State,
existing side by side with Israel and its other neighbours, with peace and security for
all in the region.
Germany vs. Poland (the Factory at Chorzow case)
Facts:
-March 5,1915 , a contract was concluded between the government of Germany and
the Bayerische (a German company)- that the Company will start the construction of a
nitrate factory at Chorzow in Upper Silesia on behalf of the Reich. Bayerische will
manage the factory under the supervision of the Reich.
- 1919- the Reich sold the nitrate factory to a new company , the Oberschlesische for
approximately 110 million marks but it was taken over by another new company the
Treuhand. As guarantee for the payment of the factory ,a lien on all shares of the
Oberschlesische was instituted in favor of the Reich. The management of the factory
however still remained with Bayerische.
- May 15th, 1922 - A Convention concerning Upper Silesia was signed at Geneva
between Germany and Poland.
- July 1, 1922- the Polish Court of Huta Krolewska, gave a decision to the effect that
the registration with this Court of the Oberschlesische as owner of the factory was
cancelled and declared null and void and that the right of ownership in the landed
property in question was to be registered in the name of Polish The treasury. This
decision, which cited Article 256 of the Treaty of Versailles and the Polish laws of July
14th, 1920, and June 16th, 1922, was carried into effect on the same day.
- July 3, 1922, Poland took charge of the factory at Chorzw to give effect to a Polish
ministerial decree dated June 24th, 1922.
- May 25, 1926 - The Court's Judgment No. 7 saying the attitude adopted by that
Polish Government towards those Companies in taking possession of the nitrate
factory situated at Chorzw, was not in conformity with the provisions of Article 6 and
the following articles of the Convention concerning Upper Silesia concluded at
Geneva.
-January 14th, 1927- the German Government had recognized that the factory could
no longer be restored in kind and that consequently the reparation due must, in
principle, take the form of the payment of compensation, a statement which is
moreover formally repeated in the Case.
- in the opinion of the Polish Government however, certain claims which Poland was
said to have against Germany, must be set off against the indemnity to be awarded to
Germany.
- the Polish Government instituted an action before the Polish Court of Katowice
against the Oberschlesische in order to obtain a declaration that that Company had
not become owner of the landed property at Chorzw; that the entry in the land
register made in its favour was not valid, and that-independently of the laws of July
14th, 1920, and June 16th, 1922, - the ownership of the landed property in question
fell to the Polish Treasury. The judgment of the Court in this action which was given
by default - was published on November 12th, 1927, and took effect on January 2nd,
1928 ; it admitted all the submissions of the claimant]
- February 8th, 1927- Germany, by an application instituting proceedings filed with the
Registry of the Court with Article 40 of the Statute and Article 35 of the Rules of Court,
has submitted to the Permanent Court of International Justice a suit concerning the
reparation which, in the contention of the Government of the Reich, is due by the
Polish Government for the damage suffered by the Oberschlesische and the
Bayerische.
Issue: whether or not the compensation due to German Government is limited only to
the value of the undertaking at the moment of dispossession plus interest to the day of
payment
Ruling: No
The action of Poland which the Court has judged to be contrary to the Geneva
Convention is not an expropriation - to render which lawful only the payment of fair
compensation would have been wanting; it is a seizure of property, rights and interests
which could not be expropriated even against compensation, save under the
exceptional conditions fixed by Article 7 of the said Convention. As the Court has
expressly declared in Judgment No. 8, reparation is in this case the consequence not
of the application of Articles 6 to 22 of the Geneva Convention, but of acts contrary to
those articles.
It follows that the compensation due to the German Government is not necessarily
limited to the value of the undertaking at the moment of dispossession, plus interest to
the day of payment. This limitation would only be admissible if the Polish Government
had had the right to expropriate, and if its wrongful act consisted merely in not having
paid to the two Companies the just price of what was expropriated; in the present
case, such a limitation might result in placing Germany and the interests protected by
the Geneva Convention, on behalf of which interests the German Government is
acting, in a situation more unfavourable than that in which Germany and these
interests would have been if Poland had respected the said Convention. Such a
consequence would not only be unjust, but also and above all incompatible with the
aim of Article 6 and following articles of the Convention - that is to say, the prohibition,
in principle, of the liquidation of the property, rights and interests of German nationals
and of companies controlled by German nationals in Upper Silesia - since it would be
tantamount to rendering lawful liquidation and unlawful dispossession indistinguishable
in so far as their financial results are concerned.
The essential principle contained in the actual notion of an illegal act - a principle
which seems to be established by international practice and in particular by the
decisions of arbitral tribunals - is that 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. Restitution in kind, or, if
this is not possible, payment of a sum corresponding to the value which a restitution in
kind would bear; the award, if need be, of damages for loss sustained which would not
be covered by restitution in kind or payment in place of it - such are the principles
which should serve to determine the amount of compensation due for an act contrary
to international law.
This conclusion particularly applies as regards the Geneva Convention, the object of
which is to provide for the maintenance of economic life in Upper Silesia on the basis
of respect for the status quo. The dispossession of an industrial undertaking - the
expropriation of which is prohibited by the48Geneva Convention - then involves the
obligation to restore the undertaking and, if this be not possible, to pay its value at the
time of the indemnification, which value is designed to take the place of restitution
which has become impossible. To this obligation, in virtue of the general principles of
international law, must be added that of compensating loss sustained as the result of
the seizure. The impossibility, on which the Parties are agreed, of restoring the
Chorzw factory could therefore have no other effect but that of substituting payment
of the value of the undertaking for restitution ; it would not be in conformity either with
the principles of law or with the wish of the Parties to infer from that agreement that the
question of compensation must henceforth be dealt with as though an expropriation
properly so called was
VINUYA VS. EXECUTIVE SECRETARY
FACTS
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit
organization registered with the SEC for the purpose of providing aid to the victims of
rape by Japanese military forces in the Philippines during the WWII. They claim that
they were comfort women at that time and have greatly suffered because of that. In
1998, they have approached the Executive Department through the DOJ, DFA, and
OSG and requested assistance in filing a claim against the Japanese officials and
military officers who ordered the establishment of the comfort women stations in the
Philippines. However, the officials declined on that ground that the individual claims
had already been satisfied by Japans compliance with the San Francisco Peace
Treaty of 1951 and the bilateral Reparations Agreement of 1956 between Japan and
the Philippines. The petitioners argue that the general waiver of claims made by the
Philippine government in the Treaty of Peace with Japan is void because the comfort
women system constituted a crime against humanity, sexual slavery, and torture. The
same was prohibited under the jus cogens norms from which no derogation is
possible. Thus, such waiver was a breach against the governments obligation not to
afford impunity for crimes against humanity. In addition, they claim that the Philippine
governments acceptance of the apologies made by Japan as well as funds for the
AWF were contrary to international law.
ISSUES
Was the refusal of the Executive Department to espouse petitioners claims against
Japan valid?
RULING
Yes, it was valid. It has the exclusive prerogative for such determination. So much so,
the Philippines are not under any international obligation to espouse petitioners claim.
Given the extraordinary length of time that has lapsed between the treatys conclusion,
the Executive Department had the ample time to assess the foreign policy
considerations of espousing a claim against Japan, from the standpoint of both the
interests of the petitioners and those of the Republic, and decide on that basis if
apologies are sufficient, and whether further steps are appropriate or necessary.
Under international law, the only means available for individuals to bring a claim
within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individuals behalf. When this
happens, in the eye of the international tribunal, the State is the sole claimant.
Therefore, the State is the sole judge to decide whether its protection in favour of
those petitioners will be granted, to what extent it is granted, and when will it cease. It
is a discretionary power and the exercise of which may be determined by
consideration of a political or other nature. Moreover, in the invocation of jus cogens
(a norm from which no derogation is ever permitted) norms and erga omnes (rights
or obligations are owed toward all) obligation of the Philippines, the petitioners failed
to show that the crimes committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute
perpetrators of international crimes in an erga omnes obligation or has attained the
status of jus cogens.
DISPOSITION
Petition is dismissed.
Peaceful Settlement of International Disputes
AERIAL INCIDENCE, US vs. Bulgaria
FACTS:
The El Al Israel Airlines Constellation Aircraft no. 4X-AKC was flying en
route From Vienna to Tel Aviv. It had been driven slightly off its course by unpredicted
strong local winds and sudden turbulent weather which caused the aircraft to fly into
Bulgarian Airspace. It was fired upon while attempting to return to its course and as it
was about to leave Bulgaria. Among the effects of the attack was the killing of all 51
passengers and 7 crew members, including six American nationals and the destruction
of their property on board the aircraft.
The case was first instituted to the ICJ by Israel. (Israel vs. Bulgaria):
Bulgaria challenged the Court's jurisdiction to deal with the claim. Israel stated that,
Bulgaria had in 1921 accepted the compulsory jurisdiction of the Permanent Court of
International Justice for an unlimited period; that acceptance became applicable, when
Bulgaria was admitted to the United Nations in 1955, to the jurisdiction of the

International Court of Justice by virtue of Article 36, paragraph 5, of the present Court's
Statute, which provides that declarations made under the Statute of the PCIJ and
which are still in force shall be deemed, as between the parties to the present Court's
Statute, to be acceptances applicable to the International Court of Justice for the
period which they still have to run and in accordance with their terms. The Bulgarian
Government denied that Article 36, paragraph 5, transferred the effect of its
Declaration to the jurisdiction of the International Court of Justice. The issue in the
case was whether the ICJ had jurisdiction over the case. The Court decided that it
had no jurisdiction over the case: The Court found that Article 36, paragraph 5, could
not in any event be operative as regards Bulgaria until the date of its admission to the
United Nations, namely, December 14th, 1955. At that date, however, the Declaration
of 1921 was no longer in force in consequence of the dissolution of the Permanent
Court in 1946. The acceptance set out in that Declaration of the compulsory
jurisdiction of the Permanent Court was devoid of object, since that Court was no
longer in existence. And there is nothing in Article 36, paragraph 5, to reveal any
intention of preserving all the declarations which were in existence at the time of the
signature or entry into force of the Charter, regardless of the moment when a State
having made a declaration became a party to the Statute. The provision determines
the birth of the compulsory jurisdiction of the new Court. It makes it subject to two
conditions: (1) that the State having made the declaration should be a party to the
Statute; (2) that the declaration of that State should still be in force. Since the
Bulgarian Declaration had lapsed before Bulgaria was admitted to the United Nations,
it cannot be said that at that time that Declaration was still in force. The second
condition is therefore not satisfied in the present case. In seeking and obtaining
admission to the United Nations, Bulgaria accepted all the provisions of the Statute,
including Article 36. But Bulgaria's acceptance of Article 36, paragraph 5, does not
constitute consent to the compulsory jurisdiction of the Court; such consent can validly
be given only in accordance with Article 36, paragraph 2. Article 36, paragraph 5,
cannot therefore lead the Court to find that the Bulgarian Declaration of 1921 provides
a basis for its jurisdiction to deal with the case. In these circumstances it is
unnecessary for the Court to proceed to consideration of the other Bulgarian
Preliminary Objections
The United States still pressed ahead with its claim. It instituted
proceeding through a written application on Oct. 24, 1957. For these breaches of
international obligation, the United States
Government had demanded and demands monetary and other reparation from the
Bulgarian Government; the monetary reparation demanded consists of $257,875.00.
Bulgaria presented 4 objections. (Im so sorry I can only cite 1 objection
which I took from the book, since the file containing Bulgarias Objections is in French
and it has no translations).
OBJECTION TWO: Reciprocal Invocation of the Connally Amendment.
In August 1946 The US acceded to the optional clause, and
accepted the compulsory
jurisdiction of the ICJ. However,
Senator Conally added a phrase to a US reservation, which includes:
disputes with regard to matters which are essentially within the domestic
jurisdiction of the United States of America as determined by the United
States of America.
Bulgaria now is seeking to invoke such reservation provided by the
Conally Amendment. On the grounds of reciprocity and the consensual basis of ICJ
jurisdiction, Bulgaria invoked the Conally Amendment reservation exempting from ICJ
jurisdiction matters within its internal competence. Bulgaria contended that its airspace
security and anti-craft defences were within its domestic jurisdiction. The Bulgarian
Govt argued further that it cannot admit that matters which it rightfully determines as
being essentially domestic jurisdiction should be considered before the court. It
requests that the court declared itself without competence to adjudicate upon the
application of the Govt of the US.
The United States stated in its submission to the Objections of Bulgaria:
The United States agrees that Bulgaria is entitled to avail itself in the present case of
this reservation on the basis of the principle of reciprocity. HOWEVER: It is the view of
the United States that reservation (b) does not confer a power to nullify the jurisdiction
of this Court through arbitrary determination that a particular subject matter of dispute
is essentially domestic. In the present case it is perfectly clear that the subject matter
of litigation is one of international concern and is not essentially within the domestic
jurisdiction of Bulgaria. The question of liability for these deaths and the question of
fixing compensation to be paid to the next of kin are plainly matters of international
concern affecting the United States and Bulgaria, as well as other countries. Bulgaria
is not entitled to declare these questions to be essentially within its domestic
jurisdiction.
On May 16, 1960 the US requested the discontinuance of the
proceedings and the removal of the case from the courts list. On May 30, 1960 the
Court ordered that the case be removed from the Courts list. This ended the dispute.
Other objections of Bulgaris taken from the US submission to Bulgarias Objections:
OBJECTION 1: The acceptance of compulsory jurisdiction to the court had expired
when the PCIJ was dissolved. United States: The Bulgarian acceptance of
compulsory jurisdiction had not expired and was still in force when the present
proceedings were begun, thus giving the International Court of Justice jurisdiction in
this case by virtue of Article 36, paragraph 5 of the Statute of the Court.
OBJECTION THREE: The United States Application is inadmissible because the
American nationals on behalf of whom claims are presented have not exhausted local
remedies under Bulgarian law. United States: If there were any local remedies
available in Bulgaria to the next of kin of Americans killed in the shooting down of the
El Al Airlines Constellation on July 27, 1955, the Bulgarian Government never adverted
to them nor to the desirability or necessity of their being exhausted when the United
States presented its diplomatic claim to the Government of Bulgaria. Instead, the
Bulgarian Government entertained the diplomatic claim and undertook to discharge it,
as has been noted earlier in the present statement. In view of these facts, Bulgaria is

not entitled now to raise, for the first time, the assertion of a requirement that local
remedies be exhausted.
Notes:
July 27, 1955 Incident Occurred.
Oct. 28, 1957 US application to the ICJ
Dec. 2, 1958 US submitted its memorial
Sept. 3, 1959 Bulgaria submitted its objections (in french)
Feb. 1960 US submissions to the objections of Bulgaria
May 16, 1960 after months of time-limit extensions, US reuest for discontinuance
May 30, 1960 Court order accepting the withdrawal
Nicaragua vs. US
FACTS:
In 1946, the US made a declaration containing the following reservation: this
declaration shall remain in force for a period of 5 years and thereafter until the
expiration of 6 months after notice may be given to terminate this declaration.
In 1984, the US deposited with the UN Sec Gen a notification referring to the 1946
declaration, stating: the aforesaid declaration shall not apply to disputes with any
Central American State or arising out of or related to events in Central America, any of
which disputes shall be settled in such manner as the parties to them may agree.
Nicaragua filed a claim against the US for damages in connection with military and
paramilitary activities allegedly supported by the US in and against Nicaragua. The
US argues that pursuant to the 1984 reservation that it made, the ICJ has no
jurisdiction over the controversy, since it involves a dispute with a Central American
State. Nicaragua argues that the ICJ has jurisdiction under the 1946 declaration,
which was not terminated by the subsequent 1984 declaration, since the US never
gave the 6-months notice of termination, as required by the reservation that it had
made in 1946.
According to Nicaragua, the US conceived, created, and organized a mercenary army,
the contra force, in Nicaragua. The court found that contra force was not created by
the US, but that a number of the operations were decided and planned, if not actually
by the US advisers, then at least in close collaboration with them, and on the basis of
the intelligence and logistic support which the US was able to offer. The US gave
assistance to the contra force in the form of logistic support, the supply of information
on the location and movements of the Sandinista troops, the use of sophisticated
methods of communication, etc. However, the evidence does not warrant a finding
that the US gave direct combat support.
ISSUE:
W/N the declaration is still binding on the US.
HELD:
The ICJ has jurisdiction. The 1946 declaration is still binding on the US.
The US cannot derogate from the time-limit proviso included in its 1946 declaration.
The notion of reciprocity is concerned with the scope and substance of the
commitments entered into, including reservations, and not with formal conditions of
their creation, duration, or extinction. Reciprocity cannot be invoked in order to excuse
departure from the terms of a States own declaration. Nicaragua can invoke the six
months notice against the US, not on the basis of reciprocity, but because it is an
undertaking which is an integral part of the instrument that contains it. The 1984
notification cannot override the obligation of the US to submit to the jurisdiction of the
Court vis--vis Nicaragua.
ISSUE:
Whether the contras can be considered as organs of the US Government, or as acting
on its behalf.

December 1989", had failed to observe the obligation to respect the powers and
duties of Portugal as the administering Power of East Timor, as well as the right of
the people of East Timor to self-determination and the related rights.
Australia, according to Portugal's allegations, had thereby incurred international
responsibility vis--vis both the people of East Timor and Portugal, which claimed to
have remained the administering Power according to several resolutions of the
General Assembly and the Security Council, even though it had left East Timor
definitely when Indonesia invaded East Timor in 1975.
As the basis of jurisdiction Portugal referred to the declarations of both States
according to Art. 36 paragraph 2 of the Statute.
Australia objected to the jurisdiction of the Court and the admissibility of the
application.
Australia argued that the Court was confronted with a situation comparable to that in
the Monetary Gold Case, namely that the Court would have to decide on the
lawfulness of Indonesia's entry into and continuing presence in East Timor as well
as the lawfulness of the conclusion of the Treaty, what could not be done in the
absence of Indonesia.
Portugal argued that the Court had only to judge upon the objective conduct of
Australia, which consisted in having negotiated, concluded and initiated
performance of the 1989 Treaty with Indonesia, and that this question was perfectly
separable from any question relating to the lawfulness of the conduct of Indonesia.
The central issue for the Court was whether the 1989 Treaty could have been legally
concluded between Indonesia and Australia or whether Portugal alone was
empowered to conclude treaties on behalf of East Timor.
Issue:
Whether the Court could decide the case in the absence of Indonesia which had not
accepted the jurisdiction of the Court and was not inclined to intervene in the case.
Ruling:
The Court concluded that Australia's behaviour could not be assessed without first
entering into the question of why Indonesia could not lawfully have concluded the 1989
Treaty, while Portugal allegedly could have done so.
The Court was of the opinion that the very subject-matter of the decision would
necessarily be a determination of whether Indonesia could or could not have acquired
the power to conclude treaties on behalf of East Timor relating to the resources of its
continental shelf; and such a determination could not be made without the consent of
Indonesia.
The Court also rejected Portugal's additional argument that the rights which Australia
had allegedly breached were rights erga omnes and as such permitted Portugal to sue
Australia individually, regardless of whether or not another State had conducted itself
in a similarly unlawful manner
The Court considered that the erga omnes character of a norm and the principle of
consent to the Court's jurisdiction were two different things. That whatever the nature
of the obligations invoked, the Court could not rule on the lawfulness of the conduct of
a State when its judgment would imply an evaluation of the lawfulness of the conduct
of another State not a party to the case.
The Court likewise dismissed the argument of Portugal that the United Nations
resolutions concerning the status of Portugal as administering Power were imposing
upon all States an obligation not to recognize any authority of Indonesia over East
Timor. The Court found that without prejudice to the question of the binding or nonbinding nature of these resolutions such an obligation could not be inferred from those
resolutions.
The Court would have necessarily to rule upon the lawfulness of Indonesia's conduct
as a prerequisite for deciding Portugal's contention that Australia violated its obligation
to respect Portugal's status as administering Power and East Timor's status as a nonself governing territory and the right of 7its people to self-determination and to
permanent sovereignty of its natural resources.
The rights and obligations of Indonesia would constitute the very subject-matter of the
case and could only be judged with the consent of Indonesia.
Since this consent is lacking, the Court had t dismiss the case, despite the importance
of the questions raised.
EL SALVADOR V HONDURAS
Nicaragua Intervention
1992 ICJ Reports

HELD: No, the contras are not agents of the US government.

The evidence is insufficient to demonstrate the total dependence of the contras on US
aid. A partial dependency may be inferred from the fact that the leaders were selected
by the US, and from other factors such as the organization, training and equipping of
the force, planning of operations, the choosing of targets, and the operational support
provided. There is, however, no clear evidence that the US actually exercised such a
degree of control as to justify treating the contras as acting on its behalf. Therefore,
the contras, remain responsible for their own acts, in particular for alleged violations by
them of humanitarian law.
For the US to be legally responsible, it would have to be proved that the State had
effective control of the operations in the course of which the alleged violations were
committed.
Case Concerning East Timor (Portugal vs Australia)
Facts:
Portugal acted as the administering Power over East Timor in accordance with
Chapter XI of the Charter of the United Nations.
On 22 February 1991 Portugal had instituted proceedings against Australia concerning
"certain activities of Australia with respect to East Timor".
Portugal claimed that Australia, by the conclusion of a Treaty of "Cooperation in an
area between the Indonesian Province of East Timor and Northern Australia of 11

Facts:
There is a land, Island and maritime frontier dispute between El Salvador and
Honduras. Unfortunately, the said subject of the dispute includes the Gulf of Fonesca,
over which, the Republic of Nicaragua has rights to be protected on the said Gulf.
Upon knowing the case, Nicaragua filed an application for permission to intervene in
the dispute between El Salvador and Honduras. The grounds for the filing are:
1.
2.

To protect the legal rights of the Republic of Nicaragua in the Gulf of

Fonesca and the adjacent maritime areas by all legal means available.
To intervene in the proceedings in order to inform the court of the nature of
the legal rights of Nicaragua which are in issue in the dispute.

Nicaragua filed this Application in Relation to Article 62 which states that

Should a state consider it has an interest which may be affected by the decision in the
case, it may submit a request to the court to be permitted to intervene and Article 81,
par.2 which states States seeking to intervene is required to specify the case to which
it relates and to set out:

a.
b.
c.

The interest of a legal nature which the state applying to intervene

considers maybe affected by the decision in that case;
The precise object of intervention;
Any basis of jurisdiction of jurisdiction which is claimed to exist as
between the state applying to intervene and the parties to the case;

The court initially granted the application of Nicaragua. El Salvador

contested the application because it argued that Nicaragua failed to present a valid
link of jurisdiction as require in Art.81, par.2.
Issue:
Is there a need for Nicaragua to show a valid link of jurisdiction to intervene in the
case?
Held:
The court held that Nicaragua does not need to show a valid link of
jurisdiction because it will only play as an intervenor. It wants only to ensure that its
right will not be prejudiced by the decision of the court. It only wants to inform the court
about its rights in the Gulf of Fonesca. It would be different if Nicaragua would be a
third party in the case which will not just be given the right to be heard but also to
present its claims against the parties. If thats the case, the need of a valid link of
jurisdiction is needed. The rights of Nicaragua as an intervenor would be limited to the
right to be heard, nothing more, nothing less.