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[p.660]
The International Court of Justice,
Composed as above,
After deliberation,
Having regard to Article 48 of the Statute of the Court and to Articles 31,
44, 45 and 80 of the Rules of Court,
Makes the following Order:
1. Whereas on 23 June 1999 the Government of the Democratic Republic of the
Congo (hereinafter "the Congo") filed in the Registry of the Court an
Application instituting proceedings against the Government of the Republic
of Uganda (hereinafter "Uganda") in respect of a dispute concerning "acts of
armed aggression perpetrated by Uganda on the territory of the Democratic
Republic of the Congo, in flagrant violation of the United Nations Charter
and of the Charter of the Organization of African Unity"; whereas in its
Application the Congo founds the juris-[p 661]diction of the Court on the
declarations made by the two States under Article 36, paragraph 2, of the
Statute; and whereas the Congo concludes its Application with the following
submissions:
"Consequently, and whilst reserving the right to supplement and amplify the
present request in the course of the proceedings, the Democratic Republic of
the Congo requests the Court to:
Adjudge and declare that:
(a) Uganda is guilty of an act of aggression within the meaning of Article 1
of resolution 3314 of the General Assembly of the United Nations of 14
December 1974 and of the jurisprudence of the International Court of
Justice, contrary to Article 2, paragraph 4, of the United Nations Charter;
(b) further, Uganda is committing repeated violations of the Geneva
Conventions of 1949 and their Additional Protocols of 1977, in flagrant
disregard of the elementary rules of international humanitarian law in
conflict zones, and is also guilty of massive human rights violations in
defiance of the most basic customary law;
(c) more specifically, by taking forcible possession of the Inga
hydroelectric dam, and deliberately and regularly causing massive electrical
power cuts, in violation of the provisions of Article 56 of the Additional
Protocol of 1977, Uganda has rendered itself responsible for very heavy
losses of life among the 5 million inhabitants of the city of Kinshasa and
the surrounding area;
(d) by shooting down, on 9 October 1998 at Kindu, a Boeing 727 the property
of Congo Airlines, thereby causing the death of 40 civilians, Uganda has
also violated the Convention on International Civil Aviation signed at
Chicago on 7 December 1944, the Hague Convention of 16 December 1970 for the
Suppression of Unlawful Seizure of Aircraft and the Montreal Convention of
23 September 1971 for the Suppression of Unlawful Acts against the Safety of
Civil Aviation.
Consequently, and pursuant to the aforementioned international legal
obligations, to adjudge and declare that:
(1) all Ugandan armed forces participating in acts of aggression shall
forthwith vacate the territory of the Democratic Republic of the Congo;
(2) Uganda shall secure the immediate and unconditional withdrawal from
Congolese territory of its nationals, both natural and legal persons;
(3) the Democratic Republic of the Congo is entitled to compensation from
Uganda in respect of all acts of looting, destruction, removal of property
and persons and other unlawful acts attr-[p 662]ibutable to Uganda, in
respect of which the Democratic Republic of the Congo reserves the right to
determine at a later date the precise amount of the damage suffered, in
addition to its claim for the restitution of all property removed";
2. Whereas on 19 June 2000 the Congo submitted to the Court a request for
the indication of provisional measures pursuant to Article 41 of the
Statute; and whereas, by Order of 1 July 2000, the Court indicated certain
provisional measures;
3. Whereas on 19 July 2000, within the time-limit fixed for that purpose by
the Order of the Court dated 21 October 1999, the Congo filed its Memorial,
at the conclusion of which it made the following submissions:
"The Democratic Republic of the Congo, while reserving the right to
supplement or modify the present submissions and to provide the Court with
fresh evidence and pertinent new legal arguments in the context of the
present dispute, requests the Court to adjudge and declare:
1. That the Republic of Uganda, by engaging in military and paramilitary
activities against the Democratic Republic of the Congo, by occupying its
territory and by actively extending military, logistic, economic and
financial support to irregular forces operating there, has violated the
following principles of conventional and customary law:
--the principle of non-use of force in international relations, including
the prohibition of aggression;
--the obligation to settle international disputes exclusively by peaceful
means so as to ensure that international peace and security, as well as
justice, are not placed in jeopardy;
--respect for the sovereignty of States and the rights of peoples to
self-determination, and hence to choose their own political and economic
system freely and without outside interference;
--the principle of non-interference in matters within the domestic
jurisdiction of States, which includes refraining from extending any
assistance to the parties to a civil war operating on the territory of
another State;
2. That the Republic of Uganda, by engaging in the illegal exploitation of
Congolese natural resources and by pillaging its assets and wealth, has
violated the following principles of conventional and customary law:
--respect for the sovereignty of States, including over their natural
resources;
--the duty to promote the realization of the principle of equality of
peoples and of their right of self-determination, and consequently [p 663]
to refrain from exposing peoples to foreign subjugation, domination or
exploitation;
--the principle of non-interference in matters within the domestic
jurisdiction of States, including economic matters;
3. That the Republic of Uganda, by committing acts of oppression against the
nationals of the Democratic Republic of the Congo, by killing, injuring,
abducting or despoiling those nationals, has violated the following
principles of conventional and customary law:
--the principle of conventional and customary law involving the obligation
to respect and ensure respect for fundamental human rights, including in
times of armed conflict;
--the entitlement of Congolese nationals to enjoy the most basic rights,
both civil and political, as well as economic, social and cultural;
4. That, in light of all the violations set out above, the Republic of
Uganda shall, to the extent of and in accordance with, the particulars set
out in Chapter VI of this Memorial, and in conformity with customary
international law:
--cease forthwith any continuing internationally wrongful act, in particular
its occupation of Congolese territory, its support for irregular forces
operating in the Democratic Republic of the Congo, its unlawful detention of
Congolese nationals and its exploitation of Congolese wealth and natural
resources;
--make reparation for all types of damage caused by all types of wrongful
act attributable to it, no matter how remote the causal link between the
acts and the damage concerned;
--accordingly make reparation in kind where this is still physically
possible, in particular restitution of any Congolese resources, assets or
wealth still in its possession;
--failing this, furnish a sum covering the whole of the damage suffered,
including, in particular, the examples mentioned in paragraph 6.65 of this
Memorial;
--further, in any event, render satisfaction for the insults inflicted by it
upon the Democratic Republic of the Congo, in the form of official
apologies, the payment of damages reflecting the gravity of the
infringements and the prosecution of all those responsible;
--provide specific guarantees and assurances that it will never again in the
future commit any of the above-mentioned violations against the Democratic
Republic of the Congo"; [p 664]
4. Whereas on 20 April 2001, within the time-limit fixed for that purpose by
the Order of the Court dated 21 October 1999, Uganda filed its
Counter-Memorial; whereas in Chapter XVIII of its Counter-Memorial the
Ugandan Government contended that "[t]he Republic of Uganda has for more
than seven years been the victim of the military operations and other
destabilizing activities of hostile armed groups either sponsored or
tolerated by successive Congolese governments"; and whereas it added: "[N]ow
that the DRC has introduced proceedings, Uganda must take appropriate steps
to ensure that justice is done, and that the responsibility generated by
Congolese policies is recognised"; whereas, in the section entitled "C. The
Counter-Claims" in the same Chapter of its Counter-Memorial, the Ugandan
Government stated the following:
"In the first place, the Government of Uganda relies upon various principles
of customary or general international law. Thus the Court is asked to
adjudge and declare that the Democratic Republic of the Congo is responsible
for the following breaches of its obligations under customary or general
international law.
(a) The obligation not to use force against Uganda
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
(b) The obligation not to intervene in the internal affairs of Uganda
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
(c) The obligation not to provide assistance to armed groups carrying out
military or paramilitary activities in and against Uganda by training,
arming, equipping, financing and supplying such armed groups
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
In the second place, the Government of Uganda relies upon Article 2,
paragraph 4 of the United Nations Charter . . .
[That provision] is relied upon to support, in the alternative, the three
obligations of customary law invoked . . . above";
whereas that Chapter of the Counter-Memorial also includes sections entitled
"D. Specific Examples Of Congolese Aggression", "E. The Attack On The
Ugandan Embassy And The Inhumane Treatment Of Ugandan Diplomatic Personnel
And Other Ugandan Nationals", and "F. The DRC’s Violations Of Its
Obligations Under The Lusaka Agreement"; and whereas the Ugandan Government
concludes its Counter-Memorial with the following submissions:
"Reserving its right to supplement or amend its requests, the Republic of
Uganda requests the Court:
(1) To adjudge and declare in accordance with international law
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . .[p 665]
(C) That the Counter-claims presented in Chapter XVIII of the present
Counter-Memorial be upheld.
(2) To reserve the issue of reparation in relation to the Counter-claims for
a subsequent stage of the proceedings";
***
5. Whereas on 11 June 2001, at a meeting held by the President of the Court
with the Agents of the Parties, the Congo, invoking Article 80 of the Rules
of Court, raised certain objections to the admissibility of the
counter-claims made in the Counter-Memorial of Uganda; whereas during that
meeting the two Agents agreed that their respective Governments would file
written observations on the question of the admissibility of the
counter-claims; and whereas time-limits were agreed for this purpose;
6. Whereas on 28 June 2001 the Agent of the Congo filed in the Registry the
written observations of the Congolese Government on the question of the
admissibility of the Respondent’s counter-claims; and whereas, by letter
dated 28 June 2001, the Registrar communicated a copy of those observations
to the Ugandan Government;
7. Whereas the Congo in its written observations maintains that "Uganda’s
perfunctory and incomplete claims are incompatible with the formal
requirements [of] Article 80, paragraph 2, of the Rules of Court"; whereas
it contends that
"[t]he assertions presented by Uganda as counter-claims cannot be considered
to ‘appear’ in the submissions in the Counter-Memorial [and] neither what
the Court is being requested to adjudge and declare . . . nor, moreover,
whether and to what extent Uganda is asserting a claim for reparation . . .
can be determined from the Counter-Memorial";
whereas it states that "[t]he initial difficulty is quite simply to
identify, even broadly, what those ‘claims’ are"; whereas it adds that "[i]t
is unthinkable that the issue of reparation could be settled -- with respect
to the actual principle of the right to reparation, not the modalities of
that reparation ¾ at ‘a subsequent stage of the proceedings’", that "having
once filed its Counter-Memorial, Uganda would no longer be entitled to
formulate one or more counter-claims by presenting demands for reparation"
and that "[a]ccordingly, it is necessary either to presume a claim not
appearing in the submissions or to dismiss those submissions as defective";
and whereas it concludes that there is nothing to "prevent . . . the Court
from declaring Uganda’s ‘claims’ to be incompatible with the requirements of
Article 80, paragraph 2, of the Rules";
8. Whereas the Congo states, "not only in the alternative but also on a
hypothetical basis", the following: [p 666]
"The Democratic Republic of the Congo will assume for purposes of its
argument that the [counter-]claims relate to the entire (undefined) set of
facts recounted in Chapter XVIII [of Uganda’s Counter-Memorial], although
they cannot be extended to reparations, which are not sought therein. In
this connection it will distinguish the following four categories of
allegations:
--the claim relating to alleged aggression by the Democratic Republic of the
Congo as far as it concerns the period beginning in 1998;
--the claim relating to alleged aggression by the Democratic Republic of the
Congo as far as it concerns the period prior to the creation of the
Democratic Republic of the Congo;
--the claims relating to alleged attacks on Ugandan diplomatic premises and
personnel in Kinshasa;
--the claims relating to alleged violations by the Democratic Republic of
the Congo of the Lusaka Agreements.
The term ‘claim’ is used for convenience hereinafter, even though it is
decidedly inappropriate . . . as a designation for Uganda’s contentions. The
Democratic Republic of the Congo will show in any event that none of those
claims, other than the first one, meets the requirement of a ‘direct
connection’ imposed by Article 80, paragraph 1, of the Rules of Court";
9. Whereas the Congo first points out that "Uganda . . . justifies its
occupation of Congolese territory by claiming circumstances of ‘lawful self-defence’
[and that, a]ccording to the Respondent, this self-defence came in response
to earlier aggression by the Democratic Republic of the Congo, of which it
claims to have been the victim"; whereas the Congo adds:
"That aggression allegedly began in 1994, when the Congolese State was known
by another name (Zaire) and was governed by another Head of State within the
context of another political régime. It is said to have temporarily ceased
from May 1997 until May 1998, when it allegedly resumed. Uganda does not
however claim to be reacting to attacks said to have been carried out
against it during all those periods. The Respondent argues that three . . .
periods must be carefully distinguished in order to identify the ‘acts of
aggression’ motivating Uganda’s acts of ‘self-defence’, the third and last
period identified being the only one relevant to the argument";
and whereas it quotes in this connection from paragraphs 360 to 366 of
Uganda’s Counter-Memorial, wherein Uganda refers, for purposes of the
application of Article 51 of the United Nations Charter to the facts of the
case, to the following "three separate periods": "from early 1994 to [p 667]
approximately May 1997", "the period May 1997 onwards" and "the period May
to August 1998"; whereas the Congo states that:
"[a]t this preliminary stage of consideration of the admissibility of the
questions presented by way of counter-claims, it . . . stress[es] the
importance of focusing on the logic underlying the reasoning in Uganda’s
Counter-Memorial [, which ] . . . consists of invoking self-defence as the
justification for its occupation of Congolese territory from August 1998, in
response to aggression allegedly beginning in May of that year";
and whereas it infers from this that "[a] contrario, Uganda does not rely on
events occurring during the first two periods mentioned as support for its
self-defence argument";
10. Whereas the Congo, referring to the requirement of a "direct connection"
laid down by Article 80, paragraph 1, of the Rules of Court, contends that
"in order for a counter-claim to be accepted as such, [the requirement of a
‘direct connection’] presupposes, first, that the new claim is connected in
fact as well as in law with the claims originally formulated by the
[applicant] and, second, that the arguments advanced by the counter-claimant
must both support the counter-claim and enable [it] to refute some or all of
the principal claims originally made against it";
whereas it states that "[t]he existence of a factual connection has been
assessed by the Court on the basis of several factors, which overall may be
summarized as a requirement of unity of place, action and time", that "[g]enerally
speaking, [a connection in law] presupposes that the legal subject-matter of
the two claims (principal claim and counter-claim) is identical", and that
"there is [such] a legal connection . . . only if a violation of the same
legal instrument(s) or the same legal rules is at issue in both claims"; and
whereas the Congo adds that
"[t]he practice shows that a direct connection between the counter-claim and
the principal claim requires, in addition to the demonstration of a
relationship in fact and in law between them, that the counter-claimant’s
arguments must both support the counter-claim and be pertinent for purposes
of rebutting the principal claim";
11. Whereas the Congo states, with respect to the period from May to August
1998, that "Uganda’s claim . . . satisfies the requirement under Article 80
of a direct connection in respect both of the existence of factual and legal
links and of the relationship between the claim and the defences asserted to
the principal claim"; [p 668]
12. Whereas the Congo maintains that this is not so as regards "[t]he claim
relating to alleged aggression by the Democratic Republic of the Congo as
far as it concerns the period prior to [its] creation"; whereas it asserts
that "the events relating to [these] claims [by Uganda] and those concerned
by the Congo’s Application did not take place during the same period, far
from it"; whereas it considers that "the Respondent has not shown any
relationship between [this] question [which] it presents by way of
counter-claim and any of its defences"; and whereas the Congo further argues
that Uganda
"will not be entitled to vary its arguments at a later stage in the
proceedings by suddenly claiming that the military activities it has
conducted since 1998 on the territory of the Congo ultimately represent a
reaction to the various armed actions allegedly taken against it since 1994
by the Congo";
whereas it adds that "[s]uch a sudden and radical change in the argument
would breach the principle of good faith, which is manifested in procedural
terms by inter alia the doctrine of estoppel"; and whereas it explains that,
given the increased co-operation which took place between the Ugandan
authorities and the new Congolese authorities upon the creation of the
Democratic Republic of the Congo, Uganda "must be deemed to have waived a
claim for reparation or the right to draw any legal inferences from events
occurring before the social and political revolution of 1997";
13. Whereas, in respect of the "claims relating to alleged attacks on
Ugandan diplomatic premises and personnel in Kinshasa", the Congo maintains
that they "do not meet the requirement of a ‘direct connection’", as "those
events are devoid of any connection whatsoever, whether legal or factual,
with the subject-matter of the claims initially asserted" by the Congo;
whereas it states that "[these incidents] indisputably occurred during the
same period as that in question in the Democratic Republic of the Congo’s
main claims", but that the
"attacks on Ugandan premises, property and diplomatic personnel in Kinshasa,
on the one hand, and the aggression suffered by the Democratic Republic of
the Congo, the continuing occupation of part of its territory, the unlawful
exploitation of its natural resources and the massive violation of
fundamental rights of part of its population, on the other",
do not constitute "facts of the same nature . . ."; whereas it further
states:
"While Uganda argues that there have been violations of the rules governing
treatment of foreign nationals or of those concerning individual rights, the
Democratic Republic of the Congo’s Application is based on violations of the
principles of non-use of force, non-inter-[p 669]vention, sovereignty of
States (including over their natural resources), and of the rules governing
the protection of fundamental human rights, including during times of armed
conflict";
and it concludes in this regard that the Parties cannot be considered as
"pursu[ing] . . . the same legal aim";
14. Whereas the Congo also maintains that Uganda’s claims "relating to
alleged violations of the Lusaka Agreements by the Democratic Republic of
the Congo do not meet the requirement of a ‘direct connection’"; whereas it
argues that,
"[w]hile it is conceivable . . . that the Respondent might focus the debate
on alleged prior acts of aggression which it suffered at the hands of the
Applicant . . ., it would appear strange at the very least to broaden the
debate to cover the issue of the Congolese national dialogue, which involves
participants, and raises questions,
specific to the Democratic Republic of the Congo’s internal political régime
and its functioning . . . [and to] the vicissitudes and temporary
difficulties having marked the relations between the Democratic Republic of
the Congo and MONUC . . .";
whereas the Congo accordingly concludes that
"[e]ven though it is always possible to establish some links between those
specific issues and the problem of aggression against, and the occupation
of, the Democratic Republic of the Congo . . . it is more than doubtful that
what we find there are, in the words appearing consistently in the Court’s
jurisprudence, facts ‘of the same nature’";
whereas it further observes "that all the categories of events mentioned
above relate to legal rules which are . . . radically different from those
underlying the Democratic Republic of the Congo’s Application"; whereas in
this regard it contends the following:
"[The Congo’s Application] is based essentially on the major treaty-based
and customary principles of the prohibition on the use of force,
non-intervention in internal affairs, respect for the permanent sovereignty
of States and their peoples over their natural resources and the general
obligation to respect and enforce human rights. This part of Uganda’s claims
on the other hand is based exclusively on one particular, specific
instrument, referred to as the Lusaka Agreement, which represents, in the
terms used by Uganda, a ‘comprehensive system of public order’ . . .";
and whereas the Congo then goes on to point out that " Article 80 of the
Rules of Court indicates by its very terms that the connection must be with
the subject-matter of the principal claim" and that[p 670]
"it is not only wrong in terms of fact but also logically impossible to
argue that the subject-matter of the Democratic Republic of the Congo’s
claim could include, even indirectly and remotely, a factual and legal
context which did not even exist at the time it was filed";
whereas the Congo adds that "this part of [the] counter-claims . . . is not
at the same time a crucial defence argument, as required by Article 80,
paragraph 1, of the Rules of Court, as those requirements have been
clarified in the Court’s jurisprudence"; and whereas it concludes as
follows:
"The Democratic Republic of the Congo does not deny Uganda the right to
refer a dispute to the Court concerning any violation of the Lusaka
Agreements, or the Court’s right to adjudicate upon that violation. That
dispute should, however, be referred to the Court in the normal way, not by
the exceptional process of the counter-claims procedure";
15. Whereas the Congo maintains finally, "[i]n the further alternative", and
even assuming, "in any event", that "all the Ugandan counter-claims satisfy
the requirements of paragraphs 1 and 2 of Article 80", that those
counter-claims "should not all be joined to the main proceedings pursuant to
Article 80, paragraph 3, of the Rules of Court"; whereas, in the Congo’s
view, so to join the claims would be contrary to the "requirements of the
sound administration of justice"; and whereas the Congo considers that in
the present case such joinder "would oblige both the Court and the Parties
to treat as an overall entity issues which are fundamentally distinct and
separate, are governed by quite different legal rules and refer to facts
having occurred during periods which were in some cases quite remote from
one another";
16. Whereas at the close of its Written Observations the Congo
"requests the Court to adjudge and declare that the claims put forward by
Uganda in its Counter-Memorial are inadmissible as counter-claims:
--because they do not satisfy the formal conditions laid down by Article 80,
paragraph 2, of the Rules of Court;
--in the alternative, as regards the claims concerning respectively the
aggression alleged to have been committed by the Congolese State before May
1997, the alleged attacks on Ugandan diplomatic premises and personnel in
Kinshasa and the alleged breaches of the Lusaka Agreements, because they do
not satisfy the condition of ‘direct connection’ laid down by Article 80,
paragraph 1, of the Rules of Court;
--in the further alternative, and in any event, because it would not be
appropriate, on the basis of considerations of expediency deriving from the
requirements of the sound administration of justice, to [p 671] join the
Ugandan claims to the proceedings on the merits pursuant to Article 80,
paragraph 3, of the Rules of Court";
17. Whereas on 15 August 2001 the Agent of Uganda filed in the Registry the
observations of his Government on the admissibility of the counter-claims
made in its Counter-Memorial, taking into account the observations submitted
by the Congo; and whereas, by letter dated 15 August 2001, the First
Secretary of the Court, Acting Registrar, communicated a copy of the Ugandan
Government’s observations to the Congolese Government;
18. Whereas Uganda claims in its Written Observations that "[i]t is not the
case that Article 80, paragraph 2, contains ‘formal requirements’"; whereas
it asserts that "the counter-claims are set out in the Counter-Memorial in
appropriate sequence"; whereas it observes that sections C, D, E, and F of
Chapter XVIII of the Counter-Memorial show the structure and sequence of the
statement of Uganda’s counter-claims and focus upon the bases of those
claims, and that it is difficult to see what further precision could be
required; and whereas, in respect of the Congo’s complaint that "it is not
possible to determine if and to what extent Uganda presents a claim for
reparation", Uganda invokes the Court’s practice and asserts that "[t]he
Submissions in the Counter-Memorial state the position of Uganda with
complete clarity";
19. Whereas, in respect of the admissibility of its counter-claims, Uganda
sets out "The Criteria For The Application Of The Provisions Of Article 80"
of the Rules of Court; whereas it states that the Court "has . . . set forth
a number of ancillary criteria to assist in the application of the test of
direct connection"; whereas it claims that "there is at least one respect in
which [the Congo] departs substantially from the generally recognized
principles concerning the application of Article 80"; whereas it states that
"[t]his departure takes the form of a[n] . . . exposition which seeks to
establish that a condition of admissibility is that the counter-claim must
have a close connection with the means of defence"; and whereas it adds:
"This argument is baseless in principle and, indeed, . . . the Applicant
State accepts that there is no necessary coincidence between a defence and a
counter-claim. In any case, there is no support in either the doctrine or
the jurisprudence for this invention";
20. Whereas Uganda notes that, in the Congo’s view, "the counter-claim
relating to the use of force in the period May to August 1998 is admissible"
and "Uganda is content to acknowledge this concession"; whereas it states
"[h]owever, [that] the [Applicant’s] Observations are silent as to the
admissibility of the counter-claim insofar as it relates to events
subsequent to August 1998"; whereas it adds that "Uganda’s [p 672]
counter-claim describes the continuous and uninterrupted use of force
against Uganda for which the Congolese State bears responsibility from 1994
to the present"; and whereas it concludes on this point that "[t]here is no
basis for limiting the scope of the counter-claim solely to the period
May-August 1998";
21. Whereas, in regard to the period prior to May 1998, Uganda considers
that its claim "satisfies the requirement of a ‘direct connection’ imposed
by Article 80, paragraph 1, of the Rules of Court"; whereas it contends in
this connection that, "[b]y conceding the admissibility of the counter-claim
for the period from May through August 1998, the DRC has effectively
conceded its admissibility for the entire period from 1994 to the present";
whereas it argues that "the counter-claim describes a continuous pattern of
behavior by the DRC, involving the illegal use of force against . . . Uganda
without interruption from 1994 to the present"; whereas it adds that "the
heads of the Congolese State have changed, and the State itself has been
renamed, but the illegal activities and the main actors identified in the
counter-claim have continued without interruption since 1994" and that,
"[i]n particular, the six armed groups . . ., whose presence in the DRC was
formally acknowledged by the Congolese government in July 1999, are the same
armed groups that carried out regular attacks against Uganda from Congolese
territory in the period 1994-1998";
and whereas Uganda concludes from this:
"The unlawful activities conducted or supported by the Congolese State prior
to May 1998 are plainly part of the ‘same complex of facts’ as those that
took place subsequent to that date, and they are part of the ‘same complex
of facts’ as those upon which the DRC’s own ‘illegal use of force’ claim is
based. Thus, the facts upon which Uganda’s counter-claim is based are
directly connected to the subject matter of the DRC’s claim";
whereas Uganda further maintains that "[t]here is also a direct legal
connection between Uganda’s counter-claim, including that part of it
covering the years 1994-1998, and the original claim presented by the DRC";
and whereas it states to that effect that "Uganda’s counter-claim is based,
like the DRC’s claim, on the same legal prohibition on the use of force in
international relations, and the same prohibition on providing military
support to irregular armed forces" and that "[t]he counter-claim alleges, [p
673] as does the original claim, a violation of Article 2, paragraph 4, of
the United Nations Charter";
22. Whereas in the section of its Written Observations entitled "The
Counter-Claim Relating To The Attack On The Ugandan Embassy And The Inhumane
Treatment Of Ugandan Diplomatic Personnel And Other Ugandan Nationals"
Uganda contends that "[this] counter-claim satisfies Article 80, paragraph
1"; whereas it points out in this connection that:
"All of the criteria this Court has established for determining compliance
with the ‘directly connected’ standard have been met: the facts at issue are
of the same nature [as] many of the facts upon which the DRC’s claims are
based, they are all part of the same factual complex, and Uganda is pursuing
many of the same legal aims as the Congo";
and whereas it adds that "the goal of procedural economy would be served by
allowing Uganda’s counter-claim [to] be heard together with Congo’s claim";
whereas in support of its assertions Uganda refers in particular to the
following passage from the Congo’s Application: "The Democratic Republic of
the Congo founds its case on the armed aggression [emphasis in the
original] which it has suffered since the invasion of its territory on 2
August 1998, together with all of the . . . acts resultant therefrom
[emphasis added by Uganda] . . ."; whereas it infers from this that "by
Congo’s own admission, this case is founded, at least in part, on all of the
acts resultant from the purported invasion of its territory on or around 2
August 1998"; whereas it states that
"[s]ince the attacks on the Ugandan Embassy and Ugandan nationals began just
days later on 11 August and were a direct outgrowth of the hostilities on
Congolese territory, Congo’s own logic shows that the Embassy attacks are
directly connected to the DRC’s claims";
whereas in order to demonstrate that "[the] facts at the root of this
portion of [its] counter-claims are also of the same nature as many of the
so-called facts underpinning Congo’s claim", it further makes the following
specific points:
"the DRC accuses Uganda of ‘arbitrary detentions’ and ‘inhuman and degrading
treatment’. Application, p. 9. In a similar vein, Uganda’s counter-claim
attacks the DRC’s unlawful detention and inhumane treatment of Ugandan
diplomatic personnel and other nationals. Counter-Memorial, paras. 397, 399.
Moreover, the DRC accuses [p 674] Uganda of ‘looting of public and private
institutions’ and ‘theft of property of the civilian population’.
Application, p. 9. Uganda, for its part, targets Congo’s confiscation of . .
. property belonging to the Government of Uganda and Ugandan diplomatic
personnel. Counter-Memorial, para. 397. Finally, and not least
significantly, all the acts in question were allegedly committed by the
armies of the two States that are parties to this proceeding. Just as DRC
troops were responsible for the attacks on the Ugandan Embassy and Ugandan
nationals, . . . Congo claims that Ugandan troops committed similar
offenses";
whereas it further states that "[t]he events in dispute . . . took place at
the same time and on the same territory (i.e., the territory of the
Democratic Republic of the Congo)"; and, in support of its contentions
concerning a legal connection, Uganda adds the following:
"At page 17 of its Application, for example, Congo asserts that Uganda is
guilty of ‘human rights violations in defiance of the most basic customary
law’. Elsewhere, the DRC contends that it is entitled to ‘compensation from
Uganda’ for all acts of looting and theft. Application, p. 19. In a parallel
fashion, Uganda’s counter-claim on this score is based on the DRC’s
‘breaches of the standard of general international law based upon
universally recognized standards of human rights’, Counter-Memorial, para.
407, and demands compensation for the unlawful expropriation of Ugandan
property. Counter-Memorial, para. 408";
23. Whereas, in respect of its "Counter-Claim Relating To The DRC’s
Violations Of Its Obligations Under The Lusaka Agreement", Uganda asserts
that
"[t]he Lusaka Agreement . . . addresses the same issues as those addressed
by the DRC in its Application and Memorial: armed conflict between Uganda
and the DRC; the presence of Ugandan armed forces on Congolese territory;
the timing and conditions for the withdrawal of such forces; the harbouring
of armed groups seeking to destabilise neighbouring countries; the support
of irregular forces operating against neighbouring countries; the obligation
to refrain from harbouring or supporting such forces; and the commitment to
disarm and demobilise them";
and that that Agreement[p 675]
"establishes a comprehensive system of public order whose purpose is to end
the armed conflict in the Democratic Republic of the Congo, the very same
armed conflict that is the subject matter of the DRC’s Application, and to
bring peace and stability to the DRC, Uganda and neighbouring countries";
whereas Uganda also denies the Congo’s argument that, "[as] the Lusaka
Agreement was signed on 10 July 1999, which [was] subsequent to the filing
of the Application on 23 June 1999", that claim "refers to a period of time
different from that referred to in the claim of the Democratic Republic of
the Congo"; whereas it states in this regard that "[i]n fact, the DRC’s
Memorial complains of Uganda’s alleged occupation of Congolese territory
right up to the time of its filing ¾ 19 July 2000 ¾ which is approximately
one year after the Lusaka Agreement became effective"; and whereas it notes
that the Congo in its Memorial "accuse[s] Uganda of specific acts of armed
aggression between August 1999 and March 2000 . . . [and] of violating the
Lusaka Agreement by virtue of armed activities on Congolese territory
between 14 and 16 August 1999"; whereas Uganda concludes from the foregoing
that:
"[its] counter-claim relating to the DRC’s violations of the Lusaka
Agreement is admissible under Article 80 of the Rules of Court, and the
DRC’s challenge must be rejected";
24. Whereas at the close of its Written Observations Uganda requests the
Court:
"First, to decide that the counter-claims presented in the Counter-Memorial
satisfy the provisions of Article 80 of the Rules of Court; and
Second, to reject all the requests prescribed in the Observations of the
Democratic Republic of the Congo dated 25 June 2001";
25. Whereas, by letter dated 5 September 2001, the Congo submitted comments
on Uganda’s written observations, and whereas it further stated in that
letter that it "holds itself fully at the Court’s disposal to amplify its
arguments further at such oral hearings as the Court may consider it
appropriate to hold"; and whereas, by letter dated 8 October 2001, Uganda
noted that "[these] further comments offered on behalf of the Democratic
Republic of the Congo were not . . . requested by the Court and were
presented without authorisation", that "[i]n the circumstances, the letter
signed by the Agent of the Democratic Republic of the Congo cannot form part
of the pleadings in the case" and that "[t]he [p 676] Republic of Uganda
accordingly refrains from commenting upon the substance of the issues raised
in the letter signed by the Agent of the Democratic Republic of the Congo
and reserves its position on the matters raised therein";
26. Whereas, having received full and detailed written observations from
each of the Parties, the Court is sufficiently well informed of the
positions they hold with regard to the admissibility of the claims presented
as counter-claims by Uganda in its Counter-Memorial; and whereas,
accordingly, it does not appear necessary to hear the Parties further on the
subject;
***
27. Whereas Article 80 of the Rules of Court in the version applicable to
the present proceedings provides:
"1. A counter-claim may be presented provided that it is directly connected
with the subject-matter of the claim of the other party and that it comes
within the jurisdiction of the Court.
2. A counter-claim shall be made in the Counter-Memorial of the party
presenting it, and shall appear as part of the submissions of that party.
3. In the event of doubt as to the connection between the question presented
by way of counter-claim and the subject-matter of the claim of the other
party the Court shall, after hearing the parties, decide whether or not the
question thus presented shall be joined to the original proceedings";
28. Whereas it is necessary for the Court to consider whether the Ugandan
claims in question constitute "counter-claims" and, if so, whether they
fulfil the conditions set out in Article 80 of the Rules of Court;
29. Whereas, in its Order of 17 December 1997 in the case concerning
Application of the Convention on the Prevention and Punishment of the Crime
of Genocide, the Court stated that:
"a counter-claim has a dual character in relation to the claim of the other
party; whereas a counter-claim is independent of the principal claim in so
far as it constitutes a separate ‘claim’, that is to say an autonomous legal
act the object of which is to submit a new claim to the Court, and, whereas
at the same time, it is linked to the principal claim, in so far as,
formulated as a ‘counter’ claim, it reacts to it; whereas the thrust of a
counter-claim is thus to widen the original subject-matter of the dispute by
pursuing objectives other than the mere dismissal of the claim of the
Applicant in the main proceedings — for example, that a finding be made
against the Applicant; and, whereas in this respect, the counter-claim is
distinguishable from a defence on the merits" (I.C.J. Reports 1997, p. 256,
para. 27); [p 677]
and whereas in the present case the claims presented as counter-claims by
Uganda in its Counter-Memorial seek, over and above the dismissal of the
claims made by the Congo, a ruling establishing the Congo’s responsibility
and awarding reparations on that account; and whereas such claims constitute
"counter-claims";
30. Whereas the Congo does not deny that Uganda’s claims fulfil the
"jurisdictional" condition laid down in paragraph 1 of Article 80 of the
Rules of Court; whereas it contends, however, that those claims are
inadmissible as counter-claims because they do not fulfil the other
conditions set out in that provision;
**
31. Whereas the Congo asserts as its principal argument that "the claims put
forward by Uganda in its Counter-Memorial are inadmissible as
counter-claims" on the ground that they "do not satisfy the formal
conditions laid down by Article 80, paragraph 2, of the Rules of Court";
32. Whereas Article 80, paragraph 2, of the Rules of Court provides that
"[a] counter-claim shall be made in the Counter-Memorial of the party
presenting it, and shall appear as part of the submissions of that party";
whereas the counter-claims of Uganda were set out in various sections of
Chapter XVIII of its Counter-Memorial entitled "The State Responsibility Of
The DRC And The Counter-Claims of the Republic of Uganda"; whereas those
claims refer to acts by which the Congo is said to have violated a number of
international obligations in regard to Uganda; and whereas Uganda, in the
submissions in its Counter-Memorial, requests the Court
"(1) To adjudge and declare in accordance with international law
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
(C) That the Counter-claims presented in Chapter XVIII of the present
Counter-Memorial be upheld.
(2) To reserve the issue of reparation in relation to the Counter-claims for
a subsequent stage of the proceedings";
33. Whereas Uganda’s counter-claims could have been presented in a clearer
manner; whereas, however, their presentation does not deviate from the
requirements of Article 80, paragraph 2, of the Rules of Court to such an
extent that they should be held inadmissible on that basis; whereas,
moreover, it was permissible for Uganda to refer to a request for reparation
without the modalities thereof being stated at this stage; and whereas the
Congo’s principal submission must therefore be denied;
**[p 678]
34. Whereas the Congo contends in the alternative that
"the claims concerning respectively the aggression alleged to have been
committed by the Congolese State before May 1997, the alleged attacks on
Ugandan diplomatic premises and personnel in Kinshasa and the alleged
breaches of the Lusaka Agreements . . . do not satisfy the condition of
‘direct connection’ laid down by Article 80, paragraph 1, of the Rules of
Court",
and that Uganda’s counter-claims in this respect are therefore inadmissible
as such;
*
35. Whereas the Court has in its jurisprudence already had occasion to state
in the following terms the reasons why the admissibility of a counter-claim
as such is contingent on the condition of a "direct connection" set out in
Article 80, paragraph 1, of the Rules of Court: "whereas the Respondent
cannot use [the counter-claim procedure] . . . to impose on the Applicant
any claim it chooses, at the risk of infringing the Applicant’s rights and
of compromising the proper administration of justice" (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Yugoslavia), Counter-Claims, Order of 17 December 1997,
I.C.J. Reports 1997, p. 257, para. 31; Oil Platforms (Islamic Republic of
Iran v. United States of America), Counter-Claim, Order of 10 March 1998,
I.C.J. Reports 1998, p. 203, para. 33);
36. Whereas the Rules of Court do not however define what is meant by
"directly connected"; whereas it is for the Court to assess whether the
counter-claim is sufficiently connected to the principal claim, taking
account of the particular aspects of each case; and whereas, as a general
rule, whether there is the necessary direct connection between the claims
must be assessed both in fact and in law;
37. Whereas it is appropriate in this case for the Court to consider
Uganda’s counter-claims under separate heads, according to whether they
refer to: (1) acts of aggression allegedly committed by the Congo against
Uganda; (2) attacks on Ugandan diplomatic premises and personnel in Kinshasa
and on Ugandan nationals for which the Congo is alleged to be responsible;
and (3) alleged violations by the Congo of the Lusaka Agreement;
*
38. Whereas, in respect of Uganda’s first counter-claim (acts of aggression
allegedly committed by the Congo against Uganda), the [p 679] Congo
maintains that the counter-claim satisfies the requirement under Article 80
of a direct connection only for the period from May to August 1998; whereas,
as already recalled above (see paragraph 36), as a general rule, the
existence of a direct connection between the counter-claim and the principal
claim must be assessed both in fact and in law; whereas, contrary to the
Congo’s contention, the establishment of such a connection is not subject to
the condition that "the counter-claimant’s arguments must both support the
counter-claim and be pertinent for the purposes of rebutting the principal
claim"; whereas it is evident from the Parties’ submissions that their
respective claims relate to facts of the same nature, namely the use of
force and support allegedly provided to armed groups; whereas, while
Uganda’s counter-claim ranges over a longer period than that covered by the
Congo’s principal claim, both claims nonetheless concern a conflict in
existence between the two neighbouring States, in various forms and of
variable intensity, since 1994; whereas they form part of the same factual
complex; and whereas each Party seeks to establish the other’s
responsibility based on the violation of the principle of the non-use of
force incorporated in Article 2, paragraph 4, of the United Nations Charter
and found in customary international law, and of the principle of
non-intervention in matters within the domestic jurisdiction of States;
whereas the Parties are thus pursuing the same legal aims;
39. Whereas the Court considers that the first counter-claim submitted by
Uganda is thus directly connected, in regard to the entire period covered,
with the subject-matter of the Congo’s claims;
*
40. Whereas, in respect of Uganda’s second counter-claim (attacks on Ugandan
diplomatic premises and personnel in Kinshasa, and on Ugandan nationals, for
which the Congo is alleged to be responsible), it is evident from the case
file that the facts relied on by Uganda occurred in August 1998, immediately
after its alleged invasion of Congolese territory; whereas each Party holds
the other responsible for various acts of oppression allegedly accompanying
an illegal use of force; whereas these are facts of the same nature, and
whereas the Parties’ claims form part of the same factual complex mentioned
in paragraph 38 above; and whereas each Party seeks to establish the
responsibility of the other by invoking, in connection with the alleged
illegal use of force, certain rules of conventional or customary
international law relating to the protection of persons and property;
whereas the Parties are thus pursuing the same legal aims; [p 680]
41. Whereas the Court considers that the second counter-claim submitted by
Uganda is therefore directly connected with the subject-matter of the
Congo’s claims;
*
42. Whereas, in respect of Uganda’s third counter-claim (alleged violations
by the Congo of the Lusaka Agreement), it is to be observed from the
Parties’ submissions that Uganda’s claim concerns quite specific facts;
whereas that claim refers to the Congolese national dialogue, to the
deployment of the United Nations Organization Mission in the Democratic
Republic of the Congo (MONUC) and to the disarmament and demobilization of
armed groups; whereas these questions, which relate to methods for solving
the conflict in the region agreed at multilateral level in a ceasefire
accord having received the "strong support" of the United Nations Security
Council (resolutions 1291 (2000) and 1304 (2000)), concern facts of a
different nature from those relied on in the Congo’s claims, which relate to
acts for which Uganda was allegedly responsible during that conflict;
whereas the Parties’ respective claims do not therefore form part of the
same factual complex; and whereas the Congo seeks to establish Uganda’s
responsibility based on the violation of the rules mentioned in paragraph 38
above, whilst Uganda seeks to establish the Congo’s responsibility based on
the violation of specific provisions of the Lusaka Agreement; whereas the
Parties are thus not pursuing the same legal aims;
43. Whereas the Court considers that the third counter-claim submitted by
Uganda is therefore not directly connected with the subject-matter of the
Congo’s claims;
**
44. Whereas, at the conclusion of its Written Observations, the Congo
submitted in the further alternative that: "it would not be appropriate, on
the basis of considerations of expediency deriving from the requirements of
the sound administration of justice, to join the Ugandan claims to the
proceedings on the merits pursuant to Article 80, paragraph 3, of the Rules
of Court"; and whereas the Court, having found that the first and second
counter-claims submitted by Uganda are directly connected with the
subject-matter of the Congo’s claims, takes the view that, on the contrary,
the sound administration of justice and the interests of procedural economy
call for the simultaneous consideration of those counter-claims and the
principal claims;
**[p 681]
45. Whereas, in light of the foregoing, the Court considers that the first
and second counter-claims submitted by Uganda are admissible as such and
form part of the present proceedings; and whereas the Court considers,
conversely, that such is not the case with respect to Uganda’s third
counter-claim;
**
46. Whereas a decision given on the admissibility of a counter-claim taking
account of the requirements of Article 80 of the Rules of Court in no way
prejudges any question with which the Court would have to deal during the
remainder of the proceedings;
47. Whereas, in order to protect the rights which third States entitled to
appear before the Court derive from the Statute, the Court instructs the
Registrar to transmit a copy of this Order to them;
48. Whereas when, in accordance with the provisions of its Rules, the Court
decides, in the interests of the proper administration of justice, to rule
on the respective claims of the Parties in a single set of proceedings, it
must not, for all that, lose sight of the interest of the Applicant to have
its claims decided within a reasonable time-period;
49. Whereas, during the meeting which the President of the Court held on 11
June 2001 with the Agents of the Parties (see paragraph 5 above), each of
the Parties indicated that it wished to be able to file a further written
pleading on the merits; whereas the two Agents were invited to express their
views as to suitable time-limits to be fixed for the filing of these further
pleadings in the event that the Court decided that their submission was
necessary; whereas each Party responded that, in that event, it would wish
to have a time-limit of six months to prepare its pleading; whereas such a
time-limit appears reasonable in this case;
50. Whereas, taking into account the conclusions it has reached above
regarding the admissibility of the Ugandan counter-claims, the Court
considers it necessary for the Congo to file a Reply and Uganda a Rejoinder,
addressing the claims of both Parties in the current proceedings; and
whereas, as the Court has already decided in other cases (see Application of
the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Counter-Claims, Order of 17 December
1997, I.C.J. Reports 1997, p. 260, para. 42; Oil Platforms (Islamic Republic
of Iran v. United States of America), Counter-Claim, Order of 10 March 1998,
I.C.J. Reports 1998, p. 206, para. 45; Land and Maritime Boundary between
Cameroon and Nigeria (Cameroon v. Nigeria), Order of 30 June 1999, I.C.J.
Reports 1999, p. 986), it is also necessary, in order to ensure strict
equality between the Parties, to reserve the right of the Congo to present
its views in writing a second time on the Ugandan counter-[p 682] claims, in
an additional pleading which may be the subject of a subsequent Order;
***
51. For these reasons,
The Court,
(A) (1) Unanimously,
Finds that the first counter-claim submitted by the Republic of Uganda in
its Counter-Memorial is admissible as such and forms part of the current
proceedings;
(2) By fifteen votes to one,
Finds that the second counter-claim submitted by the Republic of Uganda in
its Counter-Memorial is admissible as such and forms part of the current
proceedings;
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Ranjeva,
Herczegh, Fleischhauer, Koroma, Vereshchetin, Higgins, Parra-Aranguren,
Kooijmans, Rezek, Al-Khasawneh, Buergenthal, Elaraby; Judge ad hoc Kateka;
AGAINST: Judge ad hoc Verhoeven;
(3) Unanimously,
Finds that the third counter-claim submitted by the Republic of Uganda in
its Counter-Memorial is inadmissible as such and does not form part of the
current proceedings;
(B) Unanimously,
Directs the Democratic Republic of the Congo to submit a Reply and the
Republic of Uganda to submit a Rejoinder relating to the claims of both
Parties in the current proceedings and fixes the following dates as
time-limits for the filing of those pleadings:
For the Reply of the Democratic Republic of the Congo, 29 May 2002;
For the Rejoinder of the Republic of Uganda, 29 November 2002;
Reserves the subsequent procedure for further decision.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this twenty-ninth day of November, two thousand and
one, in three copies, one of which will be placed in the [p 683] archives of
the Court and the others transmitted to the Government of the Democratic
Republic of the Congo and the Government of the Republic of Uganda,
respectively.
(Signed) Gilbert Guillaume,
President.
(Signed) Philippe Couvreur,
Registrar.
Judge ad hoc Verhoeven appends a declaration to the Order of the Court.
(Initialled) G. G.
(Initialled) Ph. C.
[p 684]
Declaration of Judge ad hoc Verhoeven
[Translation]
The connection which counter-claims are required to have with the principal
claim in order for them to be admissible must, it seems to me, be considered
in the light of their purpose. That purpose is not always entirely clear.
Judged by reference to national practices, the importance of counter-claims
would appear to be twofold: on the one hand, they enable the court to gain a
more thorough and precise understanding of the dispute of which it is seised
and, on the other hand, they avoid the risk of incompatible - or even
downright contradictory - rulings. These are the sole circumstances in which
recourse to a counter-claim can effectively enable additional proceedings to
be dispensed with.
That is a reasonable explanation. Should it be otherwise in the case of
international courts? I see no reason why. That being the case, the criteria
of connection emphasized to date by the Court for the purpose of declaring
counter-claims admissible (facts of the same nature, same overall factual
situation, same legal objectives) must be understood in light of the
above-mentioned aims. However, it would seem to me to be wrong to apply
those criteria in a purely "mechanical" manner, whilst losing sight of the
reasons which essentially explain why the Court should entertain the
respondent’s claim without obliging him to institute new proceedings. Too
rigid an application could result in an excessive reduction in the number of
claims that might effectively be submitted by way of counter-claim; it could
also be to disregard the fact, underlined by the Court, that the principal
claim and the counter-claim are independent of one other, which necessarily
implies that they need have neither the same subject-matter nor the same
legal basis; finally, it cannot be precluded that other criteria may be
judged relevant, under other circumstances, for the purpose of ruling on the
admissibility of a counter-claim. The important point is always that the
Court should be in the "best" position to pass judgment, and that the
credibility of its judgments should not be jeopardized by inconsistent
rulings.
That said, it is a specific feature of the International Court of Justice
that its jurisdiction is currently purely voluntary. That jurisdiction
exists only because and insofar as the parties have so desired it. It is
therefore possible that the Court, absent agreement, may not be able to
assume jurisdiction tomorrow in respect of a claim of which it is seised
today by way of counter-claim. Are we accordingly to conclude that the Court
should adopt a particularly "liberal" approach when ruling on the
admissibility of a counter-claim and, in particular, on the requirement that
the counter-claim be directly connected to the subject-matter of the [p 685]
principal claim? I seriously doubt it. It is true that the peaceful
settlement of disputes could be enhanced by such an approach. However, the
risk is that it would encourage States to avoid a Court which keeps too many
"surprises" up its sleeve, rather than submit to its jurisdiction. Further,
the internal logic of a system of voluntary jurisdiction undoubtedly
requires - irrespective of any considerations of jurisdictional policy -
particular rigour in evaluating the connection which the counter-claim must
have with the principal claim if it is not to be ruled inadmissible.
It is because the attack against Uganda’s diplomatic mission in Kinshasa, as
cited by the Respondent, does not appear to me to throw any useful light for
the Court on the armed aggression and unlawful occupation of part of its
territory which the Democratic Republic of the Congo claims to have suffered
- allegations central to the principal claim - that I voted against the
admissibility of the Respondent’s second counter-claim. In light of the
foregoing observations, it seems to me that the mere fact that this attack
is part of a multifaceted history of conflict is not sufficient to justify
the Respondent being authorized to seise the Court of this claim by way of
counter-claim.
(Signed) Joe Verhoeven. |
|
