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The ICJ Issues the Diallo Compensation Judgment

* This post is based on the ICJ Press Release No. 2012/22 (19 June 2012), available here.

On 19 June, the ICJ delivered its Judgment in the case concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) (compensation owed by the Democratic Republic of the Congo to the Republic of Guinea). For the full text of the judgment click here. The case had started in December 1998 (for the Application instituting proceedings click here). In its Application, Guinea had requested the Court to order that the Congolese State pay to the State of Guinea on behalf of its national, Mr. Diallo Ahmadou Sadio, the sums of US$31,334,685,888.45 and Z 14,207,082,872.7 in respect of the financial loss suffered by the latter; To pay also to the State of Guinea damages equal to 15 per cent of the principal award, that is to say US$4,700,202,883.26 and Z 2,131,062,430.9; To award to the applicant State bank and moratory interest at respective annual rates of 15 per cent and 26 per cent from the end of the year 1995 until the date of payment in full. Guinea had also asked the Court to order that the costs of the present proceedings be borne by the Congolese State.

The judgment on preliminary objections was rendered on 24 May 2007 (for the judgment click here). The Court found the case admissible. The judgment on the merits was rendered on 30 November 2010 (for the full judgment click here). Among others, in this judgment the Court found that, in respect of the circumstances in which Mr. Diallo was expelled from Congolese territory on 31 January 1996, the Democratic Republic of the Congo violated Article 13 of the International Covenant on Civil and Political Rights and Article 12, paragraph 4, of the African Charter on Human and Peoples’ Rights (paragraph 165(2); and, in respect of the circumstances in which Mr. Diallo was arrested and detained in 1995-1996 with a view to his expulsion, the Democratic Republic of the Congo violated Article 9, paragraphs 1 and 2, of the International Covenant on Civil and Political Rights and Article 6 of the African Charter on Human and Peoples’ Rights (paragraph 165(3). The Court unanimously found that the Democratic Republic of the Congo is under obligation to make appropriate reparation, in the form of compensation, to the Republic of Guinea for the injurious consequences of the violations of these international obligations and failing agreement between the Parties on this matter within six months from the date of this Judgment, the question of compensation due to the Republic of Guinea shall be settled by the Court.

I. Heads of damage in respect of which compensation is requested

In the judgment on compensation of 19 June 2012 the Court noted that Guinea sought compensation under four heads of damage: non-material injury and three heads of material damage.

A. Compensation for non-material injury

The Court took into account various factors in order to assess the non-material injury suffered by Mr. Diallo, including the arbitrary nature of Mr. Diallo’s arrests and detentions, the unjustifiably long period during which he was detained, the unsupported accusations against him, his wrongful expulsion from a country where he had resided for 32 years and where he had engaged in significant business activities, and the link between Mr. Diallo’s expulsion and the fact that he had attempted to recover debts which he believed were owed to his companies by the Zairean State or companies in which the State held a substantial portion of the capital.

The Court considered that, on the basis of equitable considerations, the amount of US$85,000 would provide appropriate compensation for the non-material injury suffered by Mr. Diallo (paras. 21-25).

B. Compensation for material injury suffered by Mr. Diallo

 1. Alleged loss of Mr. Diallo’s personal property (including assets in bank accounts)

The Court considered that Guinea has failed to prove the extent of the alleged loss of Mr. Diallo’s personal property, namely the furnishings that appear on the inventory of personal property in Mr. Diallo’s apartment, certain high-value items alleged to have been in the apartment, which are not specified on that inventory, and assets in bank accounts, and the extent to which any such loss was caused by the DRC’s unlawful conduct. The Court recalls, however, that Mr. Diallo lived and worked in the territory of the DRC for over 30 years, during which time he surely accumulated personal property. It considers that Mr. Diallo would have had to transport his personal property to Guinea or to arrange for its disposition in the DRC. Thus, the Court is satisfied that the DRC’s unlawful conduct caused some material injury to Mr. Diallo with respect to the personal property that was in his apartment.

In such a situation, the Court considered that, on the basis of equitable considerations, the amount of US$10,000 would provide appropriate compensation for the material injury suffered by Mr. Diallo (paras. 30-36).

2. Alleged loss of remuneration during Mr. Diallo’s unlawful detentions and following his unlawful expulsion

The Court considered that Guinea has failed to establish that Mr. Diallo was receiving remuneration from his two companies in the period immediately prior to his detentions. The Court noted that Guinea also has not explained how Mr. Diallo’s detentions caused an interruption in any remuneration that Mr. Diallo might have been receiving in his capacity as gérant of those companies. Under these circumstances, the Court considered that Guinea has not proven that Mr. Diallo suffered a loss of professional remuneration as a result of his unlawful detentions (paras. 37-46). The Court considered that the reasons for rejecting the claim for loss of professional remuneration during the period of Mr. Diallo’s detentions also apply to the claim relating to the period following Mr. Diallo’s expulsion. The Court added that the claim is moreover highly speculative and assumes that Mr. Diallo would have continued to receive a monthly amount had he not been unlawfully expelled. Thus, the Court concluded that no compensation can be awarded for Guinea’s claim relating to unpaid remuneration following Mr. Diallo’s expulsion (paras. 47-49).

The Court therefore awarded no compensation for remuneration that Mr. Diallo allegedly lost during his detentions and following his expulsion (para. 50).

 3. Alleged deprivation of potential earnings

The Court noted that Guinea makes an additional claim that it describes as relating to Mr. Diallo’s “potential earnings”. The Court considered that this claim amounts to a claim for a loss in the value of the companies allegedly resulting from Mr. Diallo’s detentions and expulsion. Such a claim is beyond the scope of the proceedings, given the Court’s prior decision that Guinea’s claims relating to the injuries alleged to have been caused to the companies are inadmissible.

For these reasons, the Court awarded no compensation to Guinea in respect of its claim relating to the “potential earnings” of Mr. Diallo (paras. 51-54).

 II. Total sum awarded and post-judgment interest and procedural costs

The Court concluded that the total sum awarded to Guinea is US$95,000 to be paid by 31 August 2012. The Court decided that, should payment be delayed, post-judgment interest on the principal sum due will accrue as from 1 September 2012 at an annual rate of 6 per cent (para. 56).

 The Court decided that each Party shall bear its own costs (para. 60).

In the dispositif of the judgment the Court:

(1) fixed the amount of compensation due from the Democratic Republic of the Congo to the Republic of Guinea for the non-material injury suffered by Mr. Diallo at US$85,000 (fifteen votes to one);

(2) fixed the amount of compensation due from the Democratic Republic of the Congo to the Republic of Guinea for the material injury suffered by Mr. Diallo in relation to his personal property at US$10,000 (fifteen votes to one);

(3) found that no compensation is due from the Democratic Republic of the Congo to the Republic of Guinea with regard to the claim concerning material injury allegedly suffered by Mr. Diallo as a result of a loss of professional remuneration during his unlawful detentions and following his unlawful expulsion (fourteen votes to two);

(4) found that no compensation is due from the Democratic Republic of the Congo to the Republic of Guinea with regard to the claim concerning material injury allegedly suffered by Mr. Diallo as a result of a deprivation of potential earnings (unanimously);

(5) decided that the total amount of compensation due under points 1 and 2 above shall be paid by 31 August 2012 and that, in case it has not been paid by this date, interest on the principal sum due from the Democratic Republic of the Congo to the Republic of Guinea will accrue as from 1 September 2012 at an annual rate of 6 per cent (unanimously);

(6) rejected the claim of the Republic of Guinea concerning the costs incurred in the proceedings (fifteen votes to one).

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