Applicability of the Jus Cogens and the Erga Omnes Obligations to the Congo Crisis

By TENYWA JOSEPH MICHEAL

The question of grave human rights violations has been of great concern in the recent decades and this is fueled by the growing recognition that human rights are inherent within the individual. The violation of human rights in the Democratic Republic of Congo is not an isolated and recent phenomenon. In the aftermath of the Second World War, the various civil society organizations at national and international level, formal and informal justice systems and the international community at large took steps and decisions that reflected lessons learned from the World war in regards to the protection of the human rights. Globally, there have been advances towards the protection of human rights yet in the recent times, conflicts like the Russian attack on Ukraine in 2023 and the subsequent massive attack of Palestine by Israel and the M23 rebel’s attacks in Congo rise questions as whether we are regressing in the protection of human rights.

Generally, the respect for human rights is largely recognized as a peremptory norm of jus cogens[1]. This is a principle of customary international Law that has been codified in Article 53 of the Viena Convention on the Law of Treaties. This is also to be found in a number of judgements of the ICJ, notably in the Nicaragua v United States[2] where the court identified the prohibition on the use of force as being a conspicuous example of a rule of international law having character of jus cogens. Precisely, the principle of jus cogens means ‘rules or principles of public policy which cannot be derogated from by legal subjects.  It is important to note that, the universality of human rights protected by the jus cogens principle is of a normative nature. It is a norm which is hierarchically superior to other rules of International Law.[3]

The universality of human rights was initially a normative standard without a legal obligation for all states[4]; however, the Rome statute, the Convention against Torture and the Convention for the prevention and Punishment of Genocide create a legal and binding obligation for states to protect human rights. The Democratic Republic of Congo is equally bound by the peremptory norm of jus cogens and the several covenants and treaties of a universal or quasi-universal character that protect the norm of jus cogens and in particular the protection of human rights. On a sad note; however, if it is to be politely stated, Congo has not been able to protect human rights and the crude reality stands that the state has failed to ensure the protection of human rights. Since it is universally accepted that rights under the jus cogens principle cannot be derogated from no matter the circumstance, questions should arise as to why there has been a persistent violation of this principle with less hope of any immediate stop to the human rights violations in the Democratic Republic of Congo.

In relation to the peremptory norm of Jus cogens, some human rights bestow an obligation and a locus standi to all state parties under the principle of erga omnes partes[5]. This allows any state party to such a convention to bring an action against any state party which violates those conventions.[6] Article 5 of the Rome Statute provides for the crime of genocide, crimes against humanity, war crimes and crimes of aggression. Additionally, The Convention Against Torture (CAT) and the Genocide Convention bestow an obligation under Erga omnes partes for all parties to the conventions to bring action against any state which violates such conventions. This was settled in several cases such as the Barcelona Traction case (Belgium v Spain), Belgium v Senegal[7] and the most recent 2024 decision in South Africa v Israel[8]. Some of such offences are listed in Article 5 of the Rome Statute of the International Criminal Court and discussed in the subsequent Articles of the same statute.

Similarly, Article 2 of the Convention Against Torture implores all state parties to take appropriate legislative, administrative and judicial steps to prevent torture. The government of the Congo however has lacked the political will to implement such laws and judicial steps that bring perpetrators of the violence to book. A case in a point, there has been no law protecting human rights defenders and there have always been gross attacks towards human rights defenders. It is only in 2023 when Congo enacted a law protecting human rights defenders that only meets the basic international standards. The government has been so slow in arresting, investigating and trial of perpetrators of attacks on human rights defenders largely in the mineral rich eastern part of the country which has been ransacked by the war. Worst of all, state agents and other armed groups were document by the UN Joint Human Rights Office in the Congo for having caused threats of physical violence, and intimidation on 387 human rights defenders and 67 journalists within a period of June 2023 to April 2024.[9]

If Congo can be brought to account for the violation of the Convention against Torture or any violation under the genocide convention, two conditions must be satisfied[10] and these are, 1) The particular Convention should forward a common / collective interest. The rationale behind this condition is that the conventions put forward a shared human value, they forward a human value, while embodying a moral and civilizing concern. 2) The particular obligation should be integral to the objecting purpose of the convention; hence, there would be an obligation by any state party to the convention to prove that D.R. Congo breached an obligation which is integral to the convention.

While as it is often difficult to have substantial proof for the breach of the obligations in the covenants, the court is adopting a more pragmatic use of the word ‘plausible’ since the 2009 case of Belgium v Senegal. In the 2024 preliminary judgement and grant of the five provisional measures in South Africa v Israel, the “plausibility standard” has been a lower level of possibility to prove breach of the genocide convention. The court found that it was more certain or more convincing than a mere allegation that attacks in the Gaza strip were genocidal in nature. Such a position gives a ray of hope for the protection and promotion of human rights as the burden of proof is generally lower on the side of the complaining party.

Additionally, human rights are equally protected by the erga omnes obligations of international customary law. These were emphasized in the Barcelona Traction case[11] where court argued that states could have a legal right and a locus standi to bring action against any state which violates the peremptory norm of jus cogens. The rational behind this position is that these are customary law principles which are universally accepted as true and ought to be respected by all legal beings. Such principles of public policy posit an indisputable obligation to protect and promote human rights and equally prohibit any violation of the same.

To hold any state responsible for the violation of human rights under the erga omnes obligations, two conditions must be satisfied and these include;- 1) That the obligation stands from the general body of International law or customary international law. This means that the rights violated must be accepted under international customary law. Such rights must meet the requirements of uniformity such as substantial, generality, and duration of the custom. 2) The obligation must arise from treaties of a universal or quasi universal character. There would be a need to prove that rights which were violated to meet the requirement of a wide spread practice. It should also be able to amount to an opinio juris as the psychological element of customary law. There is no doubt that some human rights that have been violated in Congo meet the above requirements to confer an erga omnes obligation. This therefore raises questions as to why there has been minimal momentum in state parties and all human rights defenders bringing action against the perpetrators of the human rights violations.

Unfortunately, holding a state liable for the human rights violations under the erga omes partes obligation and erga omnes obligations is often treated with politically wise approaches. These can be crudely described as contemptuous and sophistic with the fear to undermine state sovereignty. This has however sheltered gross human rights violations in the Congo. While as there is need to respect the sovereignty of a state, looking at human rights violations in Congo with indifference can have dire consequences and should not only be unacceptable but also unbearable by any rational and legal being.

[1] Article 53 of the Vienna Convention on the Law of Treaties

[2] ICJ Reports, 1986, p.14

[3] Conclusion 2, ‘Draft Conclusions on Identification and Legal consequences of peremptory norms of general International Law (jus cogens), 2022.

[4] Universal Declaration of Human Rights, though not binding, laid a normative standard for all states.

[5] The Convention Against Torture (CAT) and the Genocide Convention

[6] Belgium v Senegal (ICJ Reports), 2012

[7] ICJ Reports (2013)

[8] ICJ Reports (2024)

[9] United Nations Human Rights Office of the High Commissioner, “Democratic Republic of Congo: Targeting human rights defenders must stop, UN expert says, 19 June 2024, available at https://www.ohchr.org/en/press-releases/2024/06/democratic-republic-congo-targeting-human-rights-defenders-must-stop-un accessed on September 1st 2024.

[10] Belgium v Senegal, ICJ Reports (2009)

[11] Barcelona Traction case (Belgium v Spain) ICJ Reports (1964)