Complainant State.
67. Rwanda and Uganda, in their oral arguments before the [African] Commission at its 27th Ordinary
Session held in Algeria had argued that the decision of the Complainant State to submit the communication
directly to the Chairman of the [African] Commission without first notifying them and the Secretary General
of the OAU, is procedurally wrong and therefore fatal to the admissibility of the case. But the African
Commission found otherwise.
68. The [African] Commission finds the conduct of the Respondent States inconsistent with the standard
expected of them under UN Declaration on Friendly Relations, which is implicitly affirmed by the Charters
of the UN and OAU, and which the [African] Commission is mandated by Article 23 of the African Charter to
uphold. Any doubt that this provision has been violated by the Respondent States is resolved by recalling
an injunction in the UN Declaration on Friendly Relations: "No State or group of States has the right to
intervene directly or indirectly, for any reason whatever [sic], in the internal or external affairs of any other
States. Consequently, armed intervention and all other forms of interference or attempted threats against
the personality of the State or against its political, economic and cultural elements are in violation of
international law...Also no State shall organise, assist, foment, finance, incite or tolerate subversive,
terrorist or armed activities directed towards the violent overthrow of the regime of another State or interfere
in civil strife in another State.". The substance of the complaint of the Democratic Republic of Congo
against the Respondents is covered by the foregoing prohibition. The Respondent States have therefore
violated Article 23 of the African Charter. The conduct of the Respondent States also constitutes a flagrant
violation of the right to the unquestionable and inalienable right of the peoples of the Democratic Republic
of Congo to self-determination provided for by Article 20 of the African Charter, especially clause 1 of this
provision.
69. The Complainant State alleges grave and massive violations of human and peoples' rights committed
by the armed forces of the Respondent States in its eastern provinces. It details series of massacres,
rapes, mutilations, mass transfers of populations and looting of the peoples' possessions, as some of those
violations. As noted earlier on, the series of violations alleged to have been committed by the armed forces
of the Respondent States fall within the province of humanitarian law, and therefore rightly covered by the
Four Geneva Conventions and the Protocols additional to them. And the [African] Commission having
found the alleged occupation of parts of the provinces of the Complainant State by the Respondents to be
in violation of the Charter cannot turn a blind eye to the series of human rights violations attendant upon
such occupation.
70. The combined effect of Articles 60 and 61 of the African Charter enables the [African] Commission to
draw inspiration from international law on human and peoples' rights, the Charter of the UN, the Charter of
the OAU and also to take into consideration, as subsidiary measures to determine the principles of law,
other general or special international conventions, laying down rules recognized by Member States of the
OAU, general principles recognised by African States as well as legal precedents and doctrine. By virtue of
Articles 60 and 61, the [African] Commission holds that the Four Geneva Conventions and the two
Additional Protocols covering armed conflicts constitute part of the general principles of law recognised by
African States, and take [the] same into consideration in the determination of this case.
71. It is noted that Article 75(2)
× Art 75. Fundamental guarantees 2. The following acts are and shall remain prohibited at any time and in
any place whatsoever, whether committed by civilian or by military agents: (a) violence to the life, health, or
physical or mental well-being of persons, in particular: (i) murder; (ii) torture of all kinds, whether physical or
mental; (iii) corporal punishment; and (iv) mutilation;
of the First Protocol Additional to the Geneva Conventions of 1949 prohibits the following acts at any time
and in all places whatsoever, whether committed by civilian or by military agents:
1. Violence to life, health, or physical or mental well-being of persons, in particular;
2. Murder;
3. Torture of all kinds, whether physical or mental;
4. Corporal punishment;
5. Mutilations; and
6. Outrages upon personal dignity, in particular, humiliating and degrading treatment; enforced
prostitution and any form of indecent assault.
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