La Cour internationale de justice et la problématique des droits de l'homme

Paragraph 2 : The application of academies measurements

We will study here implementation of measurements academies (A), before considering their range (B).

A- The implementation of academies measurements

From the start, it should be said here that the implementation of academies measurements by the States in conflict is not often effective. Within the framework for example of the business of the military and paramilitary Activities in Nicaragua^99(*), Nicaragua requires the protection of the rights which are reached by the acts of the United States : support « with the mercenaries » and resort direct to the force or the threat of use of the force. Three series of rights are thus called upon, whose holders are respectively the citizens, the State and the people of Nicaragua :

- Civil right Nicaraguan to the life, freedom and safety ;

- Right of Nicaragua constantly to be protected from employment or the threat from the force on behalf of a foreign State ;

- Right of Nicaragua to sovereignty ;

- Right of Nicaragua to lead its business and to decide questions concerned with its internal jurisdiction without interference nor intervention of an unspecified foreign State ;

- Right of the Nicaraguan people to self-determination.

The United States as for them tried to show, without convincing the Court, that the indication of academies measurements would be inappropriate. Their thesis rests entirely on the idea that the conflicts in Central America are the subject of an attempt at payment within the framework of the process of Contadora, and thus the bilateral judicial action would be likely to compromise the prospects for this negotiation. At all events, the Court left itself not influenced by the American argumentation. The existence of a risk, which is sometimes difficult to establish, concerns the obviousness here, in this business the condition is not setting, the facts speak about themselves. The Court estimates that the facts pled by Nicaragua are sufficiently established for the needs for the indication of academies measurements : among all evidence, the official declarations of the American authorities, which are expressly mentioned, appear to have determined the conviction of the Court.

The Court had the occasion to interpret Convention on the genocide for the second time by two demands for indication of academies measurements of the government of Sarajevo. The Court indicated such measurements by ordinances of April 8 and September 13, 1993^100(*). It raised in substance that when Convention on the genocide is applicable, it is not necessary to seek if the reproached acts were made or not during a war intern or international. It added that the obligation that has each State to prevent and repress the crime of genocide according to Convention is not limited territorialement, while recalling that Convention gives competence only to the courts of the territorial State to continue the presumed authors such crimes. It has finally to specify that this instrument made it possible to still engage the responsibility for a State not only on the assumption that this State would have missed with the obligations prevention and of repression envisaged with the text, but if it would have perpetrated itself the crime of genocide.

In the business relating to the Convention of Vienna on the consular relations (Paraguay C. the United States of America)^101(*), Paraguay asked for an indication of academies measurements the International Court of Justice. In the request of Paraguay, it is indicated that into 1992 the authorities of the State of Virginia stopped a Paraguayan national, Mr. Angel Breard, who had been shown, considered, declared guilty of genocide and had been condemned to the capital punishment by a jurisdiction of Virginia in 1993, without to be informed of these rights under subparagraph B of the §1 of article 36 of Convention of Vienna^102(*) ; It is specified that, among these rights, appear the right for the interested party to ask that the qualified consular station of the State to which it is amenable be informed of its arrest and its detention, and its right to communicate with the known as station ; It is also pled that the authorities of the State of Virginia do not have an advised advantage the qualified Paraguayan consular civils servant of Mr. Breard, and those were able to provide him an assistance only since 1996, when the government of Paraguay A learned by its own means that Mr. Breard was imprisoned in the United States.

The Court points out in its reasoning^103(*) that the order of execution of Mr. Breard was given for April 14 and it notes that such an execution would make impossible the adoption of the solution required by Paraguay and would thus carry an irrevocable damage to the rights asserted by this one. Taking into account the above-mentioned considerations, the Court concludes that the circumstances require that it indicate academies measurements urgently, in accordance with article 41 of its Statute.

One year after, the Court was to rule on a request for indication of academies measurements concerning the LaGrand brothers^104(*). In this business as in the preceding one, it is about the violation by the United States of article 36 §1, B, according to which in the event of arrest or of placement in detention of a foreign national, the proper authorities of the State must inform without delay the person of her right to profit from the consular assistance of its country. Thus, hardly the ordinance of the International Court of Justice requiring the stay of execution of Walter LaGrand returned^105(*), the governor of the State of Arizona gave the order for the execution, in spite of the recommendation of the Commission of graces which proposed also the deferment. Just like in the Breard business, the ordinance of the International Court of Justice remained dead letter. This execution carried an irrevocable damage to Germany, damage that the indication of academies measurements by the Court wanted to avoid.

* ⁹⁹ CIJ, military and paramilitary Activities in Nicaragua and against this one (Nicaragua against the United States), ordinance in academies measurements of May 10, 1984, Rec., 1984, p. 169.

* ¹⁰⁰Application of Convention for the prevention and repression of the crime of genocide, academies measurements, ordinance of April 8, 1993, CIJ. Rec., 1993, p. 3 and 325.

* ¹⁰¹ CIJ, Business relating to the Convention of Vienna on the consular relations (Paraguay C. the United States of America), ordinance in academies measurements of April 9, 1998, Rec., 1998, § 1-22.

* ¹⁰² Article 36 paragraphe1 subparagraph B of the Convention of Vienna on the consular relations of April 24, 1993.

* ¹⁰³ CIJ, Business relating to the Convention of Vienna on the consular relations (Paraguay C. the United States of America), demand for indication of academies measurements of April 9, 1998, Rec., 1998, § 23-41.

* ¹⁰⁴ CIJ, Business Walter LaGrand (Germany C. the United States of America), demand for indication of academies measurements of March 3, 1999, §8.

* ¹⁰⁵ It is necessary to announce the speed with which the Court came to a conclusion about the German request, considering the gravity and the extreme urgency of the situation. The German request having been deposited on March 2, 1999 with 19h 30 (The Hague time) and the execution of Walter LaGrand being planned for the following day with 15h (hour of Phoenix), the Court returned its ordinance in the day of March 3, just a few hours before the fateful hour.