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THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 23 June 1999, the Democratic Republic of the Congo (hereinafter �the
DRC�) filed in the Registry of the Court an Application instituting
proceedings against 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� (emphasis in the original).
In order to found the jurisdiction of the Court, the Application relied on
the declarations made by the two Parties accepting the Court�s compulsory
jurisdiction under Article 36, paragraph 2, of the Statute of the Court.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Application was
immediately communicated to the Government of Uganda by the Registrar; and,
pursuant to paragraph 3 of that Article, all States entitled to appear
before the Court were notified of the Application.
3. By an Order of 21 October 1999, the Court fixed 21 July 2000 as the time-limit
for the filing of the Memorial of the DRC and 21 April 2001 as the time-limit
for the filing of the Counter-Memorial of Uganda. The DRC filed its Memorial
within the time-limit thus prescribed.
4. On 19 June 2000, the DRC submitted to the Court a request for the
indication of provisional measures pursuant to Article 41 of the Statute of
the Court. By an Order dated 1 July 2000, the Court, after hearing the
Parties, indicated certain provisional measures.
5. Uganda filed its Counter-Memorial within the time-limit fixed for that
purpose by the Court�s Order of 21 October 1999. That pleading included
counter-claims.
6. Since the Court included upon the Bench no judge of the nationality of
the Parties, each Party availed itself of its right under Article 31 of the
Statute of the Court to choose a judge ad hoc to sit in the case. By a
letter of 16 August 2000 the DRC notified the Court of its intention to
choose Mr. Joe Verhoeven and by a letter of 4 October 2000 Uganda notified
the Court of its intention to choose Mr. James L. Kateka. No objections
having been raised, the Parties were informed by letters dated 26 September
2000 and 7 November 2000, respectively, that the case file would be
transmitted to the judges ad hoc accordingly.
7. At a meeting held by the President of the Court with the Agents of the
Parties on 11 June 2001, the DRC, invoking Article 80 of the Rules of Court,
raised certain objections to the admissibility of the counter-claims set out
in the Counter-Memorial of Uganda. 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; they also agreed
on the time-limits for that purpose.
On 28 June 2001, the Agent of the DRC filed his Government�s written
observations on the question of the admissibility of Uganda�s
counter-claims, and a copy of those observations was communicated to the
Ugandan Government by the Registrar. On 15 August 2001, the Agent of Uganda
filed his Government�s written observations on the question of the
admissibility of the counter-claims set out in Uganda�s Counter-Memorial,
and a copy of those observations was communicated to the Congolese
Government by the First Secretary of the Court, Acting Registrar.
On 5 September 2001, the Agent of the DRC submitted his Government�s
comments on Uganda�s written observations, a copy of which was transmitted
to the Ugandan Government by the Registrar.
Having received detailed written observations from each of the Parties, the
Court considered that it was sufficiently well informed of their respective
positions with regard to the admissibility of the counter-claims.
8. By an Order of 29 November 2001, the Court held that two of the three
counter-claims submitted by Uganda in its Counter-Memorial were admissible
as such and formed part of thecurrent proceedings, but that the third was
not. It also directed the DRC to file a Reply and Uganda to file a Rejoinder,
addressing the claims of both Parties, and fixed 29 May 2002 and 29 November
2002 as the time-limits for the filing of the Reply and the Rejoinder
respectively. Lastly, the Court held that it was 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-claims, in an additional pleading which [might] be the subject of a
subsequent Order�. The DRC duly filed its Reply within the time-limit
prescribed for that purpose.
9. By an Order of 7 November 2002, at the request of Uganda, the Court
extended the time-limit for the filing of the Rejoinder of Uganda to 6
December 2002. Uganda duly filed its Rejoinder within the time-limit as thus
extended.
10. By a letter dated 6 January 2003, the Co-Agent of the DRC, referring to
the above-mentioned Order of 29 November 2001, informed the Court that his
Government wished to present its views in writing a second time on the
counter-claims of Uganda, in an additional pleading. By an Order of 29
January 2003 the Court, taking account of the agreement of the Parties,
authorized the submission by the DRC of an additional pleading relating
solely to the counter-claims submitted by Uganda and fixed 28 February 2003
as the time-limit for the filing of that pleading. The DRC duly filed the
additional pleading within the time-limit as thus fixed and the case became
ready for hearing.
11. At a meeting held by the President of the Court with the Agents of the
Parties on 24 April 2003, the Agents presented their views on the
organization of the oral proceedings on the merits. Pursuant to Article 54,
paragraph 1, of the Rules, the Court fixed 10 November 2003 as the date for
the opening of the oral proceedings. The Registrar informed the Parties
accordingly by letters of 9 May 2003.
12. Pursuant to the instructions of the Court under Article 43 of the Rules
of Court, the Registry sent the notification referred to in Article 63,
paragraph 1, of the Statute to all States parties to the Chicago Convention
on International Civil Aviation of 7 December 1944, the Fourth Geneva
Convention relative to the Protection of Civilian Persons in Time of War of
12 August 1949, the Additional Protocol I of 8 June 1977 to the Geneva
Conventions of 12 August 1949, the Vienna Convention on Diplomatic Relations
of 18 April 1961, the International Covenant on Civil and Political Rights
of 19 December 1966, the African Charter on Human and Peoples� Rights of 27
June 1981 and the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of 10 December 1984.
Pursuant to the instructions of the Court under Article 69, paragraph 3, of
the Rules of Court, the Registry addressed the notifications provided for in
Article 34, paragraph 3, of the Statute and communicated copies of the
written proceedings to the Secretary-General of the United Nations in
respect of the International Covenant on Civil and Political Rights and the
Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the
Secretary-General
of the International Civil Aviation Organisation in respect of the Chicago
Convention on International Civil Aviation; and the President of the African
Union�s Commission in respect of the African Charter on Human and Peoples�
Rights. The respective organizations were also asked whether they intended
to present written observations within the meaning of Article 69, paragraph
3, of the Rules of Court. None of those organizations expressed a wish to
submit any such observations.
13. By a letter dated 2 October 2003 addressed to the Registry, the Agent of
the DRC requested that Uganda provide the DRC with a number of case-related
documents which were not in the public domain. Copies of the requested
documents were received in the Registry on 17 October 2003 and transmitted
to the Agent of the DRC. By a letter dated 13 October 2003 addressed to the
Registry, the Agent of Uganda asked the DRC to furnish certain documents
relevant to the issues in the case that were not in the public domain.
Copies of the requested documents were received in the Registry on 31
October 2003 and transmitted to the Agent of Uganda. On 5 November 2003, the
Registrar informed the Parties by letter that the Court had decided that
those documents did not form part of the case file and that accordingly,
pursuant to paragraph 4 of Article 56, they should not be referred to in
oral argument, except to the extent that they �form[ed] part of a
publication readily available�.
14. On 17 October 2003, the Agent of Uganda informed the Court that his
Government wished to submit 24 new documents, in accordance with Article 56
of the Rules of Court. As provided for in paragraph 1 of that Article, those
documents were communicated to the DRC. On 29 October 2003, the Agent of the
DRC informed the Court that his Government did not intend to raise any
objection to the production of those new documents by Uganda. By letters of
5 November 2003, the Registrar informed the Parties that the Court had taken
note that the DRC had no objection to the production of the 24 new documents
and that counsel would be free to make reference to them in the course of
oral argument.
15. On 17 October 2003, the Agent of Uganda further informed the Court that
his Government wished to call two witnesses in accordance with Article 57 of
the Rules of Court. A copy of the Agent�s letter and the attached list of
witnesses was transmitted to the Agent of the DRC, who conveyed to the Court
his Government�s opposition to the calling of those witnesses.
On 5 November 2003, the Registrar informed the Parties by letter that the
Court had decided that it would not be appropriate, in the circumstances, to
authorize the calling of those two witnesses by Uganda.
16. On 20 October 2003, the Agent of Uganda informed the Court that his
Government wished, in accordance with Article 56 of the Rules of Court, to
add two further documents to its request to produce 24 new documents in the
case. As provided for in paragraph 1 of that Article, those documents were
communicated to the DRC. On 6 November 2003, the Agent of the DRC informed
the Court that his Government had no specific comments to make with regard
to the additional two documents.
On 5 November 2003, the Agent of the DRC made a formal application to submit
a �small number� of new documents in accordance with Article 56 of the Rules
of Court, and referred to the Court�s Practice Direction IX. As provided for
in paragraph 1 of Article 56, those documents were communicated to Uganda.
On 5 November 2003, the Agent of Uganda indicated that his Government did
not object to the submission of the new documents by the DRC.
By letters dated 12 November 2003, the Registrar informed the Parties that
the Court had taken note, firstly, that the DRC did not object to the
production of the two further new documents which Uganda sought to produce
in accordance with Article 56 of the Rules of Court, and secondly, that
Uganda had no objection to the production of the documents submitted by the
DRC on 5 November 2003, and that counsel would be free to quote from both
sets of documents during the oral proceedings.
17. On 5 November 2003, the Agent of the DRC enquired whether it might be
possible to postpone to a later date, in April 2004, the opening of the
hearings in the case originally scheduled for 10 November 2003, �so as to
permit the diplomatic negotiations engaged by the Parties to be conducted in
an atmosphere of calm�. By a letter of 6 November 2003, the Agent of Uganda
informed the Court that his Government �supporte[d ]the proposal and
adopt[ed] the request�.
On 6 November 2003, the Registrar informed both Parties by letter that the
Court, �taking account of the representations made to it by the Parties,
[had] decided to postpone the opening of
the oral proceedings in the case� and that the new date for the opening of
the oral proceedings would be fixed in due course. By a letter of 9
September 2004, the Agent of the DRC formally requested that the Court fix a
new date for the opening of the oral proceedings. By letters of 20 October
2004, the Registrar informed the Parties that the Court had decided, in
accordance with Article 54 of the Rules of Court, to fix Monday 11 April
2005 for the opening of the oral proceedings in the case.
18. On 1 February 2005, the Agent of the DRC informed the Court that his
Government wished to produce certain new documents, in accordance with
Article 56 of the Rules of Court. As provided for in paragraph 1 of that
Article, those documents were communicated to Uganda. On 16 February 2005,
the Co-Agent of Uganda informed the Court that his Government did not intend
to raise any objection to the production of one of the new documents by the
DRC, and presented certain observations on the remaining documents. On 21
February 2005, the Registrar informed the Parties by letter that the Court
had decided to authorize the production of the document to which the Ugandan
Government had raised no objection, as well as the production of the other
documents. With regard to those other documents, which came from the
Judicial Commission of Inquiry into Allegations of Illegal Exploitation of
Natural Resources and Other Forms of Wealth in the Democratic Republic of
the Congo set up by the Ugandan Government in May 2001 and headed by Justice
David Porter (hereinafter �the Porter Commission�), the Parties were further
informed that the Court had noted, inter alia, that only certain of them
were new, whilst the remainder simply reproduced documents already submitted
on 5 November 2003 and included in the case file.
19. On 15 March 2005, the Co-Agent of Uganda provided the Registry with a
new document which his Government wished to produce under Article 56 of the
Rules of Court. No objection having been made by the Congolese Government to
the Ugandan request, the Registrar, on 8 April 2005, informed the Parties
that the Court had decided to authorize the production of the said document.
20. Pursuant to Article 53, paragraph 2, of the Rules, the Court, after
ascertaining the views of the Parties, decided that copies of the pleadings
and documents annexed would be made available to the public at the opening
of the oral proceedings.
21. Public sittings were held from 11 April to 29 April 2005, at which the
Court heard the oral arguments and replies of:
For the DRC: H.E. Mr. Jacques Masangu-a-Mwanza,
H.E. Mr. Honorius Kisimba Ngoy Ndalewe,
Maître Tshibangu Kalala,
Mr. Jean Salmon,
Mr. Philippe Sands,
Mr. Olivier Corten,
Mr. Pierre Klein.
For Uganda: The Honourable E. Khiddu Makubuya,
Mr. Paul S. Reichler,
Mr. Ian Brownlie,
The Honourable Amama Mbabazi,
Mr. Eric Suy.
22. In the course of the hearings, questions were put to the Parties by
Judges Vereshchetin, Kooijmans and Elaraby.
Judge Vereshchetin addressed a separate question to each Party. The DRC was
asked: �What are the respective periods of time to which the concrete
submissions, found in the written pleadings of the Democratic Republic of
the Congo, refer?�; and Uganda was asked: �What are the respective periods
of time to which the concrete submissions relating to the first
counter-claim, found in the written pleadings of Uganda, refer?�
Judge Kooijmans addressed the following question to both Parties:
�Can the Parties indicate which areas of the provinces of Equateur,
Orientale, North Kivu and South Kivu were in the relevant periods in time
under the control of the UPDF and which under the control of the various
rebellious militias? It would be appreciated if sketch-maps would be added.�
Judge Elaraby addressed the following question to both Parties:
�The Lusaka Agreement signed on 10 July 1999 which takes effect 24 hours
after the signature, provides that:
�The final orderly withdrawal of all foreign forces from the national
territory of the Democratic Republic of Congo shall be in accordance with
Annex �B� of this Agreement.� (Annex A, Chapter 4, para. 4.1.)
Sub-paragraph 17 of Annex B provides that the �Orderly Withdrawal of all
Foreign Forces� shall take place on �D-Day + 180 days�.
Uganda asserts that the final withdrawal of its forces occurred on 2 June
2003.
What are the views of the two Parties regarding the legal basis for the
presence of Ugandan forces in the Democratic Republic of the Congo in the
period between the date of the �final orderly withdrawal�, agreed to in the
Lusaka Agreement, and 2 June 2003?�
The Parties provided replies to these questions orally and in writing,
pursuant to Article 61, paragraph 4, of the Rules of Court. Pursuant to
Article 72 of the Rules of Court, each Party presented written observations
on the written replies received from the other.
*
23. In its Application, the DRC made the following requests:
�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 attributable 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.�
24. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of the DRC,
in the Memorial:
�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 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�;
in the Reply:
�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 peace, international security and 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 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 abuses against nationals of
the Democratic Republic of the Congo, by killing, injuring, and abducting
those nationals or robbing them of their property, 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 principle of conventional and customary law whereby it is necessary,
at all times, to make a distinction in an armed conflict between civilian
and military objectives;
- 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, in accordance with customary international law:
- cease forthwith all continuing internationally wrongful acts, and in
particular its occupation of Congolese territory, its support for irregular
forces operating in the Democratic Republic of the Congo 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 in regard to 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 set out in paragraph 6.65 of the
Memorial of the Democratic Republic of the Congo and restated in paragraph
1.58 of the present Reply;
- further, in any event, render satisfaction for the injuries inflicted upon
the Democratic Republic of the Congo, in the form of official apologies, the
payment of damages reflecting the gravity of the violations and the
prosecution of all those responsible;
- provide specific guarantees and assurances that it will never again in the
future perpetrate any of the above-mentioned violations against the
Democratic Republic of the Congo.
(5) That the Ugandan counter-claim alleging involvement by the DRC in armed
attacks against Uganda be dismissed, on the following grounds:
- to the extent that it relates to the period before Laurent-Désiré Kabila
came to power, the claim is inadmissible because Uganda had previously
waived its right to lodge such a claim and, in the alternative, the claim is
unfounded because Uganda has failed to establish the facts on which it is
based;
- to the extent that it relates to the period after Laurent-Désiré Kabila
came to power, the claim is unfounded because Uganda has failed to establish
the facts on which it is based.
(6) That the Ugandan counter-claim alleging involvement by the DRC in an
attack on the Ugandan Embassy and on Ugandan nationals in Kinshasa be
dismissed, on the following grounds:
- to the extent that Uganda is seeking to engage the responsibility of the
DRC for acts contrary to international law allegedly committed to the
detriment of Ugandan nationals, the claim is inadmissible because Uganda has
failed to show that the persons for whose protection it claims to provide
are its nationals or that such persons have exhausted the local remedies
available in the DRC; in the alternative, this claim is unfounded because
Uganda has failed to establish the facts on which it is based�;
- that part of the Ugandan claims concerning the treatment allegedly
inflicted on its diplomatic premises and personnel in Kinshasa is unfounded
because Uganda has failed to establish the facts on which it is based�;
in the additional pleading entitled �Additional Written Observations on the
Counter-Claims
presented by Uganda�:
�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, pursuant to the Rules of Court, to
adjudge and declare:
As regards the first counter-claim presented by Uganda:
(1) to the extent that it relates to the period before Laurent-Désiré Kabila
came to power, the claim is inadmissible because Uganda had previously
waived its right to lodge such a claim and, in the alternative, the claim is
unfounded because Uganda has failed to establish the facts on which it is
based;
(2) to the extent that it relates to the period from when Laurent-Désiré
Kabila came to power until the onset of Ugandan aggression, the claim is
unfounded in fact because Uganda has failed to establish the facts on which
it is based;
(3) to the extent that it relates to the period after the onset of Ugandan
aggression, the claim is founded neither in fact nor in law because Uganda
has failed to establish the facts on which it is based, and because, from 2
August 1998, the DRC was in any event in a situation of self-defence.
As regards the second counter-claim presented by Uganda:
(1) to the extent that it is now centred on the interpretation and
application of the Vienna Convention of 1961 on Diplomatic Relations, the
claim presented by Uganda radically modifies the subject-matter of the
dispute, contrary to the Statute and Rules of Court; this aspect of the
claim must therefore be dismissed from the present proceedings;
(2) the aspect of the claim relating to the inhumane treatment allegedly
suffered by certain Ugandan nationals remains inadmissible, as Uganda has
still not shown that the conditions laid down by international law for the
exercise of its diplomatic protection have been met; in the alternative,
this aspect of the claim is unfounded, as Uganda is still unable to
establish the factual and legal bases for its claims;
(3) the aspect of the claim relating to the alleged expropriation of Ugandan
public property is unfounded, as Uganda is still unable to establish the
factual and legal bases for its claims.�
On behalf of the Government of Uganda, in the Counter-Memorial:
�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:
(A) That the requests of the Democratic Republic of the Congo relating to
activities or situations involving the Republic of Rwanda or its agents are
inadmissible for the reasons set forth in Chapter XV of the present
Counter-Memorial;
(B) That the requests of the Democratic Republic of the Congo that the Court
adjudge that the Republic of Uganda is responsible for various breaches of
international law, as alleged in the Application and/or the Memorial of the
Democratic Republic of Congo, are rejected; and
(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�;
in the Rejoinder:
�Reserving her right to supplement or amend her requests, the Republic of
Uganda requests the Court:
1. To adjudge and declare in accordance with international law:
(A) That the requests of the Democratic Republic of the Congo relating to
activities or situations involving the Republic of Rwanda or her agents are
inadmissible for the reasons set forth in Chapter XV of the present
Counter-Memorial;
(B) That the requests of the Democratic Republic of the Congo that the Court
adjudge that the Republic of Uganda is responsible for various breaches of
international law, as alleged in the Memorial and/or the Reply of the
Democratic Republic of Congo, are rejected; and
(C) That the Counter-claims presented in Chapter XVIII of the
Counter-Memorial and reaffirmed in Chapter VI of the present Rejoinder be
upheld.
2. To reserve the issue of reparation in relation to the Counter-claims for
a subsequent stage of the proceedings.�
25. At the oral proceedings, the following final submissions were presented
by the Parties:
On behalf of the Government of the DRC,
at the hearing of 25 April 2005, on the claims of the DRC:
�The Congo 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 having operated 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-intervention in matters within the domestic
jurisdiction of States, including 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 committing acts of violence against
nationals of the Democratic Republic of the Congo, by killing and injuring
them or despoiling them of their property, by failing to take adequate
measures to prevent violations of human rights in the DRC by persons under
its jurisdiction or control, and/or failing to punish persons under its
jurisdiction or control having engaged in the above-mentioned acts, has
violated the following principles of conventional and customary law:
- the principle of conventional and customary law imposing an obligation to
respect, and ensure respect for, fundamental human rights, including in
times of armed conflict, in accordance with international humanitarian law;
- the principle of conventional and customary law imposing an obligation, at
all times, to make a distinction in an armed conflict between civilian and
military objectives;
- the right of Congolese nationals to enjoy the most basic rights, both
civil and political, as well as economic, social and cultural.
3. That the Republic of Uganda, by engaging in the illegal exploitation of
Congolese natural resources, by pillaging its assets and wealth, by failing
to take adequate measures to prevent the illegal exploitation of the
resources of the DRC by persons under its jurisdiction or control, and/or
failing to punish persons under its jurisdiction or control having engaged
in the above-mentioned acts, has violated the following principles of
conventional and customary law:
- the applicable rules of international humanitarian 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 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.
4. (a) That the violations of international law set out in submissions 1, 2
and 3 constitute wrongful acts attributable to Uganda which engage its
international responsibility;
(b) that the Republic of Uganda shall cease forthwith all continuing
internationally wrongful acts, and in particular its support for irregular
forces operating in the DRC and its exploitation of Congolese wealth and
natural resources;
(c) that the Republic of Uganda shall provide specific guarantees and
assurances that it will not repeat the wrongful acts complained of;
(d) that the Republic of Uganda is under an obligation to the Democratic
Republic of the Congo to make reparation for all injury caused to the latter
by the violation of the obligations imposed by international law and set out
in submissions 1, 2 and 3 above;
(e) that the nature, form and amount of the reparation shall be determined
by the Court, failing agreement thereon between the Parties, and that the
Court shall reserve the subsequent procedure for that purpose.
5. That the Republic of Uganda has violated the Order of the Court on
provisional measures of 1 July 2000, in that it has failed to comply with
the following provisional measures:
�(1) both Parties must, forthwith, prevent and refrain from any action, and
in particular any armed action, which might prejudice the rights of the
other Party in respect of whatever judgment the Court may render in the
case, or which might aggravate or extend the dispute before the Court or
make it more difficult to resolve;
(2) both Parties must, forthwith, take all measures necessary to comply with
all of their obligations under international law, in particular those under
the United Nations Charter and the Charter of the Organization of African
Unity, and with United Nations Security Council resolution 1304 (2000) of 16
June 2000;
(3) both Parties must, forthwith, take all measures necessary to ensure full
respect within the zone of conflict for fundamental human rights and for the
applicable provisions of humanitarian law��;
at the hearing of 29 April 2005, on the counter-claims of Uganda:
�The Congo requests the International Court of Justice to adjudge and
declare:
As regards the first counter-claim submitted by Uganda:
(1) to the extent that it relates to the period before Laurent-Désiré Kabila
came to power, Uganda�s claim is inadmissible because Uganda had previously
renounced its right to lodge such a claim: in the alternative, the claim is
unfounded because Uganda has failed to establish the facts on which it is
based;
(2) to the extent that it relates to the period from the time when
Laurent-Désiré Kabila came to power to the time when Uganda launched its
armed attack, Uganda�s claim is unfounded in fact because Uganda has failed
to establish the facts on which it is based;
(3) to the extent that it relates to the period subsequent to the launching
of Uganda�s armed attack, Uganda�s claim is unfounded both in fact and in
law because Uganda has failed to establish the facts on which it is based
and, in any event, from 2 August 1998 the DRC was in a situation of
self-defence.
As regards the second counter-claim submitted by Uganda:
(1) to the extent that it now relates to the interpretation and application
of the Vienna Convention of 1961 on Diplomatic Relations, the claim
submitted by Uganda radically changes the subject-matter of the dispute,
contrary to the Statute and to the Rules of Court; that part of the claim
must therefore be dismissed from the present proceedings;
(2) that part of the claim relating to the alleged mistreatment of certain
Ugandan nationals remains inadmissible because Uganda has still failed to
show that the requirements laid down by international law for the exercise
of its diplomatic protection were satisfied; in the alternative, that part
of the claim is unfounded because Uganda is still unable to establish the
factual and legal bases of its claims.
(3) that part of the claim relating to the alleged expropriation of Uganda�s
public property is unfounded because Uganda is still unable to establish the
factual and legal bases of its claims.�
On behalf of the Government of Uganda,
at the hearing of 27 April 2005, on the claims of the DRC and the
counter-claims of Uganda:
�The Republic of Uganda requests the Court:
(1) To adjudge and declare in accordance with international law:
(A) that the requests of the Democratic Republic of the Congo relating to
the activities or situations involving the Republic of Rwanda or her agents
are inadmissible for the reasons set forth in Chapter XV of the
Counter-Memorial and reaffirmed in the oral pleadings;
(B) that the requests of the Democratic Republic of the Congo that the Court
adjudge and declare that the Republic of Uganda is responsible for various
breaches of international law, as alleged in the Memorial, the Reply and/or
the oral pleadings are rejected; and
(C) that Uganda�s counter-claims presented in Chapter XVIII of the
Counter-Memorial, and reaffirmed in Chapter VI of the Rejoinder as well as
the oral pleadings be upheld.
(2) To reserve the issue of reparation in relation to Uganda�s
counter-claims for a subsequent stage of the proceedings.�
***
26. The Court is aware of the complex and tragic situation which has long
prevailed in the Great Lakes region. There has been much suffering by the
local population and destabilization of much of the region. In particular,
the instability in the DRC has had negative security implications for Uganda
and some other neighbouring States. Indeed, the Summit meeting of the Heads
of State in Victoria Falls (held on 7 and 8 August 1998) and the Agreement
for a Ceasefire in the Democratic Republic of the Congo signed in Lusaka on
10 July 1999 (hereinafter �the Lusaka Agreement�) acknowledged as legitimate
the security needs of the DRC�s neighbours. The Court
is aware, too, that the factional conflicts within the DRC require a
comprehensive settlement to the problems of the region.
However, the task of the Court must be to respond, on the basis of
international law, to the particular legal dispute brought before it. As it
interprets and applies the law, it will be mindful of context, but its task
cannot go beyond that.
***
27. The Court finds it convenient, in view of the many actors referred to by
the Parties in their written pleadings and at the hearing, to indicate the
abbreviations which it will use for those actors in its judgment. Thus the
Allied Democratic Forces will hereinafter be referred to as the ADF, the
Alliance of Democratic Forces for the Liberation of the Congo (Alliance des
forces démocratiques pour la libération du Congo) as the AFDL, the Congo
Liberation Army (Armée de libération du Congo) as the ALC, the Congolese
Armed Forces (Forces armées congolaises) as theFAC, the Rwandan Armed Forces
(Forces armées rwandaises) as the FAR, the Former Uganda National Army as
the FUNA, the Lord�s Resistance Army as the LRA, the Congo Liberation
Movement (Mouvement de libération du Congo) as the MLC, the National Army
for the Liberation of Uganda as the NALU, the Congolese Rally for Democracy
(Rassemblement congolais pour la démocratie) as the RCD, the Congolese Rally
for Democracy-Kisangani (Rassemblement congolais pour la
démocratie-Kisangani) as the RCD-Kisangani (also known as RCD-Wamba), the
Congolese Rally for Democracy-Liberation Movement (Rassemblement congolais
pour la démocratie-Mouvement de libération) as the RCD-ML, the Rwandan
Patriotic Army as the RPA, the Sudan People�s Liberation Movement/Army as
the SPLM/A, the Uganda National Rescue Front II as the UNRF II, the Uganda
Peoples� Defence Forces as the UPDF, and the West Nile Bank Front as the
WNBF.
***
28. In its first submission the DRC 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 having operated 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-intervention in matters within the domestic
jurisdiction of States, including refraining from extending any assistance
to the parties to a civil war operating on the territory of another State.�
29. The DRC explains that in 1997 Laurent-Désiré Kabila, who was at the time
a Congolese rebel leader at the head of the AFDL (which was supported by
Uganda and Rwanda), succeeded in overthrowing the then President of Zaire,
Marshal Mobutu Ssese Seko, and on 29 May 1997 was formally sworn in as
President of the renamed Democratic Republic of the Congo. The DRC
asserts that, following President Kabila�s accession to power, Uganda and
Rwanda were granted
substantial benefits in the DRC in the military and economic fields. The DRC
claims, however,
that President Kabila subsequently sought a gradual reduction in the
influence of these two States
over the DRC�s political, military and economic spheres. It was, according
to the DRC, this �new policy of independence and emancipation� from the two
States that constituted the real reason for the invasion of Congolese
territory by Ugandan armed forces in August 1998.
30. The DRC maintains that at the end of July 1998 President Kabila learned
of a planned coup d�état organized by the Chief of Staff of the FAC, Colonel
Kabarebe (a Rwandan national), and that, in an official statement published
on 28 July 1998 (see paragraph 49 below), President Kabila called for the
withdrawal of foreign troops from Congolese territory. Although his address
referred mainly to Rwandan troops, the DRC argues that there can be no doubt
that President Kabila intended to address his message to �all foreign
forces�. The DRC states that on
2 August 1998 the 10th Brigade assigned to the province of North Kivu
rebelled against the central Government of the DRC, and that during the
night of 2 to 3 August 1998 Congolese Tutsi soldiers and a few Rwandan
soldiers not yet repatriated attempted to overthrow President Kabila.
According to the DRC, Uganda began its military intervention in the DRC
immediately after the
failure of the coup attempt.
31. The DRC argues that on 4 August 1998 Uganda and Rwanda organized an
airborne operation, flying their troops from Goma on the eastern frontier of
the DRC to Kitona, some 1,800 km away on the other side of the DRC, on the
Atlantic coast. The DRC alleges that the aim
was to overthrow President Kabila within ten days. According to the DRC, in
the advance towards Kinshasa, Ugandan and Rwandan troops captured certain
towns and occupied the Inga Dam, which supplies electricity to Kinshasa. The
DRC explains that Angola and Zimbabwe came to the assistance of the
Congolese Government to help prevent the capture of Kinshasa. The DRC also
states that in the north-eastern part of the country, within a matter of
months, UPDF troops had advanced and had progressively occupied a
substantial part of Congolese territory in several provinces.
32. The DRC submits that Uganda�s military operation against the DRC also
consisted in the provision of support to Congolese armed groups opposed to
President Kabila�s Government. The
DRC thus maintains that the RCD was created by Uganda and Rwanda on 12
August 1998, and that at the end of September 1998 Uganda supported the
creation of the new MLC rebel group, which was not linked to the Rwandan
military. According to the DRC, Uganda was closely involved in the
recruitment, education, training, equipment and supplying of the MLC and its
military wing, the ALC. The DRC alleges that the close links between Uganda
and the MLC were reflected in the formation of a united military front in
combat operations against the FAC. The DRC maintains that in a number of
cases the UPDF provided tactical support, including artillery cover, for ALC
troops. Thus, the DRC contends that the UPDF and the ALC constantly acted in
close co-operation during many battles against the Congolese regular army.
The DRC concludes that Uganda, �in addition to providing decisive military
support for several Congolese rebel movements, has been extremely active in
supplying these movements with a political and diplomatic framework�.
33. The DRC notes that the events in its territory were viewed with grave
concern by the international community. The DRC claims that at the Victoria
Falls Summit, which took place on
7 and 8 August 1998, and was attended by representatives of the DRC, Uganda,
Namibia, Rwanda, Tanzania, Zambia and Zimbabwe, �member countries of the
SADC [Southern African Development Community], following the submission of
an application by the Democratic Republic of the Congo, unequivocally
condemned the aggression suffered by the Congo and the occupation of certain
parts of its national territory�. The DRC further points out that, in an
attempt to help resolve the conflict, the SADC, the States of East Africa
and the Organization of African Unity (OAU) initiated various diplomatic
efforts, which included a series of meetings between the belligerents and
the representatives of various African States, also known as the �Lusaka
Process�. On 18 April 1999 the Sirte Peace Agreement was concluded, in the
framework of the Lusaka peace process, between President Kabila of the DRC
and President Museveni of Uganda. The DRC explains that, under this
Agreement, Uganda undertook to �cease hostilities immediately� and to
withdraw its troops from the territory of the DRC. The Lusaka Agreement was
signed by the Heads of State of the DRC, Uganda and other African States
(namely, Angola, Namibia, Rwanda and Zimbabwe) on 10 July 1999 and by the
MLC and RCD (rebel groups) on 1 August 1999 and 31 August 1999,
respectively. The DRC explains that this Agreement provided for the
cessation of hostilities between the parties� forces, the disengagement of
these forces, the deployment of OAU verifiers and of the United Nations
Mission in the Democratic Republic of the Congo (hereinafter �MONUC�), to be
followed by the withdrawal of foreign forces. On 8 April 2000 and 6 December
2000 Uganda signed troop disengagement agreements known as the Kampala plan
and the Harare plan.
34. According to the DRC, following the withdrawal of Ugandan troops from
its territory in June 2003, Uganda has continued to provide arms to ethnic
groups confronting one another in the Ituri region, on the boundary with
Uganda. The DRC further argues that Uganda �has left behind it a fine
network of warlords, whom it is still supplying with arms and who themselves
continue to plunder the wealth of the DRC on behalf of Ugandan and foreign
businessmen�.
*
35. Uganda, for its part, claims that from early 1994 through to
approximately May 1997 the Congolese authorities provided military and
logistical support to anti-Ugandan insurgents. Uganda asserts that from the
beginning of this period it was the victim of cross-border attacks from
these armed rebels in eastern Congo. It claims that, in response to these
attacks, until late 1997 it confined its actions to its own side of the
Congo-Uganda border, by reinforcing its military positions along the
frontier.
36. According to Uganda, in 1997 the AFDL, made up of a loose alliance of
the combined forces of the various Congolese rebel groups, together with the
Rwandan army, overthrew President Mobutu�s régime in Zaire. Uganda asserts
that upon assuming power on 29 May 1997, President Kabila invited Uganda to
deploy its own troops in eastern Congo in view of the fact that the
Congolese army did not have the resources to control the remote eastern
provinces, and in order to �eliminate� the anti-Ugandan insurgents operating
in that zone and to secure the border region. According to Uganda, it was on
this understanding that Ugandan troops crossed into eastern Congo and
established bases on Congolese territory. Uganda further alleges that in
December 1997, at President Kabila�s further invitation, Uganda sent two
UPDF battalions into eastern Congo, followed by a third one in April 1998,
also at the invitation of the Congolese President. Uganda states that on 27
April 1998 the Protocol on Security along the Common Border was signed by
the two governments in order to reaffirm the invitation of the DRC to Uganda
to deploy its troops in eastern Congo as well as to commit the armed forces
of both countries to jointly combat the anti-Ugandan insurgents in Congolese
territory and secure the border region. Uganda maintains that three Ugandan
battalions were accordingly stationed in the border region of the Ruwenzori
Mountains within the DRC.
37. However, Uganda claims that between May and July 1998 President Kabila
broke off his alliances with Rwanda and Uganda and established new alliances
with Chad, the Sudan and various anti-Ugandan insurgent groups.
With regard to the official statement by President Kabila published on 28
July 1998 calling for the withdrawal of Rwandan troops from Congolese
territory, Uganda interprets this statement as not affecting Uganda, arguing
that it made no mention of the Ugandan armed forces that were then in the
DRC pursuant to President Kabila�s earlier invitation and to the Protocol of
27 April 1998.
38. Uganda affirms that it had no involvement in or foreknowledge of the FAC
rebellion that occurred in eastern Congo on 2 August 1998 nor of the
attempted coup d�état against President Kabila on the night of 2-3 August
1998. Uganda likewise denies that it participated in the attack on the
Kitona military base. According to Uganda, on 4 August 1998 there were no
Ugandan troops present in either Goma or Kitona, or on board the planes
referred to by the DRC.
39. Uganda further claims that it did not send additional troops into the
DRC during August 1998. Uganda states, however, that by August-September
1998, as the DRC and the Sudan prepared to attack Ugandan forces in eastern
Congo, its security situation had become untenable.
Uganda submits that �[i]n response to this grave threat, and in the lawful
exercise of its sovereign right of self-defence�, it made a decision on 11
September 1998 to augment its forces in eastern Congo and to gain control of
the strategic airfields and river ports in northern and eastern Congo in
order to stop the combined forces of the Congolese and Sudanese armies as
well as the anti-Ugandan insurgent groups from reaching Uganda�s borders.
According to Uganda, the military operations to take control of these key
positions began on 20 September 1998. Uganda states that by February 1999
Ugandan forces succeeded in occupying all the key airfields and river ports
that served as gateways to eastern Congo and the Ugandan border. Uganda
maintains that on 3 July 1999 its forces gained control of the airport at
Gbadolite and drove all Sudanese forces out of the DRC.
40. Uganda notes that on 10 July 1999 the on-going regional peace process
led to the signing of a peace agreement in Lusaka by the Heads of State of
Uganda, the DRC, Rwanda, Zimbabwe, Angola and Namibia, followed by the
Kampala (8 April 2000) and Harare (6 December 2000) Disengagement Plans.
Uganda points out that, although no immediate or unilateral withdrawal was
called for, it began withdrawing five battalions from the DRC on 22 June
2000. On 20 February 2001 Uganda announced that it would withdraw two more
battalions from the DRC. On 6 September 2002 Uganda and the DRC concluded a
peace agreement in Luanda (Agreement
between the Governments of the Democratic Republic of the Congo and the
Republic of Uganda
on Withdrawal of Ugandan Troops from the Democratic Republic of the Congo,
Co-operation and Normalisation of Relations between the two Countries,
hereinafter �the Luanda Agreement�). Under its terms Uganda agreed to
withdraw from the DRC all Ugandan troops, except for those expressly
authorized by the DRC to remain on the slopes of Mt. Ruwenzori. Uganda
claims that, in fulfilment of its obligations under the Luanda Agreement, it
completed the withdrawal of all of its troops from the DRC in June 2003.
Uganda asserts that �[s]ince that time, not a single Ugandan soldier has
been deployed inside the Congo�.
41. As for the support for irregular forces operating in the DRC, Uganda
states that it has never denied providing political and military assistance
to the MLC and the RCD. However, Uganda asserts that it did not participate
in the formation of the MLC and the RCD. �[I]t was only after the rebellion
had broken out and after the RCD had been created that Uganda began to
interact with the RCD, and even then, Uganda�s relationship with the RCD was
strictly political until after the middle of September 1998.� (Emphasis in
the original.) According to Uganda, its military support for the MLC and for
the RCD began in January 1999 and March 1999 respectively. Moreover, Uganda
argues that the nature and extent of its military support for the Congolese
rebels was consistent with and limited to the requirements of self-defence.
Uganda further states that it refrained from providing the rebels with the
kind or amount of support they would have required to achieve such
far-reaching purposes as the conquest of territory or the overthrow of the
Congolese Government.
**
ISSUE OF CONSENT
42. The Court now turns to the various issues connected with the first
submission of the DRC.
43. In response to the DRC�s allegations of military and paramilitary
activities amounting to aggression, Uganda states that from May 1997 (when
President Laurent-Désiré Kabila assumed power in Kinshasa) until 11
September 1998 (the date on which Uganda states that it decided to respond
on the basis of self-defence) it was present in the DRC with the latter�s
consent. It asserts that the DRC�s consent to the presence of Ugandan forces
was renewed in July 1999 by virtue of the terms of the Lusaka Agreement and
extended thereafter. Uganda defends its military actions in the intervening
period of 11 September 1998 to 10 July 1999 as lawful self-defence. The
Court will examine each of Uganda�s arguments in turn.
44. In a written answer to the question put to it by Judge Vereshchetin (see
paragraph 22 above), the DRC clarified that its claims relate to actions by
Uganda beginning in August 1998. However, as the Parties do not agree on the
characterization of events in that month, the Court deems it appropriate
first to analyse events which occurred a few months earlier, and the rules
of
international law applicable to them.
45. Relations between Laurent-Désiré Kabila and the Ugandan Government had
been close, and with the coming to power of the former there was a common
interest in controlling anti-government rebels who were active along the
Congo-Uganda border, carrying out in particular cross-border attacks against
Uganda. It seems certain that from mid-1997 and during the first part of
1998 Uganda was being allowed to engage in military action against
anti-Ugandan rebels in the eastern part of Congolese territory. Uganda
claims that its troops had been invited into eastern Congo by President
Kabila when he came to power in May 1997. The DRC has acknowledged that
�Ugandan troops were present on the territory of the Democratic Republic of
the Congo with the consent of the country�s lawful government�. It is clear
from the materials put before the Court that in the period preceding August
1998 the DRC did not object to Uganda�s military presence and activities in
its eastern border area. The written pleadings of the DRC make reference to
authorized Ugandan operations from September 1997 onwards. There is
reference to such authorized action by Uganda on 19 December 1997, in early
February 1998 and again in early July 1998, when the DRC authorized the
transfer of Ugandan units to Ntabi, in Congolese territory, in order to
fight more effectively against the ADF.
46. A series of bilateral meetings between the two governments took place in
Kinshasa from 11 to 13 August 1997, in Kampala from 6 to 7 April 1998 and
again in Kinshasa from 24 to 27 April 1998. This last meeting culminated in
a Protocol on Security along the Common Border being signed on 27 April 1998
between the two countries, making reference, inter alia, to the desire �to
put an end to the existence of the rebel groups operating on either side of
the common border, namely in the Ruwenzori�. The two parties agreed that
their respective armies would �co-operate in order to insure security and
peace along the common border�. The DRC contends that these words do not
constitute an �invitation or acceptance by either of the contracting parties
to send its army into the other�s territory�. The Court believes that both
the absence of any objection to the presence of Ugandan troops in the DRC in
the preceding months, and the practice subsequent to the signing of the
Protocol, support the view that the continued presence as before of Ugandan
troops would be permitted by the DRC by virtue of the Protocol. Uganda told
the Court that
�[p]ursuant to the Protocol, Uganda sent a third battalion into eastern
Congo, which brought her troop level up to approximately 2,000, and she
continued military operations against the armed groups in the region both
unilaterally and jointly with Congolese Government forces�.
The DRC has not denied this fact nor that its authorities accepted this
situation.
47. While the co-operation envisaged in the Protocol may be reasonably
understood as having its effect in a continued authorization of Ugandan
troops in the border area, it was not the legal basis for such authorization
or consent. The source of an authorization or consent to the crossing of the
border by these troops antedated the Protocol and this prior authorization
or consent could thus be withdrawn at any time by the Government of the DRC,
without further formalities being necessary.
48. The Court observes that when President Kabila came to power, the
influence of Uganda and in particular Rwanda in the DRC became substantial.
In this context it is worthy of note that many Rwandan officers held
positions of high rank in the Congolese army and that Colonel James
Kabarebe, of Rwandan nationality, was the Chief of Staff of the FAC (the
armed forces of the DRC). From late spring 1998, President Kabila sought,
for various reasons, to reduce this foreign influence; by mid-1998,
relations between President Kabila and his former allies had deteriorated.
In light of these circumstances the presence of Rwandan troops on Congolese
territory had in particular become a major concern for the Government of the
DRC.
49. On 28 July 1998, an official statement by President Kabila was
published, which read as follows:
�The Supreme Commander of the Congolese National Armed Forces, the Head of
State of the Republic of the Congo and the Minister of National Defence,
advises the Congolese people that he has just terminated, with effect from
this Monday 27 July 1998, the Rwandan military presence which has assisted
us during the period of the country�s liberation. Through these military
forces, he would like to thank all of the Rwandan people for the solidarity
they have demonstrated to date. He would also like to congratulate the
democratic Congolese people on their generosity of spirit for having
tolerated, provided shelter for and trained these friendly forces during
their stay in our country. This marks the end of the presence of all foreign
military forcesin the Congo.� [Translation by the Registry.]
50. The DRC has contended that, although there was no specific reference to
Ugandan troops in the statement, the final phrase indicated that consent was
withdrawn for Ugandan as well as Rwandan troops. It states that, having
learned of a plotted coup, President Kabila �officially announced . . . the
end of military co-operation with Rwanda and asked the Rwandan military to
return to their own country, adding that this marked the end of the presence
of foreign troops in the Congo�. The DRC further explains that Ugandan
forces were not mentioned because they were �very few in number in the
Congo� and were not to be treated in the same way as the Rwandan forces,
�who in the prevailing circumstances, were perceived as enemies suspected of
seeking to overthrow the régime�. Uganda, for its part, maintains that the
President�s statement was directed at Rwandan forces alone; that the final
phrase of the statement was not tantamount to the inclusion of a reference
to Ugandan troops; and that any withdrawal of consent for the presence of
Ugandan troops would have required a formal denunciation, by the DRC, of the
April 1998 Protocol.
51. The Court notes, first, that for reasons given above, no particular
formalities would have been required for the DRC to withdraw its consent to
the presence of Ugandan troops on its soil
As to the content of President Kabila�s statement, the Court observes that,
as a purely textual matter, the statement was ambiguous.
52. More pertinently, the Court draws attention to the fact that the consent
that had been given to Uganda to place its forces in the DRC, and to engage
in military operations, was not an open-ended consent. The DRC accepted that
Uganda could act, or assist in acting, against rebels on the eastern border
and in particular to stop them operating across the common border. Even had
consent to the Ugandan military presence extended much beyond the end of
July 1998, the parameters of that consent, in terms of geographic location
and objectives, would have remained
thus restricted.
53. In the event, the issue of withdrawal of consent by the DRC, and that of
expansion by Uganda of the scope and nature of its activities, went hand in
hand. The Court observes that at the Victoria Falls Summit (see paragraph 33
above) the DRC accused Rwanda and Uganda of invading its territory. Thus, it
appears evident to the Court that, whatever interpretation may be given to
President Kabila�s statement of 28 July 1998, any earlier consent by the DRC
to the presence of Ugandan troops on its territory had at the latest been
withdrawn by 8 August 1998, i.e. the closing date of the Victoria Falls
Summit.
54. The Court recalls that, independent of the conflicting views as to when
Congolese consent to the presence of Ugandan troops might have been
withdrawn, the DRC has informed the Court that its claims against Uganda
begin with what it terms an aggression commencing on 2 August 1998.
**
FINDINGS OF FACT CONCERNING UGANDA�S USE OF FORCE IN RESPECT OF KITONA
55. The Court observes that the dispute about the commencement date of the
military action by Uganda that was not covered by consent is, in the most
part, directed at the legal characterization of events rather than at
whether these events occurred. In some instances, however, Uganda denies
that its troops were ever present at particular locations, the military
action at Kitona being an important example. The DRC has informed the Court
that from 2 August 1998 Uganda was involved in military activities in the
DRC that violated international law, and that these were directed at the
overthrow of President Kabila. According to the DRC, Ugandan forces
(together with those of Rwanda) were involved on 4 August in heavy military
action at Kitona, which lies in the west of the DRC some 1,800 km from the
Ugandan frontier. Virtually simultaneously Uganda engaged in military action
in the east, first in Kivu and then in Orientale province. The DRC contends
that this was followed by an invasion of Equateur province in north-west
Congo. The DRC maintains that �[a]fter a few months of advances, the Ugandan
army had thus conquered several hundred thousand square kilometres of
territory�. The DRC provided a sketch-map to illustrate the alleged scope
and reach of Ugandan military activity.
56. Uganda characterizes the situation at the beginning of August 1998 as
that of a state of civil war in the DRC - a situation in which President
Kabila had turned to neighbouring Powers for assistance, including, notably,
the Sudan (see paragraphs 120-129 below). These events caused great security
concerns to Uganda. Uganda regarded the Sudan as a long-time enemy, which
now, as a result of the invitation from President Kabila, had a free rein to
act against Uganda and was better placed strategically to do so. Uganda
strongly denies that it engaged in military activity beyond the eastern
border area until 11 September. That military activity by its troops
occurred in the east during August is not denied by Uganda. But it insists
that it was not part of a plan agreed with Rwanda to overthrow President
Kabila: it was rather actions taken by virtue of the consent given by the
DRC to the operations by Uganda in the east, along their common border.
57. In accordance with its practice, the Court will first make its own
determination of the facts and then apply the relevant rules of
international law to the facts which it has found to have existed. The Court
will not attempt a determination of the overall factual situation as it
applied to
the vast territory of the DRC from August 1998 till July 2003. It will make
such findings of fact as are necessary for it to be able to respond to the
first submission of the DRC, the defences offered by Uganda, and the first
submissions of Uganda as regards its counter-claims. It is not the task of
the Court to make findings of fact (even if it were in a position to do so)
beyond these parameters.
58. These findings of fact necessarily entail an assessment of the evidence.
The Court has in this case been presented with a vast amount of materials
proffered by the Parties in support of their versions of the facts. The
Court has not only the task of deciding which of those materials must be
considered relevant, but also the duty to determine which of them have
probative value with regard to the alleged facts. The greater part of these
evidentiary materials appear in the annexes of the Parties to their written
pleadings. The Parties were also authorized by the Court to produce new
documents at a later stage. In the event, these contained important items.
There has also been reference, in both the written and the oral pleadings,
to material not annexed to the written pleadings but which the Court has
treated as �part of a publication readily available� under Article 56,
paragraph 4, of its Rules of Court. Those, too, have been examined by the
Court for purposes of its determination of the relevant facts.
59. As it has done in the past, the Court will examine the facts relevant to
each of the component elements of the claims advanced by the Parties. In so
doing, it will identify the documents relied on and make its own clear
assessment of their weight, reliability and value. In accordance with its
prior practice, the Court will explain what items it should eliminate from
further consideration (see Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), Merits, Judgment,
I.C.J. Reports 1986, p. 50, para. 85; see equally the practice followed in
the case concerning United States Diplomatic and Consular Staff in Tehran,
Judgment, I.C.J. Reports 1980, p. 3).
60. Both Parties have presented the Court with a vast amount of
documentation. The documents advanced in supporting findings of fact in the
present case include, inter alia, resolutions of the United Nations Security
Council, reports of the Special Rapporteur of the Commission on Human
Rights, reports and briefings of the OAU, communiqués by Heads of State,
letters of the Parties to the Security Council, reports of the
Secretary-General on MONUC, reports of the United Nations Panels of Experts
on the Illegal Exploitation of Natural Resources and Other Forms of Wealth
of the Democratic Republic of the Congo (hereinafter �United Nations Panel
reports�), the White Paper prepared by the Congolese Ministry of Human
Rights, the Porter Commission Report, the Ugandan White Paper on the Porter
Commission Report, books, reports by non-governmental organizations and
press reports.
61. The Court will treat with caution evidentiary materials specially
prepared for this case and also materials emanating from a single source. It
will prefer contemporaneous evidence from persons with direct knowledge. It
will give particular attention to reliable evidence acknowledging facts or
conduct unfavourable to the State represented by the person making them
(Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 41.
para. 64). The Court will also give weight to evidence that has not, even
before this litigation, been challenged by impartial persons for the
correctness of what it contains. The Court moreover notes that evidence
obtained by examination of persons directly involved, and who were
subsequently cross-examined by judges skilled in examination and experienced
in assessing large amounts of factual information, some of it of a technical
nature, merits special attention. The Court thus will give appropriate
consideration to the Report of the Porter Commission, which gathered
evidence in this manner. The Court further notes that, since its
publication, there has been no challenge to the credibility of this Report,
which has been accepted by both Parties.
62. The Court will embark upon its task by determining whether it has indeed
been proved to its satisfaction that Uganda invaded the DRC in early August
1998 and took part in the Kitona airborne operation on 4 August 1998. In the
Memorial the DRC claimed that on 4 August 1998 three Boeing aircraft from
Congo Airlines and Blue Airlines, and a Congolese plane from Lignes
Aériennes Congolaises (LAC), were boarded by armed forces from �aggressor
countries�, including Uganda, as they were about to leave Goma Airport. It
was claimed that, after refuelling
and taking on board ammunition in Kigali, they flew to the airbase in
Kitona, some 1,800 km from Uganda�s border, where several contingents of
foreign soldiers, including Ugandans, landed. It was claimed by the DRC that
these forces, among which were Ugandan troops, took Kitona, Boma, Matadi and
Inga, which they looted, as well as the Inga Dam. The DRC claimed that the
aim of Uganda and Rwanda was to march to Kinshasa and rapidly overthrow
President Kabila.
63. Uganda for its part has denied that its forces participated in the
airborne assault launched at Kitona, insisting that at the beginning of
August the only UPDF troops in the DRC were the three battalions in Beni and
Butembo, present with the consent of the Congolese authorities. In the oral
pleadings Uganda stated that it had been invited by Rwanda to join forces
with it in displacing President Kabila, but had declined to do so. No
evidence was advanced by either Party in relation to this contention. The
Court accordingly does not need to address the question of �intention� and
will concentrate on the factual evidence, as such.
64. In its Memorial the DRC relied on �testimonies of Ugandan and other
soldiers, who were captured and taken prisoners in their abortive attempt to
seize Kinshasa�. No further details were
provided, however. No such testimonies were ever produced to the Court,
either in the later written pleadings or in the oral pleadings. Certain
testimonies by persons of Congolese nationality were produced, however.
These include an interview with the Congo airline pilot, in which he refers
- in connection with the Kitona airborne operation - to the presence of both
Rwandans and Ugandans at Hotel Nyira. The Court notes that this statement
was prepared more than three years after the alleged events and some 20
months after the DRC lodged with the Court its Application commencing
proceedings. It contains no signature as such, though the pilot says he
�signed on the manuscript�. The interview was conducted by the Assistant
Legal Adviser at the Service for the Military Detection of Unpatriotic
Activities in the DRC. Notwithstanding the DRC�s position that there is
nothing in this or other such witness statements to suggest that they were
obtained under duress, the setting and context cannot therefore be regarded
as conducive to impartiality. The same conclusion has to be reached as
regards the interview with Issa Kisaka Kakule, a former rebel. Even in the
absence of these deficiencies, the statement of the airline pilot cannot
prove the arrival of Ugandan forces and their participation in the military
operation in Kitona. The statement of Lieutenant Colonel Viala Mbeang Ilwa
was more contemporaneous (15 October 1998) and is of some particular
interest, as he was the pilot of the plane said to have been hijacked. In it
he asserts that Ugandan officers at the hotel informed him of their plan to
topple President Kabila within ten days. There is, however, no indication of
how this statement was provided, or in what circumstances. The same is true
of the statement of Commander Mpele-Mpele regarding air traffic allegedly
indicating Ugandan participation in the Kitona operation.
65. The Court has been presented with some evidence concerning a Ugandan
national, referred to by the DRC as Salim Byaruhanga, said to be a prisoner
of war. The record of an interview following the visit of Ugandan Senator
Aggrey Awori consists of a translation, unsigned by the translator. Later,
the DRC produced for the Court a video, said to verify the meeting between
Mr. Awori and Ugandan prisoners. The video shows four men being asked
questions by another addressing them in a language of the region. One of
these says his name is �Salim Byaruhanga�. There is, however, no translation
provided, nor any information as to the source of this tape. There do exist
letters of August 2001 passing between the International Committee of the
Red Cross (ICRC) and the Congolese Government on the exchange of Ugandan
prisoners, one of whom is named as Salim Byaruhanga. However, the ICRC never
refers to this person as a member of the UPDF. Uganda has also furnished the
Court with a notarized affidavit of the Chief of Staff of the UPDF saying
that there were no Ugandan prisoners of war in the DRC, nor any officer by
the name of Salim Byaruhanga. This affidavit is stated to have been prepared
in November 2002, in view of the forthcoming case before the International
Court of Justice. The Court recalls that it has elsewhere observed that a
member of the government of a State engaged in litigation before this Court
- and especially litigation relating to armed conflict - �will probably tend
to identify himself with the interests of his country� (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, p. 43, para. 70). The
same may be said of a senior military officer of such a State, and�while in
no way impugning the honour or veracity� of such a person, the Court should
�treat such evidence with great reserve� (ibid.).
66. The Court observes that, even if such a person existed and even if he
was a prisoner of war, there is nothing in the ICRC letters that refers to
his participation (or to the participation of other Ugandan nationals) at
Kitona. Equally, the PANA Agency press communiqué of 17 September 2001
mentions Salim Byaruhanga when referring to the release of four Ugandan
soldiers taken prisoner in 1998 and 1999 - but there is no reference to
participation in action in Kitona.
67. The press statements issued by the Democratic Party of Uganda on 14 and
18 September 1998, which refer to Ugandan troops being flown to western
Congo from Gala Airport, make no reference to the location of Kitona or to
events there on 4 August.
68. Nor can the truth about the Kitona airborne operation be established by
extracts from a few newspapers, or magazine articles, which rely on a single
source (Agence France Presse, 2 September 1998); on an interested source
(Integrated Regional Information Networks (hereinafter IRIN)), or give no
sources at all (Pierre Barbancey, Regards 41). The Court has explained in an
earlier case that press information may be useful as evidence when it is
�wholly consistent and concordant as to the main facts and circumstances of
the case� (United States Diplomatic and Consular Staff in Tehran, Judgment,
I.C.J. Reports 1980, p. 10, para. 13), but that particular caution should be
shown in this area. The Court observes that this requirement of consistency
and concordance is not present in the journalistic accounts. For example,
while Professor Weiss referred to 150 Ugandan troops under the command of
the Rwandan Colonel Kaberebe at Kitona in an article relating to the events
in the DRC, the Belgian journalist Mrs. Braekman wrote about rebels fleeing
a Ugandan battalion of several hundred men.
69. The Court cannot give weight to claims made by the DRC that a Ugandan
tank was used in the Kitona operation. It would seem that a tank of the type
claimed to be �Ugandan� was captured at Kasangulu. This type of tank - a
T-55 - was in fact one used also by the DRC itself and by Rwanda. The DRC
does not clarify in its argument whether a single tank was transported from
Uganda, nor does it specify, with supporting evidence, on which of the
planes mentioned (a
Boeing 727, Ilyushin 76, Boeing 707 or Antonov 32) it was transported from
Uganda. The reference by the DRC to the picture of Mr. Bemba, the leader of
the MLC, on a tank of this type in his book Le choix de la liberté,
published in 2001, cannot prove its use by Ugandan forces in Kitona. Indeed,
the Court finds it more pertinent that in his book Mr. Bemba makes no
mention of the involvement of Ugandan troops at Kitona, but rather confirms
that Rwanda took control of the military base in Kitona.
70. The Court has also noted that contemporaneous documentation clearly
indicated that at the time the DRC regarded the Kitona operation as having
been carried out by Rwanda. Thus the White Paper annexed to the Application
of the DRC states that between 600 and 800 Rwandan soldiers were involved in
the Kitona operation on 4 August. The letter sent by the Permanent
Representative of the DRC on 2 September 1998 to the President of the
Security Council referred to 800 soldiers from Rwanda being involved in the
Kitona operation on 4 August 1998. This perception seems to be confirmed by
the report of the Special Rapporteur of the Commission on Human Rights in
February 1999, where reference is made to Rwandan troops arriving in Kitona
on 4 August in order to attack Kinshasa. The press conference given at
United Nations Headquarters in New York by the Permanent Representative of
the DRC to the United Nations on 13 August 1998 only referred to Rwandan
soldiers conducting the Kitona airborne operation on 4 August, and to
Ugandan troops advancing upon Bunia on 9 August.
71. The Court thus concludes that, on the basis of the evidence before it,
it has not been established to its satisfaction that Uganda participated in
the attack on Kitona on 4 August 1998.
*
FINDINGS OF FACT: MILITARY ACTION IN THE EAST OF THE DRC AND
IN OTHER AREAS OF THAT COUNTRY
72. The Court will next analyse the claim made by the DRC of military action
by Uganda in the east of the DRC during August 1998. The facts regarding
this action are relatively little contested between the Parties. Their
dispute is as to how these facts should be characterized. The Court must
first establish which relevant facts it regards as having been convincingly
established by the evidence, and which thus fall for scrutiny by reference
to the applicable rules of international law.
73. The Court finds it convenient at this juncture to explain that its
determination of the facts as to the Ugandan presence at, and taking of,
certain locations is independent of the sketch-map evidence offered by the
Parties in support of their claims in this regard. In the response given by
the DRC to the question of Judge Kooijmans, reference was made to the
sketch-map provided by
the DRC (see paragraph 55 above) to confirm the scope of the Ugandan
�invasion and occupation�. This sketch-map is based on a map of approximate
deployment of forces in the DRC contained in a Report (Africa Report No. 26)
prepared by International Crisis Group (hereinafter ICG), an independent,
non-governmental body, whose reports are based on information and assessment
from the field. On the ICG map, forces of the MLC and Uganda are shown to be
�deployed� in certain positions to the north-west (Gbadolite, Zongo, Gemena,
Bondo, Buta, Bumba, Lisala, Bomongo, Basankusu, and Mbandaka); and Ugandan
and �RCD-Wamba� (officially known as RCD-Kisangani) forces are shown as
�deployed� on the eastern frontier at Bunia, Beni and Isiro. The presence of
Uganda and RCD-Wamba forces is shown at two further unspecified locations.
74. As to the sketch-maps which Uganda provided at the request of Judge
Kooijmans, the DRC argues that they are too late to be relied on and were
unilaterally prepared without any reference to independent source materials.
75. In the view of the Court, these maps lack the authority and credibility,
tested against other evidence, that is required for the Court to place
reliance on them. They are at best an aid to the understanding of what is
contended by the Parties. These sketch-maps necessarily lack precision. With
reference to the ICG map (see paragraph 73 above), there is also the issue
of whether MLC forces deployed in the north-west may, without yet further
findings of fact and law, be treated as �Ugandan� forces for purposes of the
DRC�s claim of invasion and occupation. The same is true for the RCD-Wamba
forces deployed in the north-east.
76. Uganda has stated, in its response to the question put to it during the
oral proceedings by Judge Kooijmans (see paragraph 22 above), that as of 1
August 1998 �there were three battalions
of UPDF troops - not exceeding 2,000 soldiers - in the eastern border areas
of the DRC, particularly in the northern part of North Kivu Province (around
Beni and Butembo) and the southern part of Orientale Province (around
Bunia)�. Uganda states that it �modestly augmented
the UPDF presence in the Eastern border� in response to various events. It
has informed the Court that a UPDF battalion went into Bunia on 13 August,
and that a single battalion had been sent to Watsa �to maintain the
situation between Bunia and the DRC�s border with Sudan�. Uganda further
states in its response to Judge Kooijmans� question that by the end of
August 1998 there were no Ugandan forces present in South Kivu, Maniema or
Kasai Oriental province; �nor were Ugandan forces present in North Kivu
Province south of the vicinity of Butembo�.
77. The DRC has indicated that Beni and Butembo were taken by Ugandan troops
on 6 August 1998, Bunia on 13 August and Watsa on 25 August.
78. The Court finds that most evidence of events in this period is indirect
and less reliable than that which emerges from statements made under oath
before the Porter Commission. The Court has already noted that statements
�emanating from high-ranking official political figures, sometimes indeed of
the highest rank, are of particular probative value when they acknowledge
facts or conduct unfavourable to the State represented by the person who
made them� (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports
1986, p. 41, para. 64). The Court believes the same to be the case when such
statements against interest are made by senior military officers given the
objective circumstances in which those statements were taken. Accordingly,
the Court finds it relevant that before the Porter Commission, Brigadier
General Kazini, who was commander of the Ugandan forces in the DRC, referred
to �the capture of Beni, that was on 7 August 1998�.
79. He also referred to 8 August 1998 as the date of capture of Beni, 7
August being the date �that was the fighting (when it took place) and our
troops occupied Beni�. The Court is satisfied
that Beni was taken on 7 August, and Bunia on 13 August. There is some small
uncertainty about
the precise date of the taking of Watsa, though none as to the fact of its
being taken in this period. A report by Lieutenant Colonel Waswa (Annexure
G, Porter Commission Report) asserts that the �7[th] infantry B[attalio]n
operational force� entered the DRC at Aru on 10 August, leaving there on 14
August, and �went to Watsa via Duruba 250 km away from the Uganda-Congo
border. The force spent one day at Duruba, i.e., 23 August 1998 and
proceeded to Watsa which is 40 km where we arrived on 24 August 1998.�
Twenty days were said by him to have been spent at Watsa, where the airport
was secured. Notwithstanding that this report was dated 18 May 2001, the
Court notes that it is detailed, specific and falls within the rubric of
admission against interest to which the Court will give weight. However,
Justice Porter refers to 29 August as the relevant date for Watsa; whereas,
in its response to the question of Judge Kooijmans, the DRC gives the date
of 25 August for the �prise de Watsa� [taking of Watsa].
80. The Court will now consider the events of September 1998 on the basis of
the evidence before it. Uganda acknowledges that it sent part of a battalion
to Kisangani Airport, to guard that
facility, on 1 September 1998. It has been amply demonstrated that on
several later occasions, -
notably in August 1999 and in May and June 2000, Uganda engaged in
large-scale fighting in Kisangani against Rwandan forces, which were also
present there.
81. The Court notes that a schedule was given by the Ugandan military to the
Porter Commission containing a composite listing of locations and
corresponding �dates of capture�. The Court observes that the period it
covers stops short of the period covered by the DRC�s claims. This evidence
was put before the Court by Uganda. It includes references to locations not
mentioned by the DRC, whose list, contained in the response to Judge
Kooijmans� question, is limited to places said to have been �taken�. The
Court simply observes that Ugandan evidence before the Porter Commission in
relation to the month of September 1998 refers to Kisangani (1 September);
Munubele (17 September); Bengamisa (18 September); Banalia (19 September);
Isiro (20 September); Faladje (23 September); and Tele Bridge (29
September). Kisangani (1 September) and Isiro (20 September) are
acknowledged by Uganda as having been �taken� by its forces (and not just as
locations passed through).
82. As for the events of October 1998, Uganda has confirmed that it was at
Buta on 3 October and Aketi on 6 October. The DRC lists the taking of Aketi
as 8 November (response to the question put by Judge Kooijmans), but the
Court sees no reason for this date to be preferred. Both Parties agree that
Buta was taken on 3 October and Dulia on 27 October. The Porter Commission
was informed that Ugandan troops were present at Bafwasende on 12 October.
83. The DRC has alleged that Kindu was taken by Ugandan troops on 20 October
1998; this was denied in some detail by Uganda in its Rejoinder. No response
was made in the oral pleadings by the DRC to the reasons given by Uganda for
denying it had taken Kindu. Nor is Kindu in the listing given by the Ugandan
military authorities to the Porter Commission. The Court does not feel it
has convincing evidence as to Kindu having been taken by Ugandan forces in
October 1998.
84. There is agreement between the Parties that Bumba was taken on 17
November 1998.
85. Uganda claims that Lisala was taken on 12 December 1998. The list
contained in the Porter Commission exhibits makes reference to the location
of Benda, with the date of 13 December. Also listed are Titure (20 December)
and Poko (22 December). Uganda insists it �came to� Businga on 28 December
1998 and not in early February 1999 as claimed by the DRC; and to Gemena on
25 December 1998, and not on 10 July 1999 as also claimed by the DRC. These
discrepancies do not favour the case of Uganda and the Court accepts the
earlier dates claimed by Uganda.
86. The DRC claims that Ango was taken on 5 January 1999, and this is agreed
by Uganda. There also appears in the Ugandan �location/dates of capture�
list, Lino-Mbambi (2 January 1999) and Lino (same date), Akula Port (4
February); Kuna (1 March); Ngai (4 March); Bonzanga (19 March); Pumtsi (31
March); Bondo (28 April); Katete (28 April); Baso Adia (17 May); Ndanga (17
May); Bongandanga (22 May); Wapinda (23 May); Kalawa Junchai (28 May);
Bosobata (30 May); Bosobolo (9 June); Abuzi (17 June); Nduu (22 June); Pimu
Bridge (27 June); Busingaloko Bridge (28 June); Yakoma (30 June); and
Bogbonga (30 June). All of these appear to be locations which Ugandan forces
were rapidly traversing. The sole place claimed by the DRC to have been
�taken� in this period was Mobeka - a precise date for which is given by
Uganda (30 June 1999).
87. The DRC claims Gbadolite to have been taken on 3 July 1999 and that fact
is agreed by Uganda. The Ugandan list refers also to Mowaka (1 July); Ebonga
(2 July); Pambwa Junction (2 July); Bosomera (3 July); Djombo (4 July);
Bokota (4 July); Bolomudanda Junction (4 July); the crossing of Yakoma
Bridge (4 July); Mabaye (4 July); Businga (7 July); Katakoli (8 July);
Libenge (29 July); Zongo (30 July); and Makanza (31 July).
88. The DRC also claims Bongandanga and Basankusu (two locations in the
extreme south of Equateur province) to have been taken on 30 November 1999;
Bomorge, Moboza and Dongo at unspecified dates in February 2000; Inese and
Bururu in April 2000; and Mobenzene in June 2000.
89. There is considerable controversy between the Parties over the DRC�s
claim regarding towns taken after 10 July 1999. The Court recalls that on
this date the Parties had agreed to a ceasefire and to all the further
provisions of the Lusaka Agreement. Uganda has insisted that Gemena was
taken in December 1998 and the Court finds this date more plausible. Uganda
further states in its observations on the DRC�s response to the question of
Judge Kooijmans that �there is no evidence that Ugandan forces were ever in
Mobenzene, Bururu, Bomongo, and Moboza at any time�. The Court observes that
Uganda�s list before the Porter Commission also makes no reference to Dongo
at all during this period.
90. Uganda limits itself to stating that equally no military offensives were
initiated by Uganda at Zongo, Basankuso and Dongo during the post-Lusaka
periods; rather, �the MLC, with some limited Ugandan assistance, repulsed
[attacks by the FAC in violation of the Lusaka Agreement]�.
91. The Court makes no findings as to the responsibility of each of the
Parties for any violations of the Lusaka Agreement. It confines itself to
stating that it has not received convincing evidence that Ugandan forces
were present at Mobenzene, Bururu, Bomongo and Moboza in the period under
consideration by the Court for purposes of responding to the final
submissions of the DRC.
**
DID THE LUSAKA, KAMPALA AND HARARE AGREEMENTS CONSTITUTE ANY CONSENT OF THE
DRC TO THE PRESENCE OF UGANDAN TROOPS?
92. It is the position of Uganda that its military actions until 11
September 1998 were carried out with the consent of the DRC, that from 11
September 1998 until 10 July 1999 it was acting in self-defence, and that
thereafter the presence of its soldiers was again consented to under the
Lusaka Agreement.
The Court will first consider whether the Lusaka Agreement, the Kampala and
Harare Disengagement Plans and the Luanda Agreement constituted consent to
the presence of Ugandan
troops on the territory of the DRC.
93. The Court issued on 29 November 2001 an Order regarding counter-claims
contained in the Counter-Memorial of Uganda. The Court found certain of
Uganda�s counter-claims to be admissible as such. However, it found Uganda�s
third counter-claim, alleging violations by the DRC of the Lusaka Agreement,
to be �not directly connected with the subject-matter of the Congo�s
claims�. Accordingly, the Court found this counter-claim not admissible
under Article 80, paragraph 1, of the Rules of Court.
94. It does not follow, however, that the Lusaka Agreement is thereby
excluded from all consideration by the Court. Its terms may certainly be
examined in the context of responding to Uganda�s contention that, according
to its provisions, consent was given by the DRC to the presence of Ugandan
troops from the date of its conclusion (10 July 1999) until all the
requirements contained therein should have been fulfilled.
95. The Lusaka Agreement does not refer to �consent�. It confines itself to
providing that �[t]he final withdrawal of all foreign forces from the
national territory of the DRC shall be carried out in accordance with the
Calendar in Annex �B� of this Agreement and a withdrawal schedule to be
prepared by the UN, the OAU and the JMC [Joint Military Commission]�
(Article III, paragraph 12). Under the terms of Annex �B�, the Calendar for
the Implementation of the Ceasefire Agreement was dependent upon a series of
designated �Major Events� which were to follow upon the official signature
of the Agreement (�D-Day�). This �Orderly Withdrawal of all Foreign Forces�
was to occur on �D-Day plus 180 days�. It was provided that, pending that
withdrawal, �[a]ll forces shall remain in the declared and recorded
locations� in which they were
present at the date of signature of the Agreement (Ann. A, Art. 11.4).
96. The Court first observes that nothing in the provisions of the Lusaka
Agreement can be interpreted as an affirmation that the security interests
of Uganda had already required the presence of Ugandan forces on the
territory of the DRC as from September 1998, as claimed by Uganda in the
oral proceedings.
97. The Lusaka Agreement is, as Uganda argues, more than a mere ceasefire
agreement, in that it lays down various �principles� (Art. III) which cover
both the internal situation within the DRC and its relations with its
neighbours. The three annexes appended to the Agreement deal with these
matters in some considerable detail. The Agreement goes beyond the mere
ordering of the parties to cease hostilities; it provides a framework to
facilitate the orderly withdrawal of all foreign forces to a stable and
secure environment. The Court observes that the letter from the
Secretary-General of the United Nations to the President of Uganda of 4 May
2001, calling for Uganda to adhere to the agreed timetable for orderly
withdrawal, is to be read in that light. It carries no implication as to the
Ugandan military presence having been accepted as lawful. The overall
provisions of the Lusaka Agreement acknowledge the importance of internal
stability in the DRC for all of its neighbours. However, the Court cannot
accept the argument made by Uganda in the oral proceedings that the Lusaka
Agreement constituted �an acceptance by all parties of Uganda�s
justification for sending additional troops into the DRC between
mid-September 1998 and mid-July 1999�.
98. A more complex question, on which the Parties took clearly opposed
positions, was whether the calendar for withdrawal and its relationship to
the series of �Major Events�, taken together with the reference to the
�D-Day plus 180 days�, constituted consent by the DRC to the presence of
Ugandan forces for at least 180 days from 10 July 1999 - and indeed beyond
that time if the envisaged necessary �Major Events� did not occur.
99. The Court is of the view that, notwithstanding the special features of
the Lusaka Agreement just described, this conclusion cannot be drawn. The
Agreement took as its starting point the realities on the ground. Among
those realities were the major Ugandan military deployment across vast areas
of the DRC and the massive loss of life over the preceding months. The
arrangements made at Lusaka, to progress towards withdrawal of foreign
forces and an eventual peace, with security for all concerned, were directed
at these factors on the ground and at the realities of the unstable
political and security situation. The provisions of the Lusaka Agreement
thus represented an agreed modus operandi for the parties. They stipulated
how the parties should move forward. They did not purport to qualify the
Ugandan military presence in legal terms. In accepting this modus operandi
the DRC did not �consent� to the presence of Ugandan troops. It simply
concurred that there should be a process to end that reality in an orderly
fashion. The DRC was willing to proceed from the situation on the ground as
it existed and in the manner agreed as most likely to secure the result of a
withdrawal of foreign troops in a stable environment. But it did not thereby
recognize the situation on the ground as legal, either before the Lusaka
Agreement or in the period that would pass until the fulfilment of its
terms.
100. In resolution 1234 of 9 April 1999 the Security Council had called for
the �immediate signing of a ceasefire agreement� allowing for, inter alia,
�the orderly withdrawal of all foreign forces�. The Security Council fully
appreciated that this withdrawal would entail political and security
elements, as shown in paragraphs 4 and 5 of resolution 1234 (1999). This
call was reflected three months later in the Lusaka Agreement. But these
arrangements did not preclude the Security Council from continuing to
identify Uganda and Rwanda as having violated the sovereignty and
territorial integrity of the DRC and as being under an obligation to
withdraw their forces �without further delay, in conformity with the
timetable of the Ceasefire Agreement�
(Security Council resolution 1304, 16 June 2000), i.e., without any delay to
the modus operandi
provisions agreed upon by the parties.
101. This conclusion as to the effect of the Lusaka Agreement upon the
legality of the presence of Ugandan troops on Congolese territory did not
change with the revisions to the timetable that became necessary. The
Kampala Disengagement Plan of 8 April 2000 and the Harare Disengagement Plan
of 6 December 2000 provided for new schedules for withdrawal, it having
become apparent that the original schedule in the Annex to the Lusaka
Agreement was unrealistic. While the status of Ugandan troops remained
unchanged, the delay in relation to the D-Day plus 180 days envisaged in the
Lusaka Agreement likewise did not change the legal status
of the presence of Uganda, all parties having agreed to these delays to the
withdrawal calendar.
102. The Luanda Agreement, a bilateral agreement between the DRC and Uganda
on �withdrawal of Ugandan troops from the Democratic Republic of the Congo,
co-operation and normalisation of relations between the two countries�,
alters the terms of the multilateral Lusaka
Agreement. The other parties offered no objection.
103. The withdrawal of Ugandan forces was now to be carried out �in
accordance with the Implementation Plan marked Annex �A� and attached
thereto� (Article 1, paragraph 1). This envisaged the completion of
withdrawal within 100 days after signature, save for the areas of Gbadolite,
Beni and their vicinities, where there was to be an immediate withdrawal of
troops (Article 1, paragraph 2). The Parties also agreed that �the Ugandan
troops shall remain on the slopes of Mt. Ruwenzori until the Parties put in
place security mechanisms guaranteeing Uganda�s security, including training
and co-ordinated patrol of the common border�.
104. The Court observes that, as with the Lusaka Agreement, none of these
elements purport generally to determine that Ugandan forces had been legally
present on the territory of the DRC. The Luanda Agreement revised the modus
operandi for achieving the withdrawal of Ugandan forces in a stable security
situation. It was now agreed - without reference to whether or not Ugandan
forces had been present in the area when the agreement was signed, and to
whether any
such presence was lawful - that their presence on Mount Ruwenzori should be
authorized, if need
be, after the withdrawal elsewhere had been completed until appropriate
security mechanisms had been put in place. The Court observes that this
reflects the acknowledgment by both Parties of Uganda�s security needs in
the area, without pronouncing upon the legality of prior Ugandan military
actions there or elsewhere.
105. The Court thus concludes that the various treaties directed to
achieving and maintaining a ceasefire, the withdrawal of foreign forces and
the stabilization of relations between the DRC and Uganda did not (save for
the limited exception regarding the border region of the Ruwenzori
Mountains contained in the Luanda Agreement) constitute consent by the DRC
to the presence of
Ugandan troops on its territory for the period after July 1999, in the sense
of validating that presence in law.
**
SELF-DEFENCE IN THE LIGHT OF PROVEN FACTS
106. The Court has already said that, on the basis of the evidence before
it, it has not been established to its satisfaction that Uganda participated
in the attack on Kitona on 4 August 1998 (see paragraph 71 above). The Court
has also indicated that with regard to the presence of Ugandan troops on
Congolese territory near to the common border after the end of July 1998,
President Kabila�s statement on 28 July 1998 was ambiguous (see paragraph 51
above). The Court has further found that any earlier consent by the DRC to
the presence of Ugandan troops on its territory had at the latest been
withdrawn by 8 August 1998 (see paragraph 53 above). The Court now turns to
examine whether Uganda�s military activities starting from this date could
be justified as actions in self-defence.
107. The DRC has contended that Uganda invaded on 2 August 1998, beginning
with a major airborne operation at Kitona in the west of the DRC, then
rapidly capturing or taking towns in the east, and then, continuing to the
north-west of the country. According to the DRC, some of this military
action was taken by the UPDF alone or was taken in conjunction with
anti-government rebels and/or with Rwanda. It submits that Uganda was soon
in occupation of a third of the DRC and that its forces only left in April
2003.
108. Uganda insists that 2 August 1998 marked the date only of the beginning
of civil war in the DRC and that, although Rwanda had invited it to join in
an effort to overthrow President Kabila, it had declined. Uganda contends
that it did not act jointly with Rwanda in Kitona and that it had the
consent of the DRC for its military operations in the east until the date of
11 September 1998. 11 September was the date of issue of the �Position of
the High Command on the Presence of the UPDF in the DRC� (hereinafter �the
Ugandan High Command document�) (see paragraph 109 below). Uganda now
greatly increased the number of its troops from that date on. Uganda
acknowledges that its military operations thereafter can only be justified
by reference to an entitlement to act in self-defence.
109. The Court finds it useful at this point to reproduce in its entirety
the Ugandan High Command document. This document has been relied on by both
Parties in this case. The High Command document, although mentioning the
date of 11 September 1998, in the Court�s view, provides the basis for the
operation known as operation �Safe Haven�. The document reads as
follows:
�WHEREAS for a long time the DRC has been used by the enemies of Uganda as a
base and launching pad for attacks against Uganda;
AND
WHEREAS the successive governments of the DRC have not been in effective
control of all the territory of the Congo;
AND
WHEREAS in May 1997, on the basis of a mutual understanding the Government
of Uganda deployed UPDF to jointly operate with the Congolese Army against
Uganda enemy forces in the DRC;
AND
WHEREAS when an anti-Kabila rebellion erupted in the DRC the forces of the
UPDF were still operating along side the Congolese Army in the DRC, against
Uganda enemy forces who had fled back to the DRC;
NOW THEREFORE the High Command sitting in Kampala this 11th day of
September, 1998, resolves to maintain forces of the UPDF in order to secure
Uganda�s legitimate security interests which are the following:
1. To deny the Sudan opportunity to use the territory of the DRC to
destabilize Uganda.
2. To enable UPDF neutralize Uganda dissident groups which have been
receiving assistance from the Government of the DRC and the Sudan.
3. To ensure that the political and administrative vacuum, and instability
caused by the fighting between the rebels and the Congolese Army and its
allies do not adversely affect the security of Uganda.
4. To prevent the genocidal elements, namely, the Interahamwe, and ex-FAR,
which have been launching attacks on the people of Uganda from the DRC, from
continuing to do so.
5. To be in position to safeguard the territory integrity of Uganda against
irresponsible threats of invasion from certain forces.�
110. In turning to its assessment of the legal character of Uganda�s
activities at Aru, Beni, Bunia and Watsa in August 1998, the Court begins by
observing that, while it is true that those localities are all in close
proximity to the border, �as per the consent that had been given previously
by President Kabila�, the nature of Ugandan action at these locations was of
a different nature from previous operations along the common border. Uganda
was not in August 1998 engaging in military operations against rebels who
carried out cross-border raids. Rather, it was engaged in military assaults
that resulted in the taking of the town of Beni and its airfield between 7
and 8 August, followed by the taking of the town of Bunia and its airport on
13 August, and the town of Watsa and its airport at a date between 24 and 29
August.
111. The Court finds these actions to be quite outside any mutual
understanding between the Parties as to Uganda�s presence on Congolese
territory near to the border. The issue of when any
consent may have terminated is irrelevant when the actions concerned are so
clearly beyond co-operation �in order to ensure peace and security along the
common border�, as had been confirmed in the Protocol of 27 April 1998.
112. The Court observes that the Ugandan operations against these eastern
border towns could therefore only be justified, if at all, as actions in
self-defence. However, at no time has Uganda sought to justify them on this
basis before the Court.
113. Operation �Safe Haven�, by contrast, was firmly rooted in a claimed
entitlement �to secure Uganda�s legitimate security interests� rather than
in any claim of consent on the part of the DRC. The Court notes, however,
that those most intimately involved in its execution regarded the military
actions throughout August 1998 as already part and parcel of operation �Safe
Haven�.
114. Thus Mr. Kavuma, the Minister of State for Defence, informed the Porter
Commission that the UPDF troops first crossed the border at the beginning of
August 1998, at the time of the rebellion against President Kabila, �when
there was confusion inside the DRC� (Porter Commission document CW 01/02
23/07/01, p. 23). He confirmed that this �entry� was �to defend our security
interests�. The commander of the Ugandan forces in the DRC, General Kazini,
who had immediate control in the field, informing Kampala and receiving
thereafter any further orders, was asked �[w]hen was �Operation Safe Haven�?
When did it commence?� He replied �[i]t was in the month of August. That
very month of August 1998. �Safe Haven� started after the capture of Beni,
that was on 7 August 1998.� (CW/01/03 24/07/01, p. 774.) General Kazini
emphasized that the Beni operation was the watershed: �So before that . . .
�Operation Safe Haven� had not started. It was the normal UPDF operations -
counter-insurgency operations in the Rwenzoris before that date of 7 August,
1998.� (CW/01/03 24/07/01, p. 129.) He spoke of �the earlier plan� being
that both Governments, in the form of the UPDF and the FAC, would jointly
deal with the rebels along the border. �But now this new phenomenon had
developed: there was a mutiny, the rebels were taking control of those
areas. So we decided to launch an offensive together with the rebels, a
special operation we code-named �Safe Haven�.� General Kazini was asked by
Justice Porter what was the objective of this joint offensive with the
rebels. General Kazini replied �[t]o crush the bandits together with their
FAC allies� and confirmed that by �FAC� he meant the �Congolese Government
Army� (CW/01/03 24/07/01, p. 129).
115. It is thus clear to the Court that Uganda itself actually regarded the
military events of August 1998 as part and parcel of operation �Safe Haven�,
and not as falling within whatever �mutual understandings� there had
previously been.
116. The Court has noted that within a very short space of time Ugandan
forces had moved rapidly beyond these border towns. It is agreed by all that
by 1 September 1998 the UPDF was at
Kisangani, very far from the border. Furthermore, Lieutenant Colonel Magenyi
informed the Porter Commission, under examination, that he had entered the
DRC on 13 August and stayed there till mid-February 1999. He was based at
Isiro, some 580 km from the border. His brigade had fought its way there:
�we were fighting the ADFs who were supported by the FAC�.
117. Accordingly, the Court will make no distinction between the events of
August 1998 and those in the ensuing months.
118. Before this Court Uganda has qualified its action starting from
mid-September 1998 as action in self-defence. The Court will thus examine
whether, throughout the period when its forces were rapidly advancing across
the DRC, Uganda was entitled to engage in military action in self-defence
against the DRC. For these purposes, the Court will not examine whether each
individual military action by the UPDF could have been characterized as
action in self-defence, unless it can be shown, as a general proposition,
that Uganda was entitled to act in self-defence in the DRC in the period
from August 1998 till June 2003.
119. The Court first observes that the objectives of operation �Safe Haven�,
as stated in the Ugandan High Command document (see paragraph 109 above),
were not consonant with the
concept of self-defence as understood in international law.
120. Uganda in its response to the question put to it by Judge Kooijmans
(see paragraph 22 above) confirms that the changed policies of President
Kabila had meant that co-operation incontrolling insurgency in the border
areas had been replaced by �stepped-up cross-border attacks against Uganda
by the ADF, which was being re-supplied and re-equipped by the Sudan and the
DRC Government�. The Court considers that, in order to ascertain whether
Uganda was entitled to engage in military action on Congolese territory in
self-defence, it is first necessary to examine the reliability of these
claims. It will thus begin by an examination of the evidence concerning the
role that the Sudan was playing in the DRC at the relevant time.
121. Uganda claimed that there was a tripartite conspiracy in 1998 between
the DRC, the ADF and the Sudan; that the Sudan provided military assistance
to the DRC�s army and to anti-Ugandan rebel groups; that the Sudan used
Congo airfields to deliver materiel; that the Sudan airlifted rebels and its
own army units around the country; that Sudanese aircraft bombed the UPDF
positions at Bunia on 26 August 1998; that a Sudanese brigade of 2,500
troops was in Gbadolite and was preparing to engage the UPDF forces in
eastern Congo; and that the DRC encouraged and facilitated stepped-up cross
border attacks from May 1998 onwards.
122. The Court observes, more specifically, that in its Counter-Memorial
Uganda claimed that from 1994 to 1997 anti-Ugandan insurgents �received
direct support from the Government of Sudan� and that the latter trained and
armed insurgent groups, in part to destabilize Uganda�s status as a �good
example� in Africa. For this, Uganda relied on a Human Rights Watch
(hereinafter HRW) report. The Court notes that this report is on the subject
of slavery in the Sudan and does not assist with the issue before the Court.
It also relied on a Ugandan political report which simply claimed, without
offering supporting evidence, that the Sudan was backing groups launching
attacks from the DRC. It further relies on an HRW report of 2000 stating
that the Sudan was providing military and logistical assistance to the LRA,
in the north of Uganda, and to the SPLM/A (by which Uganda does not claim to
have been attacked). The claims relating to the LRA, which are also
contained in the Counter-Memorial of Uganda, have no relevance to the
present case. No more relevant is the HRW report of 1998 criticizing the use
of child soldiers in northern Uganda.
123. The Court has next examined the evidence advanced to support the
assertion that the Sudan was supporting anti-Ugandan groups which were based
in the DRC, namely FUNA, UNRF II and NALU. This consists of a Ugandan
political report of 1998 which itself offers no evidence, and an address by
President Museveni of 2000. These documents do not constitute probative
evidence of the points claimed.
124. Uganda states that President Kabila entered into an alliance with the
Sudan, �which he invited to occupy and utilise airfields in north-eastern
Congo for two purposes: delivering arms and other supplies to the
insurgents; and conducting aerial bombardment of Uganda towns and villages�.
Only President Museveni�s address to Parliament is relied on. Certain
assertions relating to the son of Idi Amin, and the role he was being given
in the Congolese military, even were they true, prove nothing as regards the
specific allegations concerning the Sudan.
125. Uganda has informed the Court that a visit was made by President Kabila
in May 1998 to the Sudan, in order to put at the Sudan�s disposal all the
airfields in northern and eastern Congo, and to deliver arms and troops to
anti-Ugandan insurgents along Uganda�s border. Uganda offered as evidence
President Museveni�s address to Parliament, together with an undated,
unsigned internal Ugandan military intelligence document. Claims as to what
was agreed as a result of any such meeting that might have taken place
remain unproven.
126. Uganda informed the Court that Uganda military intelligence reported
that in August 1998 the Sudan airlifted insurgents from the WNBF and LRA to
fight alongside Congolese forces against RPA and RCD rebels. The Court
observes that, even were that proven (which in the Court�s view is not the
case), the DRC was entitled so to have acted. This invitation could not of
itself have entitled Uganda to use force in self-defence. The Court has not
been able to verify from concordant evidence the claim that the Sudan
transported an entire Chadian brigade to Gbadolite (whether to join in
attacks on Uganda or otherwise).
127. The Court further observes that claims that the Sudan was training and
transporting FAC troops, at the request of the Congolese Government, cannot
entitle Uganda to use force in self-defence, even were the alleged facts
proven. In the event, such proof is not provided by the unsigned Ugandan
military intelligence document, nor by a political report that Uganda relies
on.
128. Article 51 of the Charter refers to the right of �individual or
collective� self-defence. The Court notes that a State may invite another
State to assist it in using force in self-defence. On 2 August 1998 civil
war had broken out in the DRC and General Kazini later testified to the
Porter Commission that operation �Safe Haven� began on 7-8 August 1998. The
Ugandan written pleadings state that on 14 August 1998 Brigadier Khalil of
the Sudan delivered three planeloads of weapons to the FAC in Kinshasa, and
that the Sudan stepped up its training of FAC troops and
airlifted them to different locations in the DRC. Once again, the evidence
offered to the Court as to the delivery of the weapons is the undated,
unsigned, internal Ugandan military intelligence report. This was
accompanied by a mere political assertion of Sudanese backing for troops
launching attacks on Uganda from the DRC. The evidentiary situation is
exactly the same as regards the alleged agreement by President Kabila with
the Sudanese Vice-President for joint military measures against Uganda. The
same intelligence report, defective as evidence that the Court can rely on,
is the sole source for the claims regarding the Sudanese bombing with an
Antonov aircraft of UPDF positions in Bunia on 26 August 1998; the arrival
of the Sudanese brigade in Gbadolite shortly thereafter; the deployment of
Sudanese troops, along with those of the DRC, on Uganda�s border on 14
September; and the pledges made on 18 September for the deployment of more
Sudanese troops.
129. It was said by Uganda that the DRC had effectively admitted the threat
to Uganda�s security posed by the Sudan, following the claimed series of
meetings between President Kabila and Sudanese officials in May, August and
September 1998. In support of these claims Uganda referred the Court to a
1999 ICG report, �How Kabila lost his way�; although not provided in the
annexes, this report was in the public domain and the Court has ascertained
its terms. Reliance is
also placed on a political statement by the Ugandan High Command. The Court
observes that this does not constitute reliable evidence and in any event it
speaks only of the reason for the mid-September deployment of troops. The
Court has also found that it cannot rely as persuasive evidence on a further
series of documents said to support these various claims relating to the
Sudan, all being internal political documents. The Court has examined the
notarized affidavit of 2002 of the Ugandan Ambassador to the DRC, which
refers to documents that allegedly were at the Ugandan Embassy in Kinshasa,
showing that �the Sudanese government was supplying ADF
rebels�. While a notarized affidavit is entitled to a certain respect, the
Court must observe that it is provided by a party in the case and provides
at best indirect �information� that is unverified
130. The Court observes that it has not been presented with evidence that
can safely be relied on in a court of law to prove that there was an
agreement between the DRC and the Sudan to participate in or support
military action against Uganda; or that any action by the Sudan (of itself
factually uncertain) was of such a character as to justify Uganda�s claim
that it was acting in self-defence.
131. The Court has also examined, in the context of ascertaining whether
Uganda could have been said to have acted in self-defence, the evidence for
Uganda�s claims that from May 1998 onwards the frequency, intensity and
destructiveness of cross-border attacks by the ADF �increased
significantly�, and that this was due to support from the DRC and from the
Sudan.
132. The Court is convinced that the evidence does show a series of attacks
occurring within the relevant time-frame, namely: an attack on Kichwamba
Technical School of 8 June 1998, in which 33 students were killed and 106
abducted; an attack near Kichwamba, in which five were killed; an attack on
Benyangule village on 26 June, in which 11 persons were killed or wounded;
the abduction of 19 seminarians at Kiburara on 5 July; an attack on Kasese
town on 1 August, in which three persons were killed. A sixth attack was
claimed at the oral hearings to have occurred
at Kijarumba, with 33 fatalities. The Court has not been able to ascertain
the facts as to this latter
incident.
133. The DRC does not deny that a number of attacks took place, but its
position is that the ADF alone was responsible for them. The documents
relied on by Uganda for its entitlement to use force in self-defence against
the DRC include a report of the interrogation of a captured ADF rebel, who
admits participating in the Kichwamba attack and refers to an �intention� to
obtain logistical support and sanctuary from the Congolese Government; this
report is not signed by the person making the statement, nor does it
implicate the DRC. Uganda also relies on a document entitled �Chronological
Illustration of Acts of Destabilisation by Sudan and Congo Based
Dissidents�, which is a Ugandan military document. Further, some articles in
newspapers relied on by Uganda in fact blame only the ADF for the attacks. A
very few do mention the Sudan. Only some internal documents, namely unsigned
witness statements, make any reference to Congolese involvement in these
acts.
134. The Court observes that this is also the case as regards the documents
said to show that President Kabila provided covert support to the ADF. These
may all be described as internal documents, often with no authenticating
features, and containing unsigned, unauthenticated and sometimes illegible
witness statements. These do not have the quality or character to satisfy
the Court as to the matters claimed.
135. In oral pleadings Uganda again referred to these �stepped up attacks�.
Reference was made to an ICG report of August 1998, �North Kivu, into the
Quagmire�. Although not provided in the annexes, this report was in the
public domain and the Court has ascertained its terms. It speaks of the ADF
as being financed by Iran and the Sudan. It further states that the ADF is
�[e]xploiting the incapacity of the Congolese Armed Forces� in controlling
areas of North Kivu with neighbour Uganda. This independent report does seem
to suggest some Sudanese support for the ADF�s activities. It also implies
that this was not a matter of Congolese policy, but rather a reflection of
its inability to control events along its border.
136. Uganda relies on certain documents annexed by the DRC to its Reply.
However, the Court does not find this evidence weighty and convincing. It
consists of a bundle of news reports of variable reliability, which go no
further than to say that unconfirmed reports had been received that the
Sudan was flying military supplies to Juba and Dungu. The Court has
therefore not found probative such media reports as the IRIN update for 12
to 14 September 1998, stating that Hutu rebels were being trained in
southern Sudan, and the IRIN update for 16 September 1998, stating that
�rebels claim Sudan is supporting Kabila at Kindu�. Neither has the Court
relied on the (unreferenced and unsourced) claim that President Kabila made
a secret visit to Khartoum on
25 August 1998 nor on the extract from Mr. Bemba�s book Le choix de la
liberté stating that 108 Sudanese soldiers were in the DRC, under the
command of the Congolese army, to defend the area around Gbadolite.
137. Nor has the Court been able to satisfy itself as to certain internal
military intelligence documents, belatedly offered, which lack explanations
as to how the information was obtained (e.g. Revelations of Commander Junju
Juma (former commanding officer in the ADF) of 17 May 2000, undated
Revelations by Issa Twatera (former commanding officer in the ADF)).
138. A further �fact� relied on by Uganda in this case as entitling it to
act in self-defence is that the DRC incorporated anti-Ugandan rebel groups
and Interahamwe militia into the FAC. The Court will examine the evidence
and apply the law to its findings.
139. In its Counter-Memorial, Uganda claimed that President Kabila had
incorporated into his army thousands of ex-FAR and Interahamwe génocidaires
in May 1998. A United States State Department statement in October 1998
condemned the DRC�s recruitment and training of former
perpetrators of the Rwandan genocide, thus giving some credence to the
reports internal to Uganda that were put before the Court, even though these
lacked signatures or particulars of sources relied on. But this claim, even
if true, seems to have relevance for Rwanda rather than Uganda.
140. Uganda in its oral pleadings repeated the claims of incorporation of
former Rwandan soldiers and Interahamwe into special units of the Congolese
army. No sources were cited, nor was it explained to the Court how this
might give rise to a right of self-defence on the part of Uganda.
141. In the light of this assessment of all the relevant evidence, the Court
is now in a position to determine whether the use of force by Uganda within
the territory of the DRC could be characterized as self-defence.
142. Article 51 of the United Nations Charter provides:
�Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security. Measures taken by
Members in the exercise of this right of self-defence shall be immediately
reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present
Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security.�
143. The Court recalls that Uganda has insisted in this case that operation
�Safe Haven� was not a use of force against an anticipated attack. As was
the case also in the Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America) case,�reliance is placed
by the Parties only on the right of self-defence in the case of an armed
attack which has already occurred, and the issue of the lawfulness of a
response to the imminent threat of armed attack has not been raised� (I.C.J.
Reports 1986, p. 103, para. 194). The Court there found that �[a]ccordingly
[it] expresses no view on that issue�. So it is in the present case. The
Court feels constrained, however, to observe that the wording of the Ugandan
High Command document on the position regarding the presence of the UPDF in
the DRC makes no reference whatever to armed attacks that have already
occurred against Uganda at the hands of the DRC (or indeed by
persons for whose action the DRC is claimed to be responsible). Rather, the
position of the High
Command is that it is necessary �to secure Uganda�s legitimate security
interests�. The specified
security needs are essentially preventative - to ensure that the political
vacuum does not adversely affect Uganda, to prevent attacks from �genocidal
elements�, to be in a position to safeguard Uganda from irresponsible
threats of invasion, to �deny the Sudan the opportunity to use the territory
of the DRC to destabilize Uganda�. Only one of the five listed objectives
refers to a response to acts that had already taken place - the
neutralization of �Uganda dissident groups
which have been receiving assistance from the Government of the DRC and the
Sudan�.
144. While relying heavily on this document, Uganda nonetheless insisted to
the Court that after 11 September 1998 the UPDF was acting in self-defence
in response to attacks that had occurred. The Court has already found that
the military operations of August in Beni, Bunia and Watsa, and of 1
September at Kisangani, cannot be classified as coming within the consent of
the DRC, and their legality, too, must stand or fall by reference to
self-defence as stated in Article 51 of the Charter.
145. The Court would first observe that in August and early September 1998
Uganda did not report to the Security Council events that it had regarded as
requiring it to act in self-defence.
146. It is further to be noted that, while Uganda claimed to have acted in
self-defence, it did not ever claim that it had been subjected to an armed
attack by the armed forces of the DRC. The �armed attacks� to which
reference was made came rather from the ADF. The Court has found above
(paragraphs 131-135) that there is no satisfactory proof of the involvement
in these attacks, direct or indirect, of the Government of the DRC. The
attacks did not emanate from armed bands or irregulars sent by the DRC or on
behalf of the DRC, within the sense of Article 3 (g) of General Assembly
resolution 3314 (XXIX) on the definition of aggression, adopted on 14
December 1974. The Court is of the view that, on the evidence before it,
even if this series of deplorable attacks could be regarded as cumulative in
character, they still remained non-attributable to the DRC.
147. For all these reasons, the Court finds that the legal and factual
circumstances for the exercise of a right of self-defence by Uganda against
the DRC were not present. Accordingly, the
Court has no need to respond to the contentions of the Parties as to whether
and under what conditions contemporary international law provides for a
right of self-defence against large-scale
attacks by irregular forces. Equally, since the preconditions for the
exercise of self-defence do not exist in the circumstances of the present
case, the Court has no need to enquire whether such an entitlement to
self-defence was in fact exercised in circumstances of necessity and in a
manner that was proportionate. The Court cannot fail to observe, however,
that the taking of airports and towns many hundreds of kilometres from
Uganda�s border would not seem proportionate to the series of transborder
attacks it claimed had given rise to the right of self-defence, nor to be
necessary to that end.
**
FINDINGS OF LAW ON THE PROHIBITION AGAINST THE USE OF FORCE
148. The prohibition against the use of force is a cornerstone of the United
Nations Charter. Article 2, paragraph 4, of the Charter requires that:
�All Members shall refrain in their international relations from the threat
or use of force against the territorial integrity or political independence
of any state, or in any other manner inconsistent with the Purposes of the
United Nations.�
Article 51 of the Charter may justify a use of force in self-defence only
within the strict confines
there laid down. It does not allow the use of force by a State to protect
perceived security interests beyond these parameters. Other means are
available to a concerned State, including, in particular, recourse to the
Security Council.
149. The Court has found that, from 7 August 1998 onwards, Uganda engaged in
the use of force for purposes and in locations for which it had no consent
whatever. The Court has also found that the events attested to by Uganda did
not justify recourse to the use of force in self-defence.
150. The long series of resolutions passed by the Security Council (1234
(1999), 1258 (1999), 1273 (1999), 1279 (1999), 1291 (2000), 1304 (2000),
1316 (2000), 1323 (2000), 1332 (2000), 1341 (2001), 1355 (2001), 1376
(2001), 1399 (2002), 1417 (2002), 1445 (2002), 1457 (2003), 1468 (2003),
1484 (2003), 1489 (2003), 1493 (2003), 1499 (2003), 1501 (2003), 1522
(2004), 1533 (2004), 1552 (2004), 1555 (2004), 1565 (2004), 1592 (2005),
1596 (2005), 1616 (2005) and 1621 (2005)) and the need for the United
Nations to deploy MONUC, as well as the prolonged efforts by the United
Nations to restore peace in the region and full sovereignty to the DRC over
its territory, testify to the magnitude of the military events and the
attendant suffering. The same may be said of the need to appoint a Special
Rapporteur on the situation of human rights, a Special Envoy of the
Secretary-General for that region, and the establishment of a panel (later
reconstituted) to report on certain of the categories of facts relating to
natural resources.
151. The Court recalls that on 9 April 1999 the Security Council determined
the conflict to constitute a threat to peace, security and stability in the
region. In demanding an end to hostilities
and a political solution to the conflict (which call was to lead to the
Lusaka Agreement of 10 July 1999), the Security Council deplored the
continued fighting and presence of foreign forces in the DRC and called for
the States concerned �to bring to an end the presence of these uninvited
forces� (United Nations doc. S/RES/1234, 9 April 1999).
152. The United Nations has throughout this long series of carefully
balanced resolutions and detailed reports recognized that all States in the
region must bear their responsibility for finding a solution that would
bring peace and stability. The Court notes, however, that this widespread
responsibility of the States of the region cannot excuse the unlawful
military action of Uganda.
153. The evidence has shown that the UPDF traversed vast areas of the DRC,
violating the sovereignty of that country. It engaged in military operations
in a multitude of locations, including Bunia, Kisangani, Gbadolite and
Ituri, and many others. These were grave violations of Article 2, paragraph
4, of the Charter.
154. The Court notes that the Security Council, on 16 June 2000, expressed
�outrage at renewed fighting between Ugandan and Rwandan forces in
Kisangani�, and condemned it as a �violation of the sovereignty and
territorial integrity of the Democratic Republic of the Congo� (United
Nations doc. S/RES/1304 (2000)).
155. The Court further observes that Uganda - as is clear from the evidence
given by General Kazini and General Kavuma to the Porter Commission (see
above, paragraph 114) - decided in early August 1998 to launch an offensive
together with various factions which sought to overthrow the Government of
the DRC. The DRC has in particular claimed that, from September 1998
onwards, Uganda both created and controlled the MLC rebel group led by Mr.
Bemba.
156. The DRC also points to the book written by Mr. Bemba (see paragraph 69
above) to support this contention, as well as to the fact that in the Harare
Disengagement Plan the MLC and UPDF are treated as a single unit.
157. For its part, Uganda acknowledges that it assisted the MLC during
fighting between late September 1998 and July 1999, while insisting that its
assistance to Mr. Bemba �was always limited and heavily conditioned�. Uganda
has explained that it gave �just enough� military support to the MLC to help
Uganda achieve its objectives of driving out the Sudanese and Chadian troops
from the DRC, and of taking over the airfields between Gbadolite and the
Ugandan border; Uganda asserts that it did not go beyond this.
158. The Court observes that the pages cited by the DRC in Mr. Bemba�s book
do not in fact support the claim of �the creation� of the MLC by Uganda, and
cover the later period of March-July 1999. The Court has noted the
description in Mr. Bemba�s book of the training of his men by Ugandan
military instructors and finds that this accords with statements he made at
that time, as recorded in the ICG report of 20 August 1999. The Court has
equally noted Mr. Bemba�s insistence, in November 1999, that, while he was
receiving support, it was he who was in control of the military venture and
not Uganda. The Court is equally of the view that the Harare Disengagement
Plan merely sought to identify locations of the various parties, without
passing on their relationships to each other.
159. The Court has not relied on various other items offered as evidence on
this point by the DRC, finding them, uncorroborated, based on second-hand
reports, or not in fact saying what they are alleged to say by the DRC, or
even in some cases partisan. The Court has for such reasons set aside the
ICG report of 17 November, the HRW Report of March 2001, passages from the
Secretary-General�s report on MONUC of 4 September 2000 (where reliance on
second-hand reports is acknowledged); articles in the IRIN bulletin and
Jeune Afrique; and the statement of a deserter who was co-operating with the
Congolese military commission in preparing a statement for purposes of the
present proceedings.
160. The Court concludes that there is no credible evidence to suggest that
Uganda created the MLC. Uganda has acknowledged giving training and military
support and there is evidence to that effect. The Court has not received
probative evidence that Uganda controlled, or could control, the manner in
which Mr. Bemba put such assistance to use. In the view of the Court, the
conduct of the MLC was not that of �an organ� of Uganda (Article 4,
International Law Commission Draft Articles on Responsibility of States for
internationally wrongful acts, 2001), nor that of an entity exercising
elements of governmental authority on its behalf (Article 5). The Court has
considered whether the MLC�s conduct was �on the instructions of, or under
the direction or control of� Uganda (Article 8) and finds that there is no
probative evidence by reference to which it has been persuaded that this was
the case. Accordingly, no issue arises in the present case as to whether the
requisite tests are met for sufficiency of control of paramilitaries (see
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 62-65,
paras. 109-115).
161. The Court would comment, however, that, even if the evidence does not
suggest that the MLC�s conduct is attributable to Uganda, the training and
military support given by Uganda to the ALC, the military wing of the MLC,
violates certain obligations of international law.
162. Thus the Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation Among States in accordance with the
Charter of the United Nations (hereinafter �the Declaration on Friendly
Relations�) provides that:
�Every State has the duty to refrain from organizing, instigating, assisting
or participating in acts of civil strife or terrorist acts in another State
or acquiescing in organized activities within its territory directed towards
the commission of such acts, when the acts referred to in the present
paragraph involve a threat or use of force.� (General Assembly resolution
2625 (XXV), 24 October 1970.)
The Declaration further provides that,
�no State shall organize, 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� (ibid.).
These provisions are declaratory of customary international law.
163. The Court considers that the obligations arising under the principles
of non-use of force and non-intervention were violated by Uganda even if the
objectives of Uganda were not to overthrow President Kabila, and were
directed to securing towns and airports for reason of its perceived security
needs, and in support of the parallel activity of those engaged in civil
war.
164. In the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America) case, the Court
made it clear that the principle of non-intervention prohibits a State �to
intervene, directly or indirectly, with or without armed force, in support
of an internal opposition in another State� (I.C.J. Reports 1986, p. 108,
para. 206). The Court notes that in the present case it has been presented
with probative evidence as to military intervention. The Court further
affirms that acts which breach the principle of non-intervention �will also,
if they directly or indirectly involve the use of force, constitute a breach
of the principle of non-use of force in international relations�(ibid., pp.
109-110, para. 209).
165. In relation to the first of the DRC�s final submissions, the Court
accordingly concludes that Uganda has violated the sovereignty and also the
territorial integrity of the DRC. Uganda�s actions equally constituted an
interference in the internal affairs of the DRC and in the civil war there
raging. The unlawful military intervention by Uganda was of such a magnitude
and duration that the Court considers it to be a grave violation of the
prohibition on the use of force expressed in Article 2, paragraph 4, of the
Charter.
***
166. Before turning to the second and third submissions of the DRC, dealing
with alleged violations by Uganda of its obligations under international
human rights law and international
humanitarian law and the illegal exploitation of the natural resources of
the DRC, it is essential for the Court to consider the question as to
whether or not Uganda was an occupying Power in the parts of Congolese
territory where its troops were present at the relevant time.
**
THE ISSUE OF BELLIGERENT OCCUPATION
167. The DRC asserts that the border regions of eastern Congo were attacked
by Ugandan forces between 7 and 8 August 1998, and that more areas fell
under the control of Ugandan troops over the following months with the
advance of the UPDF into Congolese territory. It further points out that
�the territories occupied by Uganda have varied in size as the conflict has
developed�: the area of occupation initially covered Orientale province and
part of North Kivu province; in the course of 1999 it increased to cover a
major part of Equateur province. The DRC specifies that the territories
occupied extended from Bunia and Beni, close to the eastern border, to
Bururu and Mobenzene, in the far north-western part of the DRC; and that
�the southern boundary of the
occupied area [ran] north of the towns of Mbandaka westwards, then
[extended] east to Kinsangani, rejoining the Ugandan border between Goma and
Butembo�. According to the DRC, the occupation of its territory ended with
the withdrawal of the Ugandan army on 2 June 2003.
168. The DRC contends that �the UPDF set up an occupation zone, which it
administered both directly and indirectly�, in the latter case by way of the
creation of and active support for various Congolese rebel factions. As an
example of such administration, the DRC refers to the creation of a new
province within its territory. In June 1999, the Ugandan authorities, in
addition to the existing ten provinces, created an 11th province in the
north-east of the DRC, in the vicinity of the Ugandan frontier. The
�Kibali-Ituri� province thus created was the result of merging the districts
of Ituri and Haut-Uélé, detached from Orientale province. On 18 June 1999
General Kazini, commander of the Ugandan forces in the DRC, �appointed Ms
Adèle Lotsove, previously Deputy Governor of Orientale Province, to govern
this new province�. The DRC further asserts that acts of administration by
Uganda of this province continued until the withdrawal of Ugandan troops. In
support of this contention, the DRC states that Colonel Muzoora, of the
UPDF, exercised de facto the duties of governor of the province between
January and May 2001, and that �at least two of the five governors who
succeeded Ms Lotsove up until 2003 were relieved of their duties by the
Ugandan military authorities, sometimes under threat of force�. The DRC
claims that the Ugandan authorities were directly involved �in the political
life of the occupied regions� and, citing the Ugandan daily newspaper New
Vision, that �Uganda has even gone so far as to supervise local elections�.
The DRC also refers to the Sixth report of the Secretary-General on MONUC,
which describes the situation in Bunia (capital of Ituri district) in the
following terms: �[s]ince 22 January, MONUC military observers in Bunia have
reported the situation in the town to be tense but with UPDF in effective
control�.
169. Finally, according to the DRC, the fact that Ugandan troops were not
present in every location in the vast territory of the north and east of the
DRC �in no way prevents Uganda from being considered an occupying power in
the localities or areas which were controlled by its armed forces�. The DRC
claims that the notion of occupation in international law, as reflected in
Article 42 of the Regulations Respecting the Laws and Customs of War on Land
annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter �the
Hague Regulations of 1907�), is closely tied to the control exercised by the
troops of the State operating on parts, extensive or not, of the territory
of the occupied State. Thus, �rather than the omnipresence of the occupying
State�s armed forces, it is that State�s ability to assert its authority
which the Hague Regulations look to as the criterion for defining the notion
of occupying State�.
*
170. For its part, Uganda denies that it was an occupying Power in the areas
where UPDF troops were present. It argues that, in view of the small number
of its troops in the territory of the DRC, i.e. fewer than 10,000 soldiers
�at the height of the deployment�, they could not have occupied vast
territories as claimed by the DRC. In particular, Uganda maintains that its
troops �were confined to the regions of eastern Congo adjacent to the Uganda
border and to designated strategic locations, especially airfields, from
which Uganda was vulnerable to attack by the DRC
and her allies�. Thus, there was �no zone of Ugandan military occupation and
there [was] no Ugandan military administration in place�. Uganda points out,
moreover, that it �ensured that its troops refrained from all interferences
in the local administration, which was run by the Congolese themselves�.
Uganda further notes that �it was the rebels of the Congo Liberation
Movement (MLC) and of the Congolese Rally for Democracy (RDC) which
controlled and administered these territories, exercising de facto
authority�.
171. As for the appointment of a governor of Ituri district, which Uganda
characterizes as �the only attempt at interference in this local
administration by a Ugandan officer�, Uganda states that this action was
�motivated by the desire to restore order in the region of Ituri in the
interests of the population�. Furthermore, Uganda emphasizes that this step
was �immediately opposed and disavowed by the Ugandan authorities� and that
the officer in question, General Kazini, was firmly reprimanded by his
superiors, who instituted disciplinary measures against him.
**
172. The Court observes that, under customary international law, as
reflected in Article 42 of the Hague Regulations of 1907, territory is
considered to be occupied when it is actually placed under the authority of
the hostile army, and the occupation extends only to the territory where
such authority has been established and can be exercised (see Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004, p. 167, paras. 78 and p.
172, para. 89).
173. In order to reach a conclusion as to whether a State, the military
forces of which are present on the territory of another State as a result of
an intervention, is an �occupying Power� in the meaning of the term as
understood in the jus in bello, the Court must examine whether there is
sufficient evidence to demonstrate that the said authority was in fact
established and exercised by
the intervening State in the areas in question. In the present case the
Court will need to satisfy itself that the Ugandan armed forces in the DRC
were not only stationed in particular locations but also that they had
substituted their own authority for that of the Congolese Government. In
that event, any justification given by Uganda for its occupation would be of
no relevance; nor would it be relevant whether or not Uganda had established
a structured military administration of the territory occupied.
174. The Court will now ascertain whether parts of the territory of the DRC
were placed under the authority of the Ugandan army in the sense of Article
42 of the Hague Regulations of 1907. In this regard, the Court first
observes that the territorial limits of any zone of occupation by Uganda in
the DRC cannot be determined by simply drawing a line connecting the
geographical locations where Ugandan troops were present, as has been done
on the sketch-map presented by the DRC (see paragraphs 55 and 73 above).
175. It is not disputed between the Parties that General Kazini, commander
of the Ugandan forces in the DRC, created the new �province of Kibali-Ituri�
in June 1999 and appointed Ms Adèle Lotsove as its Governor. Various sources
of evidence attest to this fact, in particular a letter from General Kazini
dated 18 June 1999, in which he appoints Ms Adèle Lotsove as �provisional
Governor� and gives suggestions with regard to questions of administration
of the new province. This is also supported by material from the Porter
Commission. The Court further notes that the Sixth report of the
Secretary-General on MONUC (S/2001/128 of 12 February 2001) states that,
according to MONUC military observers, the UPDF was in effective control in
Bunia (capital of Ituri district).
176. The Court considers that regardless of whether or not General Kazini,
commander of the Ugandan forces in the DRC, acted in violation of orders and
was punished as a result, his conduct is clear evidence of the fact that
Uganda established and exercised authority in Ituri as an occupying Power.
177. The Court observes that the DRC makes reference to �indirect
administration� through various Congolese rebel factions and to the
supervision by Ugandan officers over local elections in the territories
under UPDF control. However, the DRC does not provide any specific evidence
to show that authority was exercised by Ugandan armed forces in any areas
other than in Ituri district. The Court further notes that, although Uganda
recognized that as of 1 September 1998 it exercised �administrative control�
at Kisangani Airport, there is no evidence in the case file which could
allow the Court to characterize the presence of Ugandan troops stationed at
Kisangani Airport as occupation in the sense of Article 42 of the Hague
Regulations of 1907. Neither can the Court uphold the DRC�s contention that
Uganda was an occupying Power in areas outside Ituri controlled and
administered by Congolese rebel movements. As the Court has already
indicated, the evidence does not support the view that these groups were
�under the control� of Uganda (see paragraph 160 above).
178. The Court thus concludes that Uganda was the occupying Power in Ituri
at the relevant time. As such it was under an obligation, according to
Article 43 of the Hague Regulations of 1907, to take all the measures in its
power to restore, and ensure, as far as possible, public order and safety in
the occupied area, while respecting, unless absolutely prevented, the laws
in force in the DRC. This obligation comprised the duty to secure respect
for the applicable rules of international human rights law and international
humanitarian law, to protect the inhabitants of the
occupied territory against acts of violence, and not to tolerate such
violence by any third party.
179. The Court, having concluded that Uganda was an occupying Power in Ituri
at the relevant time, finds that Uganda�s responsibility is engaged both for
any acts of its military that violated its international obligations and for
any lack of vigilance in preventing violations of human rights and
international humanitarian law by other actors present in the occupied
territory, including rebel groups acting on their own account.
180. The Court notes that Uganda at all times has responsibility for all
actions and omissions of its own military forces in the territory of the DRC
in breach of its obligations under the rules of international human rights
law and international humanitarian law which are relevant and applicable in
the specific situation.
***
VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN
LAW: CONTENTIONS OF THE PARTIES
181. It is recalled (see paragraph 25 above) that in its second submission
the DRC requests the Court to adjudge and declare:
�2. That the Republic of Uganda, by committing acts of violence against
nationals of the Democratic Republic of the Congo, by killing and injuring
them or despoiling them of their property, by failing to take adequate
measures to prevent violations of human rights in the DRC by persons under
its jurisdiction or control, and/or failing to punish persons under its
jurisdiction or control having engaged in the above-mentioned acts, has
violated the following principles of conventional and customary law:
- the principle of conventional and customary law imposing an obligation to
respect, and ensure respect for, fundamental human rights, including in
times of armed conflict, in accordance with international humanitarian law;
- the principle of conventional and customary law imposing an obligation, at
all times, to make a distinction in an armed conflict between civilian and
military objectives;
- the right of Congolese nationals to enjoy the most basic rights, both
civil and political, as well as economic, social and cultural.�
182. The DRC cites various sources of evidence in support of its claims,
including the 2004 MONUC report on human rights violations in Ituri, reports
submitted by the Special Rapporteur of the United Nations Commission on
Human Rights, and testimony gathered on the ground by a number of Congolese
and international non-governmental organizations. The DRC argues that it has
�presented abundant evidence of violations of human rights attributable to
Uganda, based on reliable, varied and concordant sources�. In particular, it
notes that many of the grave accusations are the result of careful fieldwork
carried out by MONUC experts, and attested to by other independent sources.
183. The DRC claims that the Ugandan armed forces perpetrated wide-scale
massacres of civilians during their operations in the DRC, in particular in
the Ituri region, and resorted to acts of torture and other forms of
inhumane and degrading treatment. The DRC claims that soldiers of the UPDF
carried out acts of reprisal directed against the civilian inhabitants of
villages presumed to have harboured anti-Ugandan fighters. In the specific
context of the conflict in Ituri, the DRC argues that the findings of the
2004 MONUC report on human rights violations in Ituri clearly establish the
fact that the Ugandan armed forces participated in the mass killings of
civilians.
184. The DRC maintains that, in the areas occupied by the UPDF, Ugandan
soldiers plundered civilian property for their �personal profit� and engaged
in the deliberate destruction of villages, civilian dwellings and private
property. With regard to the clashes between Uganda and Rwanda in the city
of Kisangani in 1999 and 2000, the DRC refers, in particular, to Security
Council resolution 1304 (2000), in which the Council deplored, inter alia,
�the damage to property inflicted by the forces of Uganda and Rwanda on the
Congolese population�. The DRC also alleges that the property and resources
of the civilian populations in the eastern Congolese regions occupied by the
Ugandan army were destroyed on certain occasions by UPDF soldiers as part of
a �scorched earth� policy aimed at combating ADF rebels.
185. The DRC claims that several hundred Congolese children were forcibly
recruited by the UPDF and taken to Uganda for ideological and military
training in the year 2000. In particular, according to the DRC, many
children were abducted in August 2000 in the areas of Bunia, Beni and
Butembo and given military training at the Kyankwanzi camp in Uganda with a
view to incorporating them into the Ugandan armed forces. The DRC maintains
that the abducted children were only able to leave the Kyankwanzi training
camp for final repatriation to the DRC at the beginning of July 2001 after
persistent efforts by UNICEF and the United Nations to ensure their release.
186. The DRC contends that the Ugandan armed forces failed to protect the
civilian population in combat operations with other belligerents. Thus it
alleges that attacks were carried out by the UPDF without any distinction
being made between combatants and non-combatants. In this regard, the DRC
makes specific reference to fighting between Ugandan and Rwandan forces in
Kisangani in 1999 and 2000, causing widespread loss of life within the
civilian population and
great damage to the city�s infrastructure and housing. In support of its
claims, the DRC cites various reports of Congolese and international
non-governmental organizations and refers extensively to the June 2000 MONUC
Report and to the December 2000 report by the United Nations inter-agency
assessment mission, which went to Kisangani pursuant to Security Council
resolution 1304 (2000). The DRC notes that the latter report referred to
�systematic violations of international humanitarian law and indiscriminate
attacks on civilians� committed by Uganda and Rwanda as they fought each
other.
187. The DRC claims that Ugandan troops were involved in ethnic conflicts
between groups in the Congolese population, particularly between Hema and
Lendu in the Ituri region, resulting in thousands of civilian casualties.
According to the DRC, UPDF forces openly sided with the Hema ethnic group
because of �alleged ethnic links between its members and the Ugandan
population�. In one series of cases, the DRC alleges that Ugandan armed
forces provided direct military support to Congolese factions and joined
with them in perpetrating massacres of civilians. The DRC further claims
that Uganda not only supported one of the groups but also provided training
and equipment for other groups over time, thereby aggravating the local
conflicts.
188. The DRC also asserts that, on several occasions, Ugandan forces
passively witnessed atrocities committed by the members of local militias in
Ituri. In this connection, the DRC refers to various incidents attested to
by reports emanating from the United Nations and MONUC, and from Congolese
and international non-governmental organizations. In particular, the DRC
refers to a massacre of ethnic Lendu carried out by ethnic Hema militias in
Bunia on 19 January 2001. The DRC states that similar events occurred in
other localities.
189. The DRC charges that Uganda breached its obligation of vigilance
incumbent upon it as an occupying Power by failing to enforce respect for
human rights and international humanitarian law in the occupied regions, and
particularly in Ituri. The DRC argues that the need to ensure full
respect for fundamental rights in the territories occupied by the Ugandan
army was similarly emphasized by the United Nations Commission on Human
Rights.
190. The DRC argues that, by its actions, Uganda has violated provisions of
the Hague Regulations of 1907; the Fourth Geneva Convention relative to the
Protection of Civilian Persons in Time of War of 12 August 1949; the
International Covenant on Civil and Political Rights; the Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), of 8
June 1977; the African Charter on Human and Peoples� Rights; the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment; and the African Charter on the Rights and Welfare of the Child.
*
191. Uganda contends that the DRC has consistently failed to provide any
credible evidentiary basis to support its allegations of the involvement of
Ugandan troops in massacres, torture and ill-treatment of Congolese
civilians, supposed acts of plunder and scorched earth policy, destruction
of Congolese villages and civilian dwellings, and looting of private
property. In this regard, Uganda refers to each of the incidents alleged by
the DRC and argues that the documentation relied upon by the DRC to prove
its claims either fails to show that the incident occurred, or fails to show
any involvement of Ugandan troops. In more general terms, Uganda points to
the unreliability of the evidence adduced by the DRC, claiming that it does
not distinguish between the various armies operating in eastern Congo during
the relevant period. Uganda also maintains that the DRC relies on partisan
sources of information, such as the Association africaine des droits de
l�homme (ASADHO), which Uganda describes as a pro-Congolese non-governmental
organization. Uganda further asserts that the 2004 MONUC report on human
rights violations in Ituri, heavily relied on by the DRC to support its
various claims in connection with the conflict in Ituri, �is inappropriate
as a form of assistance in any assessment accompanied by judicial rigour�.
Uganda states, inter alia, that in its view, �MONUC did not have a mission
appropriate to investigations of a specifically legal character� and that
�both before and after deployment of the multinational forces in June 2003,
there were substantial problems of access to Ituri�.
192. Uganda contends that the DRC�s allegations regarding the forced
recruitment of child soldiers by Uganda are �framed only in general terms�
and lack �evidentiary support�. According to Uganda, the children �were
rescued� in the context of ethnic fighting in Bunia and a mutiny within the
ranks of the RCD-ML rebel group, and taken to the Kyankwanzi Leadership
Institute for care and counselling in 2001. Uganda states that the children
were subsequently repatriated under the auspices of UNICEF and the Red
Cross. In support of its claims, Uganda refers to the Fifth and Sixth
reports on MONUC of the Secretary-General of the United Nations. Uganda also
maintains that it received expressions of gratitude from UNICEF and from the
United Nations for its role in assisting the children in question.
193. Uganda reserves its position on the events in Kisangani in 2000 and, in
particular, on the admissibility of issues of responsibility relating to
these events (see paragraphs 197-198 below).
194. Uganda claims that the DRC�s assertion that Ugandan forces incited
ethnic conflicts among groups in the Congolese population is false and
furthermore is not supported by credible evidence.
195. Uganda argues that no evidence has been presented to establish that
Uganda had any interest in becoming involved in the civil strife in Ituri.
Uganda asserts that, from early 2001 until the final departure of its troops
in 2003, Uganda did what it could to promote and maintain a peaceful climate
in Ituri. Uganda believes that its troops were insufficient to control the
ethnic violence in that region, �and that only an international force under
United Nations auspices had any chance of doing so�.
**
ADMISSIBILITY OF CLAIMS IN RELATION TO EVENTS IN KISANGANI
196. Before considering the merits of the DRC�s allegations of violations by
Uganda of international human rights law and international humanitarian law,
the Court must first deal with a question raised by Uganda concerning the
admissibility of the DRC�s claims relating to Uganda�s responsibility for
the fighting between Ugandan and Rwandan troops in Kisangani in June 2000.
*
197. Uganda submits that
�the Court lacks competence to deal with the events in Kisangani in June
2000 in the absence of consent on the part of Rwanda, and, in the
alternative, even if competence exists, in order to safeguard the judicial
function the Court should not exercise that competence�.
Moreover, according to Uganda, the terms of the Court�s Order of 1 July 2000
indicating provisional measures were without prejudice to issues of fact and
imputability; neither did the Order prejudge the question of the
jurisdiction of the Court to deal with the merits of the case.
198. Concerning the events in Kisangani, Uganda maintains that Rwanda�s
legal interests form �the very subject-matter� of the decision which the DRC
is seeking, and that consequently a decision of the Court covering these
events would infringe the �indispensable third party� principle referred to
in the cases concerning Monetary Gold Removed from Rome in 1943 (Italy v.
France, United Kingdom and United States) (Judgment, I.C.J. Reports 1954, p.
19 and East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p.
90). According to Uganda, the circumstances in the present case produce the
same type of dilemma faced by the Court in those cases. In particular,
Uganda states that �[t]he culpability or otherwise of Uganda, as a
consequence of the conduct of its armed forces, can only be assessed on the
basis of appropriate legal standards if the conduct of the armed forces of
Rwanda is assessed at the same time�. Uganda further argues that, �[i]n the
absence of evidence as to the role of Rwanda, it is impossible for the Court
to know whether the justification of self-defence is available to Uganda or,
in respect of the quantum of damages, how the role of Rwanda is to be taken
into account�. Uganda contends that, �[i]f the conflict was provoked by
Rwanda, this would materially and directly affect the responsibility of
Uganda vis-à-vis the DRC�. Uganda also claims that the necessity to
safeguard the judicial function of the Court, as referred to in the case
concerning Northern Cameroons (Preliminary Objections, Judgment, I.C.J.
Reports 1963, pp. 33-34, 37, 38), would preclude the Court from exercising
any jurisdiction it might have in relation to the events that occurred in
Kisangani.
*
199. With reference to the objection raised by Uganda regarding the Court�s
jurisdiction to rule on the events in Kisangani in the absence of Rwanda
from the proceedings, the DRC asserts that �Rwanda�s absence from these
proceedings is totally irrelevant and cannot prevent the Court from ruling
on the question of Uganda�s responsibility�. According to the DRC,
�[t]he purpose of the DRC�s claim is simply to secure recognition of
Uganda�s sole responsibility for the use of force by its own armed forces in
Congolese territory . . . in and around Kisangani, as well as for the
serious violations of essential rules of international humanitarian law
committed on those occasions� (emphasis in original).
200. The DRC argues that the Court is competent to adjudicate on the events
in Kisangani �without having to consider the question of whether it should
be Rwanda or Uganda that is held responsible for initiating the hostilities
that led to the various clashes�. The DRC refers to the case concerning
Certain Phosphate Lands in Nauru (Nauru v. Australia) in support of its
contention that there is nothing to prevent the Court from �exercising its
jurisdiction with regard to a respondent State, even in the absence of other
States implicated in the Application�. The DRC argues that the Monetary Gold
and East Timor cases, relied on by Uganda to support its arguments, are
fundamentally different from the present case. According to the DRC, the
application which it filed against Uganda �is entirely autonomous and
independent� and does not bear on any separate proceedings instituted by the
DRC against other States. The DRC maintains that �[i]t is Uganda�s
responsibility which is the subject-matter of the Congolese claim, and there
is no other �indispensable party� whose legal interests would form �the very
subject-matter of the decision�, as in the Monetary Gold or East Timor
precedents�.
201. The DRC points out that the Court, in its Order of 1 July 2000
indicating provisional measures, �refused to accept Uganda�s reasoning and
agreed to indicate certain measures specifically relating to the events in
Kisangani despite the absence of Rwanda from the proceedings�.
202. In light of the above considerations, the DRC argues that Uganda�s
objection must be rejected.
**
203. The Court has had to examine questions of this kind on previous
occasions. In the case concerning Certain Phosphate Lands in Nauru (Nauru v.
Australia), the Court observed that it is not precluded from adjudicating
upon the claims submitted to it in a case in which a third State �has an
interest of a legal nature which may be affected by the decision in the
case�, provided that �the legal interests of the third State which may
possibly be affected do not form the very subject-matter of the decision
that is applied for�. The Court further noted that:
�In the present case, the interests of New Zealand and the United Kingdom do
not constitute the very subject-matter of the judgment to be rendered on the
merits of Nauru�s Application and the situation is in that respect different
from that with which the Court had to deal in the Monetary Gold case. In the
latter case, the determination of Albania�s responsibility was a
prerequisite for a decision to be taken on Italy�s claims. In the present
case, the determination of the responsibility of New Zealand or the United
Kingdom is not a prerequisite for the determination of the responsibility of
Australia, the only object of Nauru�s claim . . . In the Monetary Gold case
the link between, on the one hand, the necessary findings regarding,
Albania�s alleged responsibility and, on the other, the decision requested
of the Court regarding the allocation of the gold, was not purely temporal
but also logical . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
In the present case, a finding by the Court regarding the existence or the
content of the responsibility attributed to Australia by Nauru might well
have implications for the legal situation of the two other States concerned,
but no finding in respect of that legal situation will be needed as a basis
for the Court�s decision on Nauru�s claims against Australia. Accordingly
the Court cannot decline to exercise its jurisdiction.� (Certain Phosphate
Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment,
I.C.J. Reports 1992, pp. 261-262, para. 55.)
204. The Court considers that this jurisprudence is applicable in the
current proceedings. In the present case, the interests of Rwanda clearly do
not constitute �the very subject-matter� of the decision to be rendered by
the Court on the DRC�s claims against Uganda, nor is the determination of
Rwanda�s responsibility a prerequisite for such a decision. The fact that
some alleged violations of international human rights law and international
humanitarian law by Uganda occurred in the course of hostilities between
Uganda and Rwanda does not impinge on this finding. Thus it is not necessary
for Rwanda to be a party to this case for the Court to be able to determine
whether Uganda�s conduct was a violation of these rules of international
law.
**
VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL
HUMANITARIAN LAW: FINDINGS OF THE COURT
205. The Court will now examine the allegations by the DRC concerning
violations by Uganda of its obligations under international human rights law
and international humanitarian law during its military intervention in the
DRC. For these purposes, the Court will take into consideration evidence
contained in certain United Nations documents to the extent that they are of
probative value and are corroborated, if necessary, by other credible
sources. In order to rule on the DRC�s claim, it is not necessary for the
Court to make findings of fact with regard to each individual incident
alleged.
206. The Court first turns to the DRC�s claims that the Ugandan armed forces
caused loss of life to the civilian population, committed acts of torture
and other forms of inhumane treatment, and destroyed villages and dwellings
of civilians. The Court observes that the report of the Special Rapporteur
of the Commission on Human Rights of 18 January 2000 (E/CN/4/2000/42, para.
112) refers to massacres carried out by Ugandan troops in Beni on 14
November 1999. The Secretary-General in his Third report on MONUC concluded
that Rwandan and Ugandan armed forces �should be held accountable for the
loss of life and the property damage they inflicted on the civilian
population of Kisangani� (doc. S/2000/566 of 12 June 2000, para. 79).
Security Council resolution 1304 (2000) of 16 June 2000 deplored �the loss
of civilian lives, the threat to the civilian population and the damage to
property inflicted by the forces of Uganda and Rwanda on the Congolese
population�. Several incidents of atrocities committed by Ugandan troops
against the civilian population, including torture and killings, are
referred to in the report of the Special Rapporteur of the Commission on
Human Rights of 1 February 2001 (E/CN/4/2001/40, paras. 112, 148-151).
MONUC�s special report on the events in Ituri, January 2002-December 2003
(doc. S/2004/573 of 16 July 2004, paras. 19, 42-43, 62) contains much
evidence of direct involvement by UPDF troops, in the context of the
Hema-Lendu ethnic conflict in Ituri, in the killings of civilians and the
destruction of their houses. In addition to particular incidents, it is
stated that �[h]undreds of localities were destroyed by UPDF and the Hema
South militias� (para. 21); �UPDF also carried out widespread bombing and
destruction of hundreds of villages from 2000 to 2002� (para. 27).
207. The Court therefore finds the coincidence of reports from credible
sources sufficient to convince it that massive human rights violations and
grave breaches of international humanitarian law were committed by the UPDF
on the territory of the DRC.
208. The Court further finds that there is sufficient evidence of a reliable
quality to support the DRC�s allegation that the UPDF failed to protect the
civilian population and to distinguish between combatants and non-combatants
in the course of fighting against other troops, especially
the FAR. According to the report of the inter-agency assessment mission to
Kisangani (established pursuant to paragraph 14 of Security Council
resolution 1304 (2000) (doc. S/2000/1153 of 4 December 2000, paras. 15-16)),
the armed conflict between Ugandan and Rwandan forces in Kisangani led to
�fighting spreading into residential areas and indiscriminate shelling
occurring for 6 days . . .
Over 760 civilians were killed, and an estimated 1,700 wounded. More than
4,000 houses were partially damaged, destroyed or made uninhabitable.
Sixty-nine schools were shelled, and other public buildings were badly
damaged. Medical facilities and the cathedral were also damaged during the
shelling, and 65,000 residents were forced to flee the fighting and seek
refuge in nearby forests.�
MONUC�s special report on the events in Ituri, January 2002-December 2003
(doc. S/2004/573 of 16 July 2004, para. 73) states that on 6 and 7 March
2003, �during and after fighting between UPC [Union des patriotes congolais]
and UPDF in Bunia, several civilians were killed, houses and shops were
looted and civilians were wounded by gunshots . . . Stray bullets reportedly
killed several civilians; others had their houses shelled.� (Para. 73.) In
this context, the Court notes that indiscriminate shelling is in itself a
grave violation of humanitarian law.
209. The Court considers that there is also persuasive evidence that the
UPDF incited ethnic conflicts and took no action to prevent such conflicts
in Ituri district. The reports of the Special Rapporteur of the Commission
on Human Rights (doc. A/55/403 of 20 September 2000, para. 26
and E/CN/4/2001/40 of 1 February 2001, para. 31) state that the Ugandan
presence in Ituri caused a conflict between the Hema (of Ugandan origin) and
the Lendu. According to these reports, land was seized from the Lendu by the
Hema with the encouragement and military support of Ugandan soldiers. The
reports also state that the confrontations in August 2000 resulted in some
10,000 deaths and the displacement of some 50,000 people, and that since the
beginning of the conflict the UPDF had failed to take action to put an end
to the violence. The Sixth report of the Secretary-General on MONUC (doc.
S/2001/128 of 12 February 2001, para. 56) stated that �UPDF troops stood by
during the killings and failed to protect the civilians�. It is also
indicated in MONUC�s special report on the events in Ituri, January
2002-December 2003 (doc. S/2004/573 of 16 July 2004, para. 6), that �Ugandan
army commanders already present in Ituri, instead of trying to calm the
situation, preferred to benefit from the situation and support alternately
one side or the other according to their political and financial interests�.
The above reports are consistent in the presentation of facts, support each
other and are corroborated by other credible sources, such as the HRW Report
�Ituri: Covered in Blood. Ethnically Targeted Violence in Northeastern DR
Congo�, July 2003 (available at https://hrw.org/reports/2003/ituri0703/).
210. The Court finds that there is convincing evidence of the training in
UPDF training camps of child soldiers and of the UPDF�s failure to prevent
the recruitment of child soldiers in areas under its control. The Fifth
report of the Secretary-General on MONUC (doc. S/2000/1156 of 6 December
2000, para. 75) refers to the confirmed �cross-border deportation of
recruited Congolese children from the Bunia, Beni and Butembo region to
Uganda�. The Eleventh report of the Secretary-General on MONUC (doc.
S/2002/621 of 5 June 2002, para. 47) points out that the local UPDF
authorities in and around Bunia in Ituri district �have failed to prevent
the fresh recruitment or re-recruitment of children� as child soldiers.
MONUC�s special report on the events in Ituri, January 2002-December 2003
(doc. S/2004/573 of 16 July 2004, para. 148) refers to several incidents
where Congolese children were transferred to UPDF training camps for
military training.
211. Having examined the case file, the Court considers that it has credible
evidence sufficient to conclude that the UPDF troops committed acts of
killing, torture and other forms of inhumane treatment of the civilian
population, destroyed villages and civilian buildings, failed to distinguish
between civilian and military targets and to protect the civilian population
in fighting
with other combatants, incited ethnic conflict and took no steps to put an
end to such conflicts, was involved in the training of child soldiers, and
did not take measures to ensure respect for human rights and international
humanitarian law in the occupied territories.
212. With regard to the claim by the DRC that Uganda carried out a
deliberate policy of terror, confirmed in its view by the almost total
impunity of the soldiers and officers responsible for the alleged atrocities
committed on the territory of the DRC, the Court, in the absence of specific
evidence supporting this claim, does not consider that this allegation has
been proven. The Court,
however, wishes to stress that the civil war and foreign military
intervention in the DRC created a general atmosphere of terror pervading the
lives of the Congolese people.
*
213. The Court turns now to the question as to whether acts and omissions of
the UPDF and its officers and soldiers are attributable to Uganda. The
conduct of the UPDF as a whole is clearly attributable to Uganda, being the
conduct of a State organ. According to a well-established rule of
international law, which is of customary character, �the conduct of any
organ of a State must be regarded as an act of that State� (Difference
Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), p.
87, para. 62). The conduct of individual soldiers and officers of the UPDF
is to be considered as the conduct of a State organ. In the Court�s view, by
virtue of the military status and function of Ugandan soldiers in the DRC,
their conduct is attributable to Uganda. The contention that the persons
concerned did not act in the capacity of persons exercising governmental
authority in the particular circumstances, is therefore without merit.
214. It is furthermore irrelevant for the attribution of their conduct to
Uganda whether the UPDF personnel acted contrary to the instructions given
or exceeded their authority. According to a well-established rule of a
customary nature, as reflected in Article 3 of the Fourth Hague Convention
respecting the Laws and Customs of War on Land of 1907 as well as in Article
91 of
Protocol I additional to the Geneva Conventions of 1949, a party to an armed
conflict shall be responsible for all acts by persons forming part of its
armed forces.
*
215. The Court, having established that the conduct of the UPDF and of the
officers and soldiers of the UPDF is attributable to Uganda, must now
examine whether this conduct constitutes a breach of Uganda�s international
obligations. In this regard, the Court needs to determine the rules and
principles of international human rights law and international humanitarian
law which are relevant for this purpose.
216. The Court first recalls that it had occasion to address the issues of
the relationship between international humanitarian law and international
human rights law and of the applicability of international human rights law
instruments outside national territory in its Advisory Opinion of 9 July
2004 on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory. In this Advisory Opinion the Court found that
�the protection offered by human rights conventions does not cease in case
of armed conflict, save through the effect of provisions for derogation of
the kind to be found in Article 4 of the International Covenant on Civil and
Political Rights. As regards the relationship between international
humanitarian law and human rights law, there are thus three possible
situations: some rights may be exclusively matters of international
humanitarian law; others may be exclusively matters of human rights law; yet
others may be matters of both these branches of international law.� (I.C.J.
Reports 2004, p. 178, para. 106.)
It thus concluded that both branches of international law, namely
international human rights law
and international humanitarian law, would have to be taken into
consideration. The Court further
concluded that international human rights instruments are applicable �in
respect of acts done by a
State in the exercise of its jurisdiction outside its own territory�,
particularly in occupied territories (ibid., pp. 178-181, paras. 107-113).
217. The Court considers that the following instruments in the fields of
international humanitarian law and international human rights law are
applicable, as relevant, in the present case:
- Regulations Respecting the Laws and Customs of War on Land annexed to the
Fourth Hague Convention of 18 October 1907. Neither the DRC nor Uganda are
parties to the Convention. However, the Court reiterates that �the
provisions of the Hague Regulations have become part of customary law�
(Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 172, para.
89) and as such are binding on both Parties;
- Fourth Geneva Convention relative to the Protection of Civilian Persons in
Time of War of 12 August 1949. The DRC�s (at the time Republic of the Congo
(Léopoldville)) notification of succession dated 20 February 1961 was
deposited on 24 February 1961, with retroactive effect as from 30 June 1960,
the date on which the DRC became independent; Uganda acceded on 18 May 1964;
- International Covenant on Civil and Political Rights of 19 December 1966.
The DRC (at the time Republic of Zaire) acceded to the Covenant on 1
November 1976; Uganda acceded on 21 June 1995;
- Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of International Armed Conflicts
(Protocol I), 8 June 1977. The DRC (at the time Republic of Zaire) acceded
to the Protocol on 3 June 1982; Uganda acceded on 13 March 1991;
- African Charter on Human and Peoples� Rights of 27 June 1981. The DRC (at
the time Republic of Zaire) acceded to the Charter on 20 July 1987; Uganda
acceded on 10 May 1986;
- Convention on the Rights of the Child of 20 November 1989. The DRC (at the
time Republic of Zaire) ratified the Convention on 27 September 1990 and
Uganda on 17 August 1990;
- Optional Protocol to the Convention on the Rights of the Child on the
Involvement of Children in Armed Conflict of 25 May 2000. The Protocol
entered into force on 12 February 2002. The DRC ratified the Protocol on 11
November 2001; Uganda acceded on 6 May 2002.
218. The Court moreover emphasizes that, under common Article 2 of the four
Geneva Conventions of 12 August 1949,
�[i]n addition to the provisions which shall be implemented in peace time,
the present Convention shall apply to all cases of declared war or of any
other armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one of
them.
The Convention shall also apply to all cases of partial or total occupation
of the territory of a High Contracting Party, even if the said occupation
meets with no armed resistance.�
219. In view of the foregoing, the Court finds that the acts committed by
the UPDF and officers and soldiers of the UPDF (see paragraphs 206-211
above) are in clear violation of the obligations under the Hague Regulations
of 1907, Articles 25, 27 and 28, as well as Articles 43, 46 and 47 with
regard to obligations of an occupying Power. These obligations are binding
on the Parties as customary international law. Uganda also violated the
following provisions of the international humanitarian law and international
human rights law instruments, to which both Uganda and the DRC are parties:
- Fourth Geneva Convention, Articles 27 and 32 as well as Article 53 with
regard to obligations
of an occupying Power;
- International Covenant on Civil and Political Rights, Articles 6,
paragraph 1, and 7;
- First Protocol Additional to the Geneva Conventions of 12 August 1949,
Articles 48, 51, 52, 57, 58 and 75, paragraphs 1 and 2;
- African Charter on Human and Peoples� Rights, Articles 4 and 5;
- Convention on the Rights of the Child, Article 38, paragraphs 2 and 3;
- Optional Protocol to the Convention on the Rights of the Child, Articles
1, 2, 3, paragraph 3, 4,
5 and 6.
220. The Court thus concludes that Uganda is internationally responsible for
violations of international human rights law and international humanitarian
law committed by the UPDF and by its members in the territory of the DRC and
for failing to comply with its obligations as an
occupying Power in Ituri in respect of violations of international human
rights law and international humanitarian law in the occupied territory.
221. The Court finally would point out that, while it has pronounced on the
violations of international human rights law and international humanitarian
law committed by Ugandan military forces on the territory of the DRC, it
nonetheless observes that the actions of the various parties in the complex
conflict in the DRC have contributed to the immense suffering faced by the
Congolese population. The Court is painfully aware that many atrocities have
been committed in the course of the conflict. It is incumbent on all those
involved in the conflict to support the peace process in the DRC and other
peace processes in the Great Lakes area, in order to ensure respect for
human rights in the region.
***
ILLEGAL EXPLOITATION OF NATURAL RESOURCES
222. In its third submission the DRC requests the Court to adjudge and
declare:
�3. That the Republic of Uganda, by engaging in the illegal exploitation of
Congolese natural resources, by pillaging its assets and wealth, by failing
to take adequate measures to prevent the illegal exploitation of the
resources of the DRC by persons under its jurisdiction or control, and/or
failing to punish persons under its jurisdiction or control having engaged
in the above-mentioned acts, has violated the following principles of
conventional and customary law:
- the applicable rules of international humanitarian 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 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.�
223. The DRC alleges that, following the invasion of the DRC by Uganda in
August 1998, the Ugandan troops �illegally occupying� Congolese territory,
acting in collaboration with Congolese rebel groups supported by Uganda,
systematically looted and exploited the assets and natural resources of the
DRC. According to the DRC, after the systematic looting of natural
resources, the Ugandan military and the rebel groups which it supported
�moved on to another phase in the expropriation of the wealth of Congo, by
direct exploitation of its resources� for their own benefit. The DRC
contends that the Ugandan army took outright control of the entire economic
and commercial system in the occupied areas, with almost the entire market
in consumer goods being controlled by Ugandan companies and businessmen. The
DRC further claims that UDPF forces have engaged in hunting and plundering
of protected species. The DRC charges that the Ugandan authorities did
nothing to put an end to these activities and indeed encouraged the UPDF,
Ugandan companies and rebel groups supported by Uganda to exploit natural
resources on Congolese territory.
224. The DRC maintains that the highest Ugandan authorities, including
President Museveni, were aware of the UPDF forces� involvement in the
plundering and illegal exploitation of the natural resources of the DRC.
Moreover, the DRC asserts that these activities were tacitly supported or
even encouraged by the Ugandan authorities, �who saw in them a way of
financing the continuation of the war in the DRC, �rewarding� the military
involved in this operation and opening up new markets to Ugandan companies�.
225. The DRC claims that the illegal exploitation, plundering and looting of
the DRC�s natural resources by Uganda have been confirmed in a consistent
manner by a variety of independent sources, among them the Porter Commission
Report, the United Nations Panel reports
and reports of national organs and non-governmental organizations. According
to the DRC, the facts which it alleges are also corroborated by the economic
data analysed in various reports by independent experts.
226. The DRC contends that illegal exploitation, plundering and looting of
the DRC�s natural resources constitute violations by Uganda of �the
sovereignty and territorial integrity of the DRC, more specifically of the
DRC�s sovereignty over its natural resources�. In this regard the DRC refers
to the right of States to their natural resources and cites General Assembly
resolution 1803 (XVII) on Permanent Sovereignty over Natural Resources,
adopted on 14 December 1962; the Declaration on the Establishment of a New
International Economic Order contained in United Nations General Assembly
resolution 3201 (S.VI) of 1 May 1974 and the Charter of Economic Rights and
Duties of States, adopted by the United Nations General Assembly in its
resolution 3281 (XXIX) of 12 December 1974.
227. The DRC claims that Uganda in all circumstances is responsible for acts
of plunder and illegal exploitation of the resources of the DRC committed by
officers and soldiers of the UPDF as an organ of the Republic of Uganda. For
the DRC it is not relevant whether members of the Ugandan army acted under,
or contrary to, official orders from their government or in an official or
private capacity.
228. Turning to the duty of vigilance, the DRC argues that, in relation to
the obligation to respect the sovereignty of States over their natural
resources, this duty implies that a State should take adequate measures to
ensure that its military forces, nationals or groups that it controls do not
engage in illegal exploitation of natural resources on the territory of
another State. The DRC claims that all activities involving exploitation of
natural resources conducted by Ugandan companies and nationals and rebel
movements supported by Uganda were acts of illegal exploitation. The DRC
further contends that Uganda took no proper steps to bring to an end the
illegal exploitation of the natural resources of the DRC by members of
Ugandan military, private companies or nationals and by the Congolese rebel
movements that it controlled and supported, thus violating its duty of
vigilance.
229. The DRC asserts that, by engaging in the illegal exploitation,
plundering and looting of the DRC�s natural resources, Uganda also violated
its obligations as an occupying Power under the jus in bello. According to
the DRC, �the detailed rules of the law of armed conflict in relation to the
exploitation of natural resources have to be considered against the
background of this fundamental principle of permanent sovereignty over
natural resources�. This principle, in the view of the DRC, continues to
apply at all times, including during armed conflict and occupation.
*
230. For its part, Uganda maintains that the DRC has not provided reliable
evidence to corroborate its allegations regarding the looting and illegal
exploitation of natural resources of the DRC by Uganda. It claims that
neither the United Nations Panel reports nor the Porter Commission Report
can be considered as supporting the DRC�s allegations. Moreover, according
to Uganda, the limited nature of its intervention is inconsistent with the
DRC�s contention that Uganda occupied the eastern Congo in order to exploit
natural resources. Nor, in view of this fact, could Uganda exercise the
pervasive economic control required to exploit the areas as alleged by the
DRC.
231. Uganda further denies that it has violated the principle of the
Congolese people�s sovereignty over its natural resources. It maintains that
this principle, �which was shaped in a precise historical context (that of
decolonization) and has a very precise purpose�, cannot be applicable in the
context of the present case. Uganda claims that individual acts of members
of the Ugandan military forces committed in their private capacity and in
violation of orders and instructions cannot serve as basis for attributing
to Uganda a wrongful act violating the principle of the permanent
sovereignty of Congolese people over their natural resources.
232. Uganda likewise denies that it violated its duty of vigilance with
regard to acts of illegal exploitation in the territories where its troops
were present. Uganda does not agree with the contention that it had a duty
of vigilance with regard to the Congolese rebel groups, asserting that it
did not control those groups and had no power over their administrative
acts. Uganda also
maintains that, �within the limits of its capabilities, it exercised a high
degree of vigilance to ensure that its nationals did not, through their
actions, infringe the Congolese people�s right to control their natural
resources�.
233. Uganda also contests the view that the alleged breach of its �duty of
vigilance� is founded on Uganda�s failure to prohibit trade �between its
nationals and the territories controlled by the rebels in eastern Congo�. In
Uganda�s view, the de facto authority of Congolese rebel movements
established in eastern Congo could not affect the commercial relations
between the eastern Congo, Uganda and several other States, which were
maintained in the interests of the local populations and essential to the
populations� survival, and therefore �did not impose an obligation to apply
commercial sanctions�.
234. Uganda states that the DRC�s contentions that Uganda failed to take
action against illegal activity are without merit. In this regard it refers
to a radio broadcast by President Museveni in December 1998, which made �it
clear that no involvement of the members of the Ugandan armed forces in
commercial activities in eastern Congo would be tolerated�. Furthermore,
Uganda points out that �the Porter Commission found that there was no
Ugandan governmental policy to exploit the DRC�s natural resources�. It
maintains that the Porter Commission confirmed that the Ugandan Government�s
policy was to forbid its officers and soldiers from engaging in any business
or commercial activities in the DRC. However, in cases where the Porter
Commission found that there was evidence to support allegations that
individual soldiers engaged in commercial activities and looting �acting in
a purely private capacity for their personal enrichment�, the Government of
Uganda accepted the Commission�s recommendations to initiate criminal
investigations against the alleged offenders.
235. Uganda recognizes that, as found by the Porter Commission, there were
instances of illegal commercial activities or looting committed by certain
members of the Ugandan military forces acting in their private capacity and
in violation of orders and instructions given to them �by the highest State
authorities�. However, Uganda maintains that these individual acts cannot be
characterized as �internationally wrongful acts� of Uganda. For Uganda,
violations by Ugandan nationals of the internal law of Uganda or of certain
Congolese rules and practices in the territories where rebels exercised de
facto administrative authority, referred to by the Porter Commission, do not
necessarily constitute an internationally wrongful act, �for it is well
known that the originating act giving rise to international responsibility
is not an act characterized as �illegal� by the domestic law of the State
but an �internationally wrongful act� imputable to a State�.
236. Finally, Uganda asserts that the DRC neither specified precisely the
wrongful acts for which it seeks to hold Uganda internationally responsible
nor did it demonstrate that �it suffered direct injury as a result of acts
which it seeks to impute to Uganda�. In this regard Uganda refers to the
Porter Commission, which, according to Uganda, concluded that �the
overwhelming majority, if not all, of the allegations concerning the
exploitation of the DRC�s forest and agricultural resources by Uganda or by
Ugandan soldiers�, were not proven; that several allegations of looting were
also unfounded; and that Uganda �had at no time intended to exploit the
natural resources of the DRC or to use those resources to �finance the war�
and that it did not do so�.
**
FINDINGS OF THE COURT CONCERNING ACTS OF ILLEGAL EXPLOITATION
OF NATURAL RESOURCES
237. The Court observes that in order to substantiate its allegations the
DRC refers to the United Nations Panel reports and to the Porter Commission
Report. The Court has already expressed its view with regard to the
evidentiary value of the Porter Commission materials in general (see
paragraph 61 above) and considers that both the Porter Commission Report, as
well as the United Nations Panel reports, to the extent that they have later
proved to be probative, furnish sufficient and convincing evidence for it to
determine whether or not Uganda engaged in acts of looting, plundering and
illegal exploitation of the DRC�s natural resources. Taking this into
account, in order to rule on the third submission of the DRC, the Court will
draw its conclusions on the basis of the evidence it finds reliable.
In reaching its decision on the DRC�s claim, it is not necessary for the
Court to make findings of fact with regard to each individual incident
alleged.
238. According to the Porter Commission Report, the written message sent by
General Kazini in response to the radio message broadcast by the Ugandan
President in December 1998 demonstrated that the General was aware of
problems of conduct of some UPDF officers, that he did not take any �real
action until the matter became public� and that he did not inform the
President. The Commission further states that it follows from General
Kazini�s message that he, in point of fact, admitted that the allegation
that �some top officers in the UPDF were planning from the beginning to do
business in Congo was generally true�; �that Commanders in business
partnership with Ugandans were trading in the DRC, about which General
Kazini took no action�; and that Ugandan �military aircraft were carrying
Congolese businessmen into Entebbe, and carrying items which they bought in
Kampala back to the Congo�. The Commission noted that, while certain orders
directed against the use of military aircraft by businessmen were made by
General Kazini, that practice nonetheless continued. The Commission also
referred to a radio message of General Kazini in which he said that
�officers in the Colonel Peter Kerim sector, Bunia and based at Kisangani
Airport were engaging in business contrary to the presidential radio
message�. The Commission further stated that General Kazini was aware that
officers and men of the UPDF were involved in gold mining and trade,
smuggling and looting of civilians.
239. The Commission noted that General Kazini�s radio messages in response
to the reports about misconduct of the UPDF did not intend, in point of
fact, to control this misconduct. It stated as follows:
�There is no doubt that his purpose in producing these messages was to try
to show that he was taking action in respect of these problems . . . There
appears to have been little or no action taken as a result of these messages
. . . all this correspondence was intended by General Kazini to cover
himself, rather than to prompt action. There also appears to be little or no
follow up to the orders given.�
240. The Commission found that General Kazini was �an active supporter in
the Democratic Republic of the Congo of Victoria, an organization engaged in
smuggling diamonds through Uganda: and it is difficult to believe that he
was not profiting for himself from the operation�. The Commission explained
that the company referred to as �Victoria� in its Report dealt �in diamonds,
gold and coffee which it purchased from Isiro, Bunia, Bumba, Bondo, Buta and
Kisangani� and that it paid taxes to the MLC.
241. The Commission further recognized that there had been exploitation of
the natural resources of the DRC since 1998, and indeed from before that.
This exploitation had been carried out, inter alia, by senior army officers
working on their own and through contacts inside the DRC; by individual
soldiers taking advantage of their postings; by cross-border trade and by
private individuals living within Uganda. There were instances of looting,
�about which General Kazini clearly knew as he sent a radio message about
it. This Commission is unable to exclude the possibility that individual
soldiers of the UPDF were involved, or that they were supported by senior
officers.� The Commission�s investigations �reveal that there is no doubt
that both RCD and UPDF soldiers were imposing a gold tax, and that it is
very likely that UPDF soldiers were involved in at least one mining
accident�.
242. Having examined the case file, the Court finds that it does not have at
its disposal credible evidence to prove that there was a governmental policy
of Uganda directed at the exploitation of natural resources of the DRC or
that Uganda�s military intervention was carried out in order to obtain
access to Congolese resources. At the same time, the Court considers that it
has ample credible and persuasive evidence to conclude that officers and
soldiers of the UPDF, including the most high-ranking officers, were
involved in the looting, plundering and exploitation of the DRC�s natural
resources and that the military authorities did not take any measures to put
an end to these acts. (Such acts are referred to in a number of paragraphs
in the Porter Commission Report, in particular, paragraphs 13.1. �UPDF
Officers conducting business�, 13.2. �Gold Mining�, 13.4. �Looting�, 13.5.
�Smuggling�, 14.4. �Allegations against top UPDF Officers�, 14.5.
�Allegations against General Kazini�, 15.7. �Organised Looting�, 20.3.
�General James Kazini� and 21.3.4. �The Diamond Link: General Kazini�).
243. As the Court has already noted (see paragraph 213 above), Uganda is
responsible both for the conduct of the UPDF as a whole and for the conduct
of individual soldiers and officers of the UPDF in the DRC. The Court
further recalls (see paragraph 214 above) that it is also irrelevant for the
purposes of attributing their conduct to Uganda whether UPDF officers and
soldiers acted contrary to instructions given or exceeded their authority.
Thus the Court must now examine whether acts of looting, plundering and
exploitation of the DRC�s natural resources by officers and soldiers of the
UPDF and the failure of the Ugandan authorities to take adequate measures to
ensure that such acts were not committed constitute a breach of Uganda�s
international obligations.
244. The Court finds that it cannot uphold the contention of the DRC that
Uganda violated the principle of the DRC�s sovereignty over its natural
resources (see paragraph 226 above). The Court recalls that the principle of
permanent sovereignty over natural resources is expressed in General
Assembly resolution 1803 (XVII) of 14 December 1962 and further elaborated
in the Declaration on the Establishment of a New International Economic
Order (General Assembly resolution 3201 (S.VI) of 1 May 1974) and the
Charter of Economic Rights and Duties of States (General Assembly resolution
3281 (XXIX) of 12 December 1974). While recognizing the importance of this
principle, which is a principle of customary international law, the Court
notes that there is nothing in these General Assembly resolutions which
suggests that they are applicable to the specific situation of looting,
pillage and exploitation of certain natural resources by members of the army
of a State militarily intervening in another State, which is the
subject-matter of the DRC�s third submission. The Court does not believe
that this principle is applicable to this type of situation.
245. As the Court has already stated (see paragraph 180 above), the acts and
omissions of members of Uganda�s military forces in the DRC engage Uganda�s
international responsibility in
all circumstances, whether it was an occupying Power in particular regions
or not. Thus, whenever members of the UPDF were involved in the looting,
plundering and exploitation of natural resources in the territory of the
DRC, they acted in violation of the jus in bello, which prohibits the
commission of such acts by a foreign army in the territory where it is
present. The Court notes in this regard that both Article 47 of the Hague
Regulations of 1907 and Article 33 of the Fourth Geneva Convention of 1949
prohibit pillage.
The Court further observes that both the DRC and Uganda are parties to the
African Charter on Human and Peoples� Rights of 27 June 1981, which in
paragraph 2 of Article 21, states that �[i]n case of spoliation the
dispossessed people shall have the right to the lawful recovery of its
property as well as to an adequate compensation�.
246. The Court finds that there is sufficient evidence to support the DRC�s
claim that Uganda violated its duty of vigilance by not taking adequate
measures to ensure that its military forces did not engage in the looting,
plundering and exploitation of the DRC�s natural resources.
As already noted, it is apparent that, despite instructions from the Ugandan
President to ensure that such misconduct by UPDF troops cease, and despite
assurances from General Kazini that he would take matters in hand, no action
was taken by General Kazini and no verification was made by the Ugandan
Government that orders were being followed up (see paragraphs 238-239
above). In particular the Court observes that the Porter Commission stated
in its Report that
�[t]he picture that emerges is that of a deliberate and persistent
indiscipline by commanders in the field, tolerated, even encouraged and
covered by General Kazini, as shown by the incompetence or total lack of
inquiry and failure to deal effectively with breaches of discipline at
senior levels�.
(Also of relevance in the Porter Commission Report are paragraphs 13.1 �UPDF
Officers conducting business�, 13.5 �Smuggling� and 14.5 �Allegations
against General Kazini�). It follows that by this failure to act Uganda
violated its international obligations, thereby incurring its international
responsibility. In any event, whatever measures had been taken by its
authorities, Uganda�s responsibility was nonetheless engaged by the fact
that the unlawful acts had been committed by members of its armed forces
(see paragraph 214 above).
247. As for the claim that Uganda also failed to prevent the looting,
plundering and illegal exploitation of the DRC�s natural resources by rebel
groups, the Court has already found that the latter were not under the
control of Uganda (see paragraph 160 above). Thus, with regard to the
illegal activities of such groups outside of Ituri, it cannot conclude that
Uganda was in breach of its duty of vigilance.
248. The Court further observes that the fact that Uganda was the occupying
Power in Ituri district (see paragraph 178 above) extends Uganda�s
obligation to take appropriate measures to prevent the looting, plundering
and exploitation of natural resources in the occupied territory to cover
private persons in this district and not only members of Ugandan military
forces. It is apparent from various findings of the Porter Commission that
rather than preventing the illegal traffic in natural resources, including
diamonds, high-ranking members of the UPDF facilitated such activities by
commercial entities. In this regard, the Report of the Commission mentions a
company referred to as �Victoria� (see paragraph 240 above), which operated,
inter alia, in Bunia. In particular the Report indicates that �General
Kazini gave specific instructions to UPDF Commanders in Isiro, Bunia, Beni,
Bumba, Bondo and Buta to allow the Company to do business uninterrupted in
the areas under their command�. (Also of relevance in the Report of the
Commission are paragraphs 18.5.1 �Victoria Group�, 20.3 �General James
Kazini� and 21.3 �The Diamond Link�.)
249. Thus the Court finds that it has been proven that Uganda has not
complied with its obligations as an occupying Power in Ituri district. The
Court would add that Uganda�s argument
that any exploitation of natural resources in the DRC was carried out for
the benefit of the local population, as permitted under humanitarian law, is
not supported by any reliable evidence.
250. The Court concludes that it is in possession of sufficient credible
evidence to find that Uganda is internationally responsible for acts of
looting, plundering and exploitation of the DRC�s natural resources
committed by members of the UPDF in the territory of the DRC, for violating
its obligation of vigilance in regard to these acts and for failing to
comply with its obligations under Article 43 of the Hague Regulations of
1907 as an occupying Power in Ituri in respect of all acts of looting,
plundering and exploitation of natural resources in the occupied territory.
***
LEGAL CONSEQUENCES OF VIOLATIONS OF INTERNATIONAL OBLIGATIONS BY UGANDA
251. The Court, having established that Uganda committed internationally
wrongful acts entailing its international responsibility (see paragraphs
165, 220 and 250 above), turns now to the determination of the legal
consequences which such responsibility involves.
252. In its fourth submission the DRC requests the Court to adjudge and
declare:
�4. (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . ;
(b) that the Republic of Uganda shall cease forthwith all continuing
internationally wrongful acts, and in particular its support for irregular
forces operating in the DRC and its exploitation of Congolese wealth and
natural resources;
(c) that the Republic of Uganda shall provide specific guarantees and
assurances that it will not repeat the wrongful acts complained of;
(d) that the Republic of Uganda is under an obligation to the Democratic
Republic of the Congo to make reparation for all injury caused to the latter
by the violation of the obligations imposed by international law and set out
in submissions 1, 2 and 3 above;
(e) that the nature, form and amount of the reparation shall be determined
by the Court, failing agreement thereon between the Parties, and that the
Court shall reserve the subsequent procedure for that purpose.�
253. The DRC claims that, as the first legal consequence of the
establishment of Uganda�s international responsibility, the latter is under
an obligation to cease forthwith all continuing internationally wrongful
acts. According to the DRC�s Memorial, this obligation of cessation covers,
in particular, the occupation of Congolese territory, the support for
irregular forces operating in the DRC, the unlawful detention of Congolese
nationals and the exploitation of Congolese wealth and natural resources. In
its Reply the DRC refers to the occupation of Congolese territory, the
support for irregular forces operating in the DRC and the exploitation of
Congolese wealth and natural resources. In its final submission presented at
the end of the oral proceedings, the DRC, in view of the withdrawal of
Ugandan troops from the territory of the DRC, asks that Uganda cease from
providing support for irregular forces operating in the DRC and cease from
exploiting Congolese wealth and natural resources.
*
254. In answer to the question by Judge Vereshchetin (see paragraph 22
above), the DRC explained that, while its claims relating to the occupation
of the territory of the DRC covered the period from 6 August 1998 to 2 June
2003, other claims including those of new military actions, new acts of
support to irregular forces, as well as continuing illegal exploitation of
natural resources, covered the period from 2 August 1998 until the end of
the oral proceedings. The Court notes, however, that it has not been
presented with evidence to support allegations with regard to the period
after 2 June 2003. In particular, the Court observes that there is no
evidence in the case file which can corroborate the DRC�s allegation that at
present Uganda supports irregular forces operating in the DRC and continues
to be involved in the exploitation of Congolese natural resources. Thus, the
Court does not find it established that Uganda, following the withdrawal of
its troops from the territory of the DRC in June 2003, continues to commit
the internationally wrongful acts specified by the DRC. The Court thus
concludes that the DRC�s request that Uganda be called upon to cease the
acts referred to in its submission 4 (b) cannot be upheld.
**
255. The DRC further requests the Court to rule that Uganda provide specific
guarantees and assurances of non-repetition of the wrongful acts complained
of. The DRC claims that this request is justified by �the threats which
accompanied the troop withdrawal in May 2003�. In this regard it alleges
that in April 2003 Mr. James Wapakhabulo, the then Minister for Foreign
Affairs of Uganda, made a statement �according to which �the withdrawal of
our troops from the Democratic Republic of the Congo does not mean that we
will not return there to defend our security!��. As to the form of the
guarantees and assurances of non-repetition, the DRC, referring to existing
international practice, requests from Uganda �a solemn declaration that it
will in future refrain from pursuing a policy that violates the sovereignty
of the Democratic Republic of the Congo and the rights of its population�;
in addition, it �demands that specific instructions to that effect be given
by the Ugandan authorities to their agents�.
*
256. In this respect the Court has taken judicial notice of the Tripartite
Agreement on Regional Security in the Great Lakes, signed on 26 October 2004
by the DRC, Rwanda and Uganda. In the Preamble of this Agreement the Parties
emphasize �the need to ensure that the principles of good neighbourliness,
respect for the sovereignty, territorial integrity, and non-interference in
the internal affairs of sovereign states are respected, particularly in the
region�. Article I indicates that one of the objectives of the Agreement is
to �[e]nsure respect for the sovereignty and territorial integrity of the
countries in the region and cessation of any support for armed groups or
militias, in accordance with relevant resolutions of the United Nations and
other rules of international law�. Finally, in paragraph 1 of Article II,
�[t]he Parties reiterate their commitment to fulfil their obligations and
undertakings under existing agreements and the relevant resolutions of the
United Nations Security Council�. The Parties further agreed to establish a
Tripartite Joint Commission, which, inter alia, �shall implement the terms
of this Agreement and ensure that the objectives of this Agreement are being
met�.
257. The Court considers that, if a State assumes an obligation in an
international agreement to respect the sovereignty and territorial integrity
of the other States parties to that agreement (an obligation which exists
also under general international law) and a commitment to co-operate with
them in order to fulfil such obligation, this expresses a clear legally
binding undertaking that it will not repeat any wrongful acts. In the
Court�s view, the commitments assumed by Uganda under the Tripartite
Agreement must be regarded as meeting the DRC�s request for specific
guarantees and assurances of non-repetition. The Court expects and demands
that the Parties will respect and adhere to their obligations under that
Agreement and under general international law.
**
258. The DRC also asks the Court to adjudge and declare that Uganda is under
an obligation to make reparation to the DRC for all injury caused by the
violation by Uganda of its obligations under international law. The DRC
contends that the internationally wrongful acts attributable to Uganda which
engaged the latter�s international responsibility, namely �years of
invasion, occupation, fundamental human rights violations and plundering of
natural resources�, caused �massive war damage� and therefore entail an
obligation to make reparation. The DRC acknowledges that �for the purposes
of determining the extent of reparation it must specify the nature of the
injury and establish the causal link with the initial wrongful act�.
However, at this stage of the proceedings the DRC requests a general
declaration by the Court establishing the principle that reparation is due,
with the determination of the exact amount of the damages and the nature,
form and amount of the reparation, failing agreement between the Parties,
being deferred until a later stage in the proceedings. The DRC points out
that such a procedure is �in accordance with existing international
jurisprudence� and refers, in particular, to the Court�s Judgment on the
merits in the case concerning Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America).
*
259. The Court observes that it is well established in general international
law that a State which bears responsibility for an internationally wrongful
act is under an obligation to make full reparation for the injury caused by
that act (see Factory at Chorzów, Jurisdiction, 1927, P.C.I.J., Series A,
No. 9, p. 21; Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment,
I.C.J. Reports 1997, p. 81, para. 152; Avena and Other Mexican Nationals
(Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p. 59,
para. 119). Upon examination of the case file, given the character of the
internationally wrongful acts for which Uganda has been found responsible
(illegal use of force, violation of sovereignty and territorial integrity,
military intervention, occupation of Ituri, violations of international
human rights law and of international humanitarian law, looting, plunder and
exploitation of the DRC�s natural resources), the Court considers that those
acts resulted in injury to the DRC and to persons on its territory. Having
satisfied itself that this injury was caused to the DRC by Uganda, the Court
finds that Uganda has an obligation to make reparation accordingly.
260. The Court further considers appropriate the request of the DRC for the
nature, form and amount of the reparation due to it to be determined by the
Court, failing agreement between the Parties, in a subsequent phase of the
proceedings. The DRC would thus be given the opportunity to demonstrate and
prove the exact injury that was suffered as a result of specific actions of
Uganda constituting internationally wrongful acts for which it is
responsible. It goes without saying, however, as the Court has had the
opportunity to state in the past, �that in the phase of the proceedings
devoted to reparation, neither Party may call in question such findings in
the present Judgment as have become res judicata� (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 143, para. 284).
261. The Court also notes that the DRC has stated its intention to seek
initially to resolve the issue of reparation by way of direct negotiations
with Uganda and to submit the question to the Court only �failing agreement
thereon between the parties�. It is not for the Court to determine the final
result of these negotiations to be conducted by the Parties. In such
negotiations, the Parties should seek in good faith an agreed solution based
on the findings of the present Judgment.
***
COMPLIANCE WITH THE COURT�S ORDER ON PROVISIONAL MEASURES
262. In its fifth submission the DRC requests the Court to adjudge and
declare
�5. That the Republic of Uganda has violated the Order of the Court on
provisional measures of 1 July 2000, in that it has failed to comply with
the following provisional measures:
�(1) both Parties must, forthwith, prevent and refrain from any action, and
in particular any armed action, which might prejudice the rights of the
other Party in respect of whatever judgment the Court may render in the
case, or which might aggravate or extend the dispute before the Court or
make it more difficult to resolve;
(2) both Parties must, forthwith, take all measures necessary to comply with
all of their obligations under international law, in particular those under
the United Nations Charter and the Charter of the Organization of African
Unity, and with United Nations Security Council resolution 1304 (2000) of 16
June 2000;
(3) both Parties must, forthwith, take all measures necessary to ensure full
respect within the zone of conflict for fundamental human rights and for the
applicable provisions of humanitarian law�.�
263. The Court observes that its �orders on provisional measures under
Article 41 [of the Statute] have binding effect� (LaGrand (Germany v. United
States of America), Judgment, I.C.J. Reports 2001, p. 506, para. 109). The
Court recalls that the purpose of provisional measures is to protect the
rights of either party, pending the determination of the merits of the case.
The Court�s Order of 1 July 2000 on provisional measures created legal
obligations which both Parties were required to comply with.
264. With regard to the question whether Uganda has complied with the
obligations incumbent upon it as a result of the Order of 1 July 2000, the
Court observes that the Order indicated three provisional measures, as
referred to in the DRC�s fifth submission. The Court notes that the DRC put
forward no specific evidence demonstrating that after July 2000 Uganda
committed acts in violation of each of the three provisional measures
indicated by the Court. The Court however observes that in the present
Judgment it has found that Uganda is responsible for acts in violation of
international human rights law and international humanitarian law carried
out by its military forces in the territory of the DRC (see paragraph 220
above). The evidence shows that such violations were committed throughout
the period when Ugandan troops were present in the DRC, including the period
from 1 July 2000 until practically their final withdrawal on 2 June 2003
(see paragraphs 206-211 above). The Court thus concludes that Uganda did not
comply with the Court�s Order on provisional measures of 1 July 2000.
265. The Court further notes that the provisional measures indicated in the
Order of 1 July 2000 were addressed to both Parties. The Court�s finding in
paragraph 264 is without prejudice to the question as to whether the DRC did
not also fail to comply with the provisional measures indicated by the
Court.
***
COUNTER-CLAIMS: ADMISSIBILITY OF OBJECTIONS
266. It is recalled that, in its Counter-Memorial, Uganda submitted three
counter-claims (see paragraph 5 above). Uganda�s counter-claims were
presented in Chapter XVIII of the Counter-Memorial. Uganda�s first
counter-claim related to acts of aggression allegedly committed by the DRC
against Uganda. Uganda contended that the DRC had acted in 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. Uganda�s second counter-claim related to attacks on
Ugandan diplomatic premises and personnel in Kinshasa, and on Ugandan
nationals, for which the DRC is alleged to be responsible. Uganda contended
that the acts of the DRC amounted to an illegal use of force, and were in
breach of certain rules of conventional or customary international law
relating to the protection of persons and property. Uganda�s third
counter-claim related to alleged violations by the DRC of specific
provisions of the Lusaka Agreement. Uganda also requested that the Court
reserve the issue of reparation in relation to the counter-claims for a
subsequent stage of the proceedings (see Armed Activities on the Territory
of the Congo (Democratic Republic of the Congo v. Uganda), Counter-Claims,
Order of 29 November 2001, I.C.J. Reports 2001, p. 664, para. 4).
267. By an Order of 29 November 2001 the Court found, with regard to the
first and second counter-claims, that the Parties� respective claims in both
cases related to facts of the same nature and formed part of the same
factual complex, and that the Parties were moreover pursuing the same legal
aims. The Court accordingly concluded that these two counter-claims were
admissible as such (I.C.J. Reports 2001, pp. 678-682, paras. 38-41, 45 and
51). By contrast, the Court found that Uganda�s third counter-claim was
inadmissible as such, since it was not directly connected with the
subject-matter of the DRC�s claims (ibid., pp. 680-682, paras. 42-43, 45 and
51).
**
268. The DRC maintains that the joinder of Uganda�s first and second
counter-claims to the proceedings does not imply that preliminary objections
cannot be raised against them. The DRC contends that it is therefore
entitled to raise objections to the admissibility of the counter-claims at
this stage of the proceedings. Furthermore, the DRC states that it had
�clearly indicated in its written observations on Uganda�s counter-claims,
in June 2001, that is to say prior to the Order made by the Court in
November 2001, that it reserved the right to submit preliminary objections
in its Reply� (emphasis in the original). As it was unable to comply
literally with Article 79, which does not expressly contemplate the
submission of preliminary objections in respect of counter-claims, the DRC
states that it applied the principle of that provision, mutatis mutandis, to
the situation with which it was confronted, i.e. it submitted the objections
in the first written pleading following both the submission of
counter-claims by Uganda in its Counter-Memorial and the Order whereby the
Court ruled on the admissibility of those claims as counter-claims.
According to the DRC, the Court only ruled in its Order of 29 November 2001
�on the admissibility of this claim as a counter-claim, without prejudging
any other question which might arise with respect to it� (emphasis in the
original). The DRC further argues that the Court�s decision is limited to
the context of Article 80 of its Rules, and in no way �constitutes a ruling
on the admissibility of the counter-claims as new claims joined to the
proceedings�.
*
269. Uganda asserts that the DRC is no longer entitled at this stage of the
proceedings to plead the inadmissibility of the counter-claims, since the
Court�s Order of 29 November 2001 is a definitive determination on
counter-claims under Article 80 of the Rules of Court and precludes any
discussion on the admissibility of the counter-claims themselves. Uganda
further contends that the DRC never submitted its preliminary objections in
the form or within the time-limit prescribed by Article 79 of the Rules of
Court.
*
270. In its consideration of the counter-claims submitted by Uganda, the
Court must first address the question whether the DRC is entitled to
challenge at this stage of the proceedings the admissibility of the
counter-claims.
271. The Court notes that in the Oil Platforms case it was called upon to
resolve the same issue now raised by Uganda. In that case, the Court
concluded that Iran was entitled to challenge the admissibility of the
United States counter-claim in general, even though the counter-claim had
previously been found admissible under Article 80 of the Rules (Oil
Platforms, Judgment, I.C.J. Reports 2003, p. 210, para. 105). Discussing its
prior Order, the Court declared:
�When in that Order the Court ruled on the �admissibility� of the
counter-claim, the task of the Court at that stage was only to verify
whether or not the requirements laid down by Article 80 of the Rules of
Court were satisfied, namely, that there was a direct connection of the
counter-claim with the subject-matter of the [principal] claims . . .�
(Ibid.)
272. There is nothing in the facts of the present case that compels a
different conclusion. On the contrary, the language of the Court�s Order of
29 November 2001 clearly calls for the same outcome as the Court reached in
the Oil Platforms case. After finding the first and second counter-claim
admissible under the Article 80 connection test, the Court emphasized in its
Order of 29 November 2001 that �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� (Armed Activities on the
Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Counter-Claims, Order of 29 November 2001, I.C.J. Reports 2001, p. 681,
para. 46).
273. The enquiry under Article 80 as to admissibility is only in regard to
the question whether a counter-claim is directly connected with the
subject-matter of the principal claim; it is not an over-arching test of
admissibility. Thus the Court, in its Order of 29 November 2001, intended
only to settle the question of a �direct connection� within the meaning of
Article 80. At that point in time it had before it only an objection to
admissibility founded on the absence of such a connection.
274. With regard to Uganda�s contention that the preliminary objections of
the DRC are inadmissible because they failed to conform to Article 79 of the
Rules of Court, the Court would observe that Article 79 concerns the case of
an �objection by the respondent to the jurisdiction of
the Court or to the admissibility of the application, or other objection the
decision upon which is requested before any further proceedings on the
merits�. It is inapplicable to the case of an objection to counter-claims
which have been joined to the original proceedings. The Court notes that
nonetheless, the DRC raised objections to the counter-claims in its Reply,
i.e., the first pleading following the submission of Uganda�s
Counter-Memorial containing its counter-claims. 275. In light of the
findings above, the Court concludes that the DRC is still entitled, at this
stage of the proceedings, to challenge the admissibility of Uganda�s
counter-claims.
**
FIRST COUNTER-CLAIM
276. In its first counter-claim, Uganda contends that, since 1994, it has
been the victim of military operations and other destabilizing activities
carried out by hostile armed groups based in the DRC (which between 1971 and
1997 was called Zaire) and either supported or tolerated by successive
Congolese governments. Uganda asserts that elements of these anti-Ugandan
armed groups were supported by the Sudan and fought in co-operation with the
Sudanese and Congolese armed forces. Uganda further claims that the DRC
cultivated its military alliance with the Government of the Sudan, pursuant
to which the Sudanese army occupied airfields in north-eastern Congo for the
purpose of delivering arms, supplies and troops to the anti-Ugandan rebels.
277. Uganda maintains that actions taken in support of the anti-Ugandan
insurgents on the part of the Congolese authorities constitute a violation
of the general rule forbidding the use of armed force in international
relations, as well as a violation of the principle of non-intervention in
the internal affairs of a State. Uganda recalls in particular that �[i]n the
Corfu Channel case, the International Court of Justice pointed out that
�every State�s obligation not to allow knowingly its territory to be used
for acts contrary to the rights of other States� is a �general and
well-recognized principle� (I.C.J. Reports 1949, pp. 22-23)�. In Uganda�s
view, from this principle there flows not only a duty to refrain from
providing any support to groups carrying out subversive or terrorist
activities against another State, but also a duty of vigilance to ensure
that such activities are not tolerated. In the present case, Uganda contends
that �the DRC not only tolerated the anti-Ugandan rebels, but also supported
them very effectively in various ways, before simply incorporating some of
them into its armed forces�.
278. In the context of the DRC�s alleged involvement in supporting
anti-Ugandan irregular forces from May 1997 to August 1998, Uganda contends
that it is not necessary to prove the involvement of the DRC in each attack;
it suffices to prove that �President Kabila and his government were
co-ordinating closely with the anti-Ugandan rebels prior to August 1998�.
279. According to Uganda, the DRC�s support for anti-Ugandan armed irregular
forces cannot be justified as a form of self-defence in response to the
alleged armed aggression by Uganda, since the DRC�s military alliances with
the rebel groups and the Sudan and their activities preceded Uganda�s
decision of 11 September 1998 to send its troops into the DRC (see
paragraphs 37, 39 and 121 above).
*
280. In rebutting Uganda�s first counter-claim, the DRC divides it into
three periods of time, corresponding to distinct factual and legal
situations: (a) the period prior to President Laurent-Désiré Kabila coming
to power; (b) the period starting from the accession to power of President
Kabila until 2 August 1998, the date on which Uganda�s military attack was
launched; and (c) the period subsequent to 2 August 1998. It submits that,
in so far as the alleged claim that the DRC was involved in armed attacks
against Uganda covers the first period, it is inadmissible and, in the
alternative, groundless. It further asserts that the claim has no basis in
fact for the second period and that it is not founded in fact or in law
regarding the third period.
281. With regard to the first period, before President Kabila came to power
in May 1997, the DRC contends that the Ugandan counter-claim is inadmissible
on the basis that Uganda renounced its right to invoke the international
responsibility of the DRC (Zaire at the time) in respect of acts dating back
to that period. In particular, the DRC contends that �Uganda never expressly
imputed international responsibility to Zaire� and did not �express any
intention of formally invoking such responsibility�. The DRC further states
that the close collaboration between the two States after President Kabila
came to power, including in the area of security, justifiably led the
Congolese authorities to believe that �Uganda had no intention of
resurrecting certain allegations from the period concerned and of seeking to
engage the Congo�s international responsibility on that basis�.
282. In the alternative, the DRC claims that the first Ugandan counter-claim
in respect of this period is devoid of foundation, since the documents
presented in support of Uganda�s contention,
�emanating unilaterally from Uganda, fail to meet the judicial standard of
proof� and that Uganda has made no efforts to provide further proof.
283. In any event, the DRC denies having breached any duty of vigilance,
during the period when Marshal Mobutu was in power, by having failed to
prevent Ugandan rebel groups from using its territory to launch attacks in
Uganda. The DRC also denies having provided political and military support
to those groups during the period concerned.
284. Regarding the second period, from May 1997 to early August 1998, the
DRC reiterates that it has always denied having provided military support
for Ugandan rebel groups or having participated in their military
operations. According to the DRC, Uganda has failed to demonstrate not only
that the rebel groups were its de facto agents, but also that the DRC had
planned, prepared or participated in any attack or that the DRC had provided
support to Ugandan irregular forces.
285. The DRC further contends that no evidence has been adduced to support
the claim that, in early August 1998, the DRC entered into a military
alliance with the Sudan. In the view of the DRC, Uganda has failed to
provide proof either of the alleged meeting which was said to have taken
place between the President of the DRC and the President of the Sudan in May
1998, or of the alleged agreement concluded between the DRC and the Sudan
that same month and designed to destabilize Uganda.
286. With regard to the third period, the DRC maintains that the documents
presented by Uganda, which were prepared by the Ugandan authorities
themselves, are not sufficient to establish that the DRC was involved in any
attacks against Uganda after the beginning of August 1998. Likewise, the DRC
states that the allegations of general support by the DRC for the
anti-Ugandan rebels cannot be substantiated by the documents submitted by
Uganda.
287. The DRC argues in the alternative that, in any event, from a legal
perspective it was in a position of self-defence from that date onwards; and
that, in view of the involvement of the UPDF in the airborne operation at
Kitona on 4 August 1998, the DRC would have been entitled to use force to
repel the aggression against it, as well as to seek support from other
States.
*
288. In response to the foregoing arguments of the DRC as set out in
paragraphs 280 to 281 above, Uganda states the following.
289. It disagrees that the first counter-claim should be divided into three
historical periods, namely, from 1994 to 1997 (under Mobutu�s presidency),
from May 1997 to 2 August 1998, and
the period beginning on 2 August 1998. Uganda argues that in its Order of 29
November 2001 the Court found that �Uganda�s counter-claim satisfied the
direct connection requirement laid down by Article 80 of the Rules of Court
and did so for the entire period since 1994�. In Uganda�s view, this shows
that the Court �refuses to accept the DRC�s argument that three periods
should be distinguished in the history of recent relations between the Congo
and Uganda�. Uganda further asserts that by attempting to �slice� a
continuing wrongful act into separate periods the DRC is seeking to �limit
Uganda�s counter-claim�. Uganda maintains that Zaire and the DRC �are not
distinct entities� and that �by virtue of the State continuity principle, it
is precisely the same legal person� which is responsible for the acts
complained of in the first counter-claim.
290. With reference to the objection raised by the DRC that Uganda is
precluded from filing a claim in relation to alleged violations of its
territorial sovereignty on the grounds that it renounced its right to do so,
Uganda argues that the conditions required in international law for the
waiver of an international claim to be recognized are not satisfied in the
present case. In terms of fact, Uganda asserts that, during the Mobutu
years, it repeatedly protested against Zaire�s passive and active support of
anti-Ugandan forces directly to Zaire and to the United Nations. Uganda also
repeatedly informed the United Nations of Zaire�s joint efforts with the
Sudan to destabilize Uganda. Uganda further argues that its co-operation
with Laurent-Désiré Kabila�s AFDL movement, aimed at improving security
along the common border area, did not amount to a waiver of any earlier
claims against Zaire. In terms of law, Uganda asserts that in any event the
absence of protest does not validate illegal acts and that any failure to
address complaints to the Security Council should not be regarded as a cause
of inadmissibility. Uganda concludes that the DRC�s objections to its first
counter-claim should therefore be dismissed.
*
291. The Court has taken note that Uganda disagrees with the division of the
first counter-claim of Uganda into three periods as argued by the DRC. The
Court recalls that, in paragraph 39 of its Order on Counter-Claims of 29
November 2001, it considered that �the first counter-claim submitted by
Uganda is . . . directly connected, in regard to the entire period covered,
with the subject-matter of the Congo�s claims�. The DRC does not contest
this finding, but rather argues that the first counter-claim is partially
inadmissible and not founded as to the merits. The Court observes that its
Order of 29 November 2001 does not deal with questions of admissibility
outside the scope of Article 80 of the Rules, nor does it deal with the
merits of the first counter-claim. Neither does the Order prejudge any
question as to the possibility of dividing this counter-claim according to
specific periods of time. The Court is not therefore precluded, if it is
justified by the circumstances of the case, from considering the first
counter-claim following specific time periods. In the present case, in view
of the fact that the historical periods identifiedby the DRC indeed differ
in their factual context and are clearly distinguishable, the Court does not
see any obstacle to examining Uganda�s first counter-claim following these
three periods of time and for practical purposes deems it useful to do so.
292. The Court now turns to the question of admissibility of the part of the
first counter-claim of Uganda relating to the period prior to May 1997. The
Court observes that the DRC has not presented any evidence showing an
express renunciation by Uganda of its right to bring a counter-claim in
relation to facts dating back to the Mobutu régime. Rather, it argues that
Uganda�s subsequent conduct amounted to an implied waiver of whatever claims
it might have had against the DRC as a result of the actions or inaction of
the Mobutu régime.
293. The Court observes that waivers or renunciations of claims or rights
must either be express or unequivocally implied from the conduct of the
State alleged to have waived or renounced its right. In the case concerning
Certain Phosphate Lands in Nauru (Nauru v. Australia), the Court rejected a
similar argument of waiver put forth by Australia, which argued that Nauru
had renounced certain of its claims; noting the absence of any express
waiver, the Court furthermore considered that a waiver of those claims could
not be implied on the basis of the conduct of Nauru (Preliminary Objections,
Judgment, I.C.J. Reports 1992, pp. 247-250, paras. 12-21). Similarly, the
International Law Commission, in its commentary on Article 45 of the Draft
Articles on Responsibility of States for internationally wrongful acts,
points out that �[a]lthough it may be possible to infer a waiver from the
conduct of the States concerned or from a unilateral statement, the conduct
or statement must be unequivocal� (ILC report, doc. A/56/10, 2001, p. 308).
In the Court�s view, nothing in the conduct of Uganda in the period after
May 1997 can be considered as implying an unequivocal waiver of its right to
bring a counter-claim relating to events which occurred during the Mobutu
régime.
294. The period of friendly relations enjoyed between the DRC and Uganda
between May 1997 and July 1998 does nothing to affect this outcome. A period
of good or friendly relations between two States should not, without more,
be deemed to prevent one of the States from raising a pre-existing claim
against the other, either when relations between the two States have again
deteriorated or even while the good relations continue. The political
climate between States
does not alter their legal rights.
295. The Court further observes that, in a situation where there is a delay
on the part of a State in bringing a claim, it is �for the Court to
determine in the light of the circumstances of each case whether the passage
of time renders an application inadmissible� (Certain Phosphate Lands in
Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports
1992, p. 254, para. 32). In the circumstances of the present case, the long
period of time between the events at stake during the Mobutu régime and the
filing of Uganda�s counter-claims has not rendered inadmissible Uganda�s
first counter-claim for the period prior to May 1997.
296. The Court accordingly finds that the DRC�s objection cannot be upheld.
297. Regarding the merits of Uganda�s first counter-claim for the period
prior to May 1997, Uganda alleges that the DRC breached its duty of
vigilance by allowing anti-Ugandan rebel groups to use its territory to
launch attacks on Uganda, and by providing political and military support to
those groups during this period.
298. The Court considers that Uganda has not produced sufficient evidence to
show that the Zairean authorities were involved in providing political and
military support for specific attacks against Ugandan territory. The bulk of
the evidence submitted consists of uncorroborated Ugandan military
intelligence material and generally fails to indicate the sources from which
it is drawn. Many such statements are unsigned. In addition, many documents
were submitted as evidence by Uganda, such as the address by President
Museveni to the Ugandan Parliament on 28 May 2000, entitled �Uganda�s Role
in the Democratic Republic of the Congo�, and a document entitled
�Chronological Illustration of Acts of Destabilization by Sudan and Congo
based Dissidents�. In the circumstances of this case, these documents are of
limited probative value to the extent that they were neither relied on by
the other Party nor corroborated by impartial, neutral sources. Even the
documents that purportedly relate eyewitness accounts are vague and thus
unconvincing. For example, the information allegedly provided by an ADF
deserter, reproduced in Annex 60 to the Counter-Memorial, is limited to the
following: �In 1996 during Mobutu era before Mpondwe attack, ADF received
several weapons from Sudan government with the help of Zaire government.�
The few reports of non-governmental organizations put forward by Uganda
(e.g. a
report by HRW) are too general to support a claim of Congolese involvement
rising to a level engaging State responsibility.
299. In sum, none of the documents submitted by Uganda, taken separately or
together, can serve as a sound basis for the Court to conclude that the
alleged violations of international law occurred. Thus Uganda has failed to
discharge its burden of proof with regard to its allegation that Zaire
provided political and military support to anti-Ugandan rebel groups
operating in its territory during the Mobutu régime.
300. As to the question of whether the DRC breached its duty of vigilance by
tolerating anti-Ugandan rebels on its territory, the Court notes that this
is a different issue from the question of active support for the rebels,
because the Parties do not dispute the presence of the anti-Ugandan rebels
on the territory of the DRC as a factual matter. The DRC recognized that
anti-Ugandan groups operated on the territory of the DRC from at least 1986.
Under the Declaration on Friendly Relations, �every State has the duty to
refrain from . . . acquiescing in organized activities within its territory
directed towards the commission of such acts� (e.g., terrorist acts, acts of
internal strife) and also �no State shall . . . tolerate subversive,
terrorist or armed activities directed towards the violent overthrow of the
regime of another State . . .�. As stated earlier, these provisions are
declaratory of customary international law (see paragraph 162 above).
301. The Court has noted that, according to Uganda, the rebel groups were
able to operate �unimpeded� in the border region between the DRC and Uganda
�because of its mountainous terrain, its remoteness from Kinshasa (more than
1,500 km), and the almost complete absence of
central government presence or authority in the region during President
Mobutu�s 32-year term in office�.
During the period under consideration both anti-Ugandan and anti-Zairean
rebel groups operated in this area. Neither Zaire nor Uganda were in a
position to put an end to their activities. However, in the light of the
evidence before it, the Court cannot conclude that the absence of action by
Zaire�s Government against the rebel groups in the border area is tantamount
to �tolerating� or �acquiescing� in their activities. Thus, the part of
Uganda�s first counter-claim alleging Congolese responsibility for
tolerating the rebel groups prior to May 1997 cannot be upheld.
302. With regard to the second period, from May 1997 until 2 August 1998,
the DRC does not contest the admissibility of Uganda�s counter-claim.
Rather, it argues simply that the counter-claim has no basis in fact.
303. In relation to this period, the Court finds that Uganda has failed to
provide conclusive evidence of actual support for anti-Ugandan rebel groups
by the DRC. Whereas in the first period the counter-claim suffered from a
general lack of evidence showing the DRC�s support for anti-Ugandan rebels,
the second period is marked by clear action by the DRC against the rebels.
Relations between the DRC and Uganda during this second period improved and
the two governments undertook joint actions against the anti-Ugandan rebels.
The DRC consented to the
deployment of Ugandan troops in the border area. In April 1998 the DRC and
Uganda even concluded an agreement on security along the common border (see
paragraph 46 above). The DRC was thus acting against the rebels, not in
support of them. It appears, however, that, due to the difficulty and
remoteness of the terrain discussed in relation to the first period, neither
State was capable of putting an end to all the rebel activities despite
their efforts in this period. Therefore, Uganda�s counter-claim with respect
to this second period also must fail.
304. In relation to the third period, following 2 August 1998, the Court has
already found that the legal situation after the military intervention of
the Ugandan forces into the territory of the DRC was, after 7 August,
essentially one of illegal use of force by Uganda against the DRC (see
paragraph 149 above). In view of the finding that Uganda engaged in an
illegal military operation against the DRC, the Court considers that the DRC
was entitled to use force in order to repel Uganda�s attacks. The Court also
notes that it has never been claimed that this use of force was not
proportionate nor can the Court conclude this from the evidence before it.
It follows that any military action taken by the DRC against Uganda during
this period could not be deemed wrongfulsince it would be justified as
action taken in self-defence under Article 51 of the United Nations Charter.
Moreover, the Court has already found that the facts alleged by Uganda in
its counter-claim in respect of this period, namely the participation of DRC
regular troops in attacks by anti-Ugandan rebels against the UPDF and the
training, arming, equipping, financing and supplying of anti-Ugandan
insurgents, cannot be considered as proven (see paragraphs 121-147 above).
Consequently, Uganda�s first counter-claim cannot be upheld as regards the
period following 2 August 1998.
305. The Court thus concludes that the first counter-claim submitted by
Uganda fails in its entirety.
**
SECOND COUNTER-CLAIM
306. In its second counter-claim, Uganda claims that Congolese armed forces
carried out three separate attacks on the Ugandan Embassy in Kinshasa in
August, September and November 1998; confiscated property belonging to the
Government of Uganda, Ugandan diplomats and Ugandan nationals; and
maltreated diplomats and other Ugandan nationals present on the premises of
the mission.
307. In particular, Uganda contends that on or around 11 August 1998
Congolese soldiers stormed the Ugandan Embassy in Kinshasa, threatened the
ambassador and other diplomats, demanding the release of certain Rwandan
nationals. According to Uganda, the Congolese soldiers also stole money
found in the Chancery. Uganda alleges that, despite protests by Ugandan
Embassy officials, the Congolese Government took no action.
308. Uganda further asserts that, prior to their evacuation from the DRC on
20 August 1998, 17 Ugandan nationals and Ugandan diplomats were likewise
subjected to inhumane treatment by FAC troops stationed at Ndjili
International Airport. Uganda alleges that, before releasing the Ugandans,
the FAC troops confiscated their money, valuables and briefcases. Uganda
states that a Note of protest with regard to this incident was sent by the
Embassy of Uganda to the Ministry of Foreign Affairs of the DRC on 21 August
1998.
309. Uganda claims that in September 1998, following the evacuation of the
remaining Ugandan diplomats from the DRC, FAC troops forcibly seized the
Ugandan Chancery and the official residence of the Ugandan Ambassador in
Kinshasa. Uganda maintains that the Congolese troops stole property from the
premises, including four embassy vehicles. According to Uganda, on 23
November 1998 FAC troops again forcibly entered the Ugandan Chancery and the
official residence of the Ugandan Ambassador in Kinshasa and stole property,
including embassy furniture, household and personal effects belonging to the
Ambassador and to other diplomatic staff, embassy office equipment, Ugandan
flags and four vehicles belonging to Ugandan nationals. Uganda alleges that
the Congolese army also occupied the Chancery and the official residence of
the Ugandan Ambassador.
310. Uganda states that on 18 December 1998 the Ministry of Foreign Affairs
of Uganda sent a Note of protest to the Ministry of Foreign affairs of the
DRC, in which it referred to the incidents of September 1998 and 23 November
1998 and demanded, inter alia, that the Government of the DRC return all the
property taken from the Embassy premises, that all Congolese military
personnel vacate the two buildings and that the mission be protected from
any further intrusion.
311. Uganda alleges, moreover, that �[t]he Congolese government permitted
WNBF commander Taban Amin, the son of former Ugandan dictator Idi Amin, to
occupy the premises of the Uganda Embassy in Kinshasa and establish his
official headquarters and residence at those facilities�. In this regard,
Uganda refers to a Note of protest dated 21 March 2001, whereby the Ministry
of Foreign Affairs of Uganda requested that the Government of the DRC ask
Mr. Taban Amin to vacate the Ugandan Embassy�s premises in Kinshasa.
312. Uganda further refers to a visit on 28 September 2002 by a joint
delegation of Ugandan and Congolese officials to the Chancery and the
official residence of the Ambassador of Uganda in Kinshasa. Uganda notes
that the Status Report, signed by the representatives of both Parties
following the visit, indicates that �at the time of the inspection, both
premises were occupied� and that the joint delegation �did not find any
movable property belonging to the Uganda embassy or its former officials�.
Uganda states that the joint delegation also �found the buildings in a state
of total disrepair�. As a result of that situation, Uganda claims that it
was recently obliged to rent premises for its diplomatic and consular
mission in Kinshasa.
313. Uganda argues that the DRC�s actions are in breach of international
diplomatic and consular law, in particular Articles 22 (inviolability of the
premises of the mission), 29 (inviolability of the person of diplomatic
agents), 30 (inviolability of the private residence of a diplomatic agent)
and 24 (inviolability of archives and documents of the mission) of the 1961
Vienna Convention on Diplomatic Relations. In addition, Uganda contends
that,
�[t]he inhumane treatment and threats to the security and freedom of
nationals of Uganda . . . constitute a series of breaches of the
international minimum standard relating to the treatment of foreign
nationals lawfully on State territory, which standard forms a part of
customary or general international law�;
and that, in respect of the seizure of the Embassy of Uganda, the official
residence of the Ambassador and official cars of the mission, these actions
constitute an unlawful expropriation of the public property of Uganda.
*
314. The DRC contends that Uganda�s second counter-claim is partially
inadmissible on the ground that Uganda has ascribed new legal bases in its
Rejoinder to the DRC�s responsibility by including claims based on the
violation of the Vienna Convention on Diplomatic Relations. According to the
DRC, Uganda thus breaks the connection with the principal claim, which
refers to �the violation of the United Nations Charter provisions on the use
of force and on non-intervention, as well as the Hague and Geneva
Conventions on the protection of persons and property in time of occupation
and armed conflict�. The DRC also asserts that the alleged modification of
the subject-matter of this part of the dispute is manifestly incompatible
with the Court�s Order of 29 November 2001.
315. The DRC further argues that the claim based on the inhumane treatment
of Ugandan nationals cannot be admitted, because the requirements for
admissibility of a diplomatic protection claim are not satisfied. As for the
first condition relating to the nationality of the alleged victims, the DRC
claims that Uganda has not shown that the persons on whose behalf it is
claiming to act are of Ugandan nationality and not Rwandan or of any dual
nationality. Regarding the second condition relating to the exhaustion of
local remedies, the DRC contends that,
�since it seems that these individuals left the Democratic Republic of the
Congo in a group in August 1998 and that is when they allegedly suffered the
unspecified, unproven injuries, it would not appear that the requirement of
exhaustion of local remedies has been satisfied�.
*
316. Uganda, for its part, claims that Chapter XVIII of its Counter-Memorial
�clearly shows, with no possibility of doubt, that since the beginning of
the dispute Uganda has invoked violation
of the 1961 Vienna Convention in support of its position on the
responsibility of the Congo�. Uganda further notes that in its Order of 29
November 2001, in the context of Uganda�s second counter-claim, the Court
concluded that the Parties were pursuing the same legal aims by seeking
�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� (I.C.J. Reports 2001, p. 679, para. 40). Uganda
contends that the reference
to �conventional . . . law� must necessarily relate to the Vienna Convention
on Diplomatic Relations, �the only conventional instrument expressly named
in that part of the Counter-Memorial devoted to the second claim�. Thus
Uganda argues that it has not changed the subject-matter of the dispute.
317. As to the inadmissibility of the part of the claim relating to the
alleged maltreatment of certain Ugandan nationals, according to Uganda it is
not linked to any claims of Ugandan nationals; its claim is based on
violations by the DRC, directed against Uganda itself, of general rules of
international law relating to diplomatic relations, of which Ugandan
nationals present in the premises of the mission were indirect victims.
Uganda considers that local remedies need not be exhausted when the
individual is only the indirect victim of a violation of a State-to-State
obligation. Uganda states that �[t]he breaches of the Convention also
constitute direct injury to Uganda and the local remedies rule is therefore
inapplicable�. Uganda contends that, even assuming that this aspect of the
second claim could be interpreted as the exercise by Uganda of diplomatic
protection, the local remedies rule would not in any event be applicable
because the principle is that the rule can only apply when effective
remedies are available in the national system. In this regard, Uganda argues
that any remedy before Congolese courts would be ineffective, due to the
lack of impartiality within the Congolese justice system. Additionally,
Uganda contends that �[t]he inhumane treatment and threats to the security
and freedom of nationals of Uganda . . . constitute a series of breaches of
the international minimum standard relating to the treatment of foreign
nationals lawfully on State territory, which standard forms a part of
customary or general international law�.
*
318. As to the merits of the second counter-claim, the DRC, without
prejudice to its arguments on the inadmissibility of the second
counter-claim, argues that in any event Uganda has been unable to establish
the factual and legal bases of its claims. According to the DRC, �none of
these accusations made against [the DRC] by the Respondent has any serious
and credible factual basis�. The DRC also challenges the evidentiary value
�in law� of the documents adduced by Uganda to support its claims.
319. The DRC denies having subjected Ugandan nationals to inhumane treatment
during an alleged attack on the Ugandan Embassy in Kinshasa on 11 August
1998 and denies that further attacks occurred in September and November
1998. According to the DRC, the Ugandan diplomatic buildings in Kinshasa
were never seized or expropriated, nor has the DRC ever sought to prevent
Uganda from reoccupying its property. The DRC further states that it did not
expropriate Ugandan public property in Kinshasa in August 1998, nor did it
misappropriate the vehicles of the Ugandan diplomatic mission in Kinshasa,
or remove the archives or seize moveable property from those premises.
320. The DRC likewise contests the assertion that it allowed the commander
of the WNBF to occupy the premises of the Ugandan Embassy in Kinshasa and to
establish his official headquarters and residence there. The DRC also
refutes the allegation that on 20 August 1998 various Ugandan nationals were
maltreated by the FAC at Ndjili International Airport in Kinshasa.
321. The DRC contends that the part of the claim relating to the alleged
expropriation of Uganda�s public property is unfounded because Uganda has
been unable to establish the factual and legal bases of its claims.
According to the DRC, Uganda has not adduced any credible evidence to show
that either the two buildings (the Embassy and the Ambassador�s residence)
or
the four official vehicles were seized by the DRC.
*
322. The Court will first turn to the DRC�s challenge to the admissibility
of the second counter-claim on the grounds that, by formally invoking the
Vienna Convention on Diplomatic Relations for the first time in its
Rejoinder of 6 December 2002, Uganda has �[sought] improperly to enlarge the
subject-matter of the dispute, contrary to the Statute and Rules of Court�
and contrary to the Court�s Order of 29 November 2001.
323. The Court first recalls that the Vienna Convention on Diplomatic
Relations continues to apply notwithstanding the state of armed conflict
that existed between the Parties at the time of the alleged maltreatment.
The Court recalls that, according to Article 44 of the Vienna Convention on
Diplomatic Relations:
�The receiving State must, even in case of armed conflict, grant facilities
in order to enable persons enjoying privileges and immunities, other than
nationals of the receiving State, and members of the families of such
persons irrespective of their nationality, to leave at the earliest possible
moment. It must, in particular, in case of need, place at their disposal the
necessary means of transport for themselves and their property.�
324. Further, Article 45 of the Vienna Convention provides as follows:
�If diplomatic relations are broken off between two States, or if a mission
is permanently or temporarily recalled:
(a) the receiving State must, even in case of armed conflict, respect and
protect the premises of the mission, together with its property and
archives;
(b) the sending State may entrust the custody of the premises of the
mission, together with its property and archives, to a third State
acceptable to the receiving State;
(c) the sending State may entrust the protection of its interests and those
of its nationals to a third State acceptable to the receiving State.�
In the case concerning United States Diplomatic and Consular Staff in
Tehran, the Court emphasized that �[e]ven in the case of armed conflict or
in the case of a breach in diplomatic relations those provisions require
that both the inviolability of the members of a diplomatic mission and of
the premises, . . . must be respected by the receiving State� (Judgment,
I.C.J. Reports 1980, p. 40, para. 86).
325. In relation to the DRC�s claim that the Court�s Order of 29 November
2001 precludes the subsequent invocation of the Vienna Convention on
Diplomatic Relations, the Court recalls the language of this Order: �each
Party holds the other responsible for various acts of oppression allegedly
accompanying an illegal use of force . . . each Party seeks to establish the
responsibility
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� (I.C.J. Reports 2001, p. 679, para. 40;
emphasis added).
326. The Court finds this formulation sufficiently broad to encompass claims
based on the Vienna Convention on Diplomatic Relations, taking note that the
new claims are based on the same factual allegation, i.e. the alleged
illegal use of force. The Court was entirely aware, when making its Order,
that the alleged attacks were on Embassy premises. Later reference to
specific additional legal elements, in the context of an alleged illegal use
of force, does not alter the nature or subject-matter of the dispute. It was
the use of force on Embassy premises that brought this counter-claim within
the scope of Article 80 of the Rules, but that does not preclude examination
of the special status of the Embassy. As the jurisprudence of the Court
reflects, counter-claims do not have to rely on identical instruments to
meet the �connection� test of Article 80 (see Land and Maritime Boundary
between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections,
Judgment, I.C.J. Reports 1998, pp. 318-319).
327. The Court therefore finds that Uganda�s second counter-claim is not
rendered inadmissible in so far as Uganda has subsequently invoked Articles
22, 24, 29, and 30 of the Vienna Convention on Diplomatic Relations.
328. The Court will now consider the DRC�s challenge to the admissibility of
the second counter-claim on the ground that it is in reality a claim founded
on diplomatic protection and as such fails, as Uganda has not shown that the
requirements laid down by international law for the exercise of diplomatic
protection have been satisfied.
329. The Court notes that Uganda relies on two separate legal bases in its
allegations concerning the maltreatment of persons. With regard to
diplomats, Uganda relies on Article 29 of the Vienna Convention on
Diplomatic Relations. With regard to other Ugandan nationals not enjoying
diplomatic status, Uganda grounds its claim in general rules of
international law relating to diplomatic relations and in the international
minimum standard relating to the treatment of foreign nationals who are
present on a State�s territory. The Court will now address both of these
bases in turn.
330. First, as to alleged acts of maltreatment committed against Ugandan
diplomats finding themselves both within embassy premises and elsewhere, the
Court observes that Uganda�s second counter-claim aims at obtaining
reparation for the injuries suffered by Uganda itself as a result of the
alleged violations by the DRC of Article 29 of the Vienna Convention on
Diplomatic Relations. Therefore Uganda is not exercising diplomatic
protection on behalf of the victims but vindicating its own rights under the
Vienna Convention. Accordingly, the Court finds that the failure to exhaust
local remedies does not pose a barrier to Uganda�s counter-claim under
Article 29 of the Vienna Convention on Diplomatic Relations, and the claim
is thus admissible.
331. As to acts of maltreatment committed against other persons on the
premises of the Ugandan Embassy at the time of the incidents, the Court
observes that the substance of this counter-claim currently before the Court
as a direct claim, brought by Uganda in its sovereign capacity, concerning
its Embassy in Kinshasa, falls within the ambit of Article 22 of the Vienna
Convention on Diplomatic Relations. Consequently, the objection advanced by
the DRC to the admissibility of this part of Uganda�s second counter-claim
cannot be upheld, and this part of the
counter-claim is also admissible.
332. The Court turns now to the part of Uganda�s second counter-claim which
concerns acts of maltreatment by FAC troops of Ugandan nationals not
enjoying diplomatic status who were present at Ndjili International Airport
as they attempted to leave the country.
333. The Court notes that Uganda bases this part of the counter-claim on the
international minimum standard relating to the treatment of foreign
nationals who are present on a State�s territory. The Court thus considers
that this part of Uganda�s counter-claim concerns injury to the
particular individuals in question and does not relate to a violation of an
international obligation by the DRC causing a direct injury to Uganda. The
Court is of the opinion that in presenting this part of the counter-claim
Uganda is attempting to exercise its right to diplomatic protection with
regard to its nationals. It follows that Uganda would need to meet the
conditions necessary for the exercise of diplomatic protection as recognized
in general international law, namely the requirement of Ugandan nationality
of the claimants and the prior exhaustion of local remedies. The Court
observes that no specific documentation can be found in the case file
identifying the individuals concerned as Ugandan nationals. The Court thus
finds that, this condition not being met, Uganda�s counter-claim concerning
the alleged maltreatment of its nationals not enjoying diplomatic status at
Ndjili International Airport is inadmissible.
*
334. Regarding the merits of Uganda�s second counter-claim, the Court finds
that there is sufficient evidence to prove that there were attacks against
the Embassy and acts of maltreatment
against Ugandan diplomats at Ndjili International Airport.
335. The Court observes that various Ugandan diplomatic Notes addressed to
the Congolese Foreign Ministry or to the Congolese Embassy in Kampala make
reference to attacks by Congolese troops against the premises of the Ugandan
Embassy and to the occupation by the latter of the buildings of the
Chancery. In particular, the Court considers important the Note of 18
December 1998 from the Ministry of Foreign Affairs of Uganda to the Ministry
of Foreign Affairs of the DRC, protesting against Congolese actions in
detriment of the Ugandan Chancery and property therein in September and
November 1998, in violation of international law and the 1961 Vienna
Convention on Diplomatic Relations. This Note deserves special attention
because it was sent in duplicate to the Secretary-General of the United
Nations and to the Secretary-General of the OAU, requesting them to urge the
DRC to meet its obligations under the Vienna Convention. The Court takes
particular note of the fact that the DRC did not reject this accusation at
the time at which it was made.
336. Although some of the other evidence is inconclusive or appears to have
been prepared unilaterally for purposes of litigation, the Court was
particularly persuaded by the Status Report on the Residence and Chancery,
jointly prepared by the DRC and Uganda under the Luanda Agreement. The Court
has given special attention to this report, which was prepared on site and
was drawn up with the participation of both Parties. Although the report
does not offer a clear picture regarding the alleged attacks, it does
demonstrate the resulting long-term occupation of the Ugandan Embassy by
Congolese forces.
337. Therefore, the Court finds that, as regards the attacks on Uganda�s
diplomatic premises in Kinshasa, the DRC has breached its obligations under
Article 22 of the Vienna Convention on Diplomatic Relations.
338. Acts of maltreatment by DRC forces of persons within the Ugandan
Embassy were necessarily consequential upon a breach of the inviolability of
the Embassy premises prohibited by Article 22 of the Vienna Convention on
Diplomatic Relations. This is true regardless of whether the persons were or
were not nationals of Uganda or Ugandan diplomats. In so far as the persons
attacked were in fact diplomats, the DRC further breached its obligations
under Article 29 of the Vienna Convention.
339. Finally, there is evidence that some Ugandan diplomats were maltreated
at Ndjili International Airport when leaving the country. The Court
considers that a Note of Protest sent by the Embassy of Uganda to the
Ministry of Foreign Affairs of the DRC on 21 August 1998, i.e. on the day
following the incident, which at the time did not lead to a reply by the DRC
denying the incident, shows that the DRC committed acts of maltreatment of
Ugandan diplomats at Ndjili
International Airport. The fact that the assistance of the dean of the
diplomatic corps (Ambassador of Switzerland) was needed in order to organize
an orderly departure of Ugandan diplomats from the airport is also an
indication that the DRC failed to provide effective protection and treatment
required under international law on diplomatic relations. The Court
therefore finds that, through acts of maltreatment inflicted on Ugandan
diplomats at the airport when they attempted to leave the country, the DRC
acted in violation of its obligations under international law on diplomatic
relations.
340. In summary, the Court concludes that, through the attacks by members of
the Congolese armed forces on the premises of the Ugandan Embassy in
Kinshasa, and their maltreatment of persons who found themselves at the
Embassy at the time of the attacks, the DRC breached its obligations under
Article 22 of the Vienna Convention on Diplomatic Relations. The Court
further concludes that by the maltreatment by members of the Congolese armed
forces of Ugandan diplomats on Embassy premises and at Ndjili International
Airport, the DRC also breached its obligations under Article 29 of the
Vienna Convention.
341. As to the claim concerning Ugandan public property, the Court notes
that the original wording used by Uganda in its Counter-Memorial was that
property belonging to the Government of Uganda and Ugandan diplomats had
been �confiscated�, and that later pleadings referred to �expropriation� of
Ugandan public property. However, there is nothing to suggest that in this
case any confiscation or expropriation took place in the technical sense.
The Court therefore finds neither term suitable in the present context.
Uganda appears rather to be referring to an illegal appropriation in the
general sense of the term. The seizures clearly constitute an unlawful use
of that property, but no valid transfer of the title to the property has
occurred and the DRC has not become, at any point in time, the lawful owner
of such property.
342. Regarding evidentiary issues, the Status Report on the Residence and
Chancery, jointly prepared by the DRC and Uganda under the Luanda Agreement,
provides sufficient evidence for the Court to conclude that Ugandan property
was removed from the premises of the official residence and Chancery. It is
not necessary for the Court to make a determination as to who might have
removed the property reported missing. The Vienna Convention on Diplomatic
Relations not only prohibits any infringements of the inviolability of the
mission by the receiving State itself but also puts the receiving State
under an obligation to prevent others - such as armed militia groups - from
doing so (see United States Diplomatic and Consular Staff in Tehran,
Judgment, I.C.J. Reports 1980, pp. 30-32, paras. 61-67). Therefore, although
the evidence available is insufficient to identify with precision the
individuals who removed Ugandan property, the mere fact that items were
removed is enough to establish that the DRC breached its obligations under
the Vienna Convention on Diplomatic Relations. At this stage, the Court
considers that it has found sufficient evidence to hold that the removal of
Ugandan property violated the rules of international law on diplomatic
relations, whether it was committed by actions of the DRC itself or by the
DRC�s failure to prevent such acts on the part of armed militia groups.
Similarly, the Court need not establish a precise list of items removed - a
point of disagreement between the Parties � in order to conclude at this
stage of the proceedings that the DRC breached its obligations under the
relevant rules of international law. Although these issues will become
important should there be a reparation stage, they are not relevant for the
Court�s finding on the legality or illegality of the acts of the DRC.
343. In addition to the issue of the taking of Ugandan public property
described in paragraph 309, above, Uganda has specifically pleaded that the
removal of �almost all of the documents in their archives and working files�
violates Article 24 of the Vienna Convention on Diplomatic Relations. The
same evidence discussed in paragraph 342 also supports this contention, and
the Court accordingly finds the DRC in violation of its obligations under
Article 24 of the Vienna Convention.
344. The Court notes that, at this stage of the proceedings, it suffices for
it to state that the DRC bears responsibility for the breach of the
inviolability of the diplomatic premises, the maltreatment of Ugandan
diplomats at the Ugandan Embassy in Kinshasa, the maltreatment of Ugandan
diplomats at Ndjili International Airport, and for attacks on and seizure of
property and
archives from Ugandan diplomatic premises, in violation of international law
on diplomatic relations. It would only be at a subsequent phase, failing an
agreement between the Parties, that the specific circumstances of these
violations as well as the precise damage suffered by Uganda and the extent
of the reparation to which it is entitled would have to be demonstrated.
***
345. For these reasons,
THE COURT,
(1) By sixteen votes to one,
Finds that the Republic of Uganda, by engaging in military activities
against the Democratic Republic of the Congo on the latter�s territory, by
occupying Ituri and by actively extending military, logistic, economic and
financial support to irregular forces having operated on the territory of
the DRC, violated the principle of non-use of force in international
relations and the principle of non-intervention;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judge ad hoc Verhoeven;
AGAINST: Judge ad hoc Kateka;
(2) Unanimously,
Finds admissible the claim submitted by the Democratic Republic of the Congo
relating to alleged violations by the Republic of Uganda of its obligations
under international human rights law and international humanitarian law in
the course of hostilities between Ugandan and Rwandan military forces in
Kisangani;
(3) By sixteen votes to one,
Finds that the Republic of Uganda, by the conduct of its armed forces, which
committed acts of killing, torture and other forms of inhumane treatment of
the Congolese civilian population, destroyed villages and civilian
buildings, failed to distinguish between civilian and military targets and
to protect the civilian population in fighting with other combatants,
trained child soldiers, incited ethnic conflict and failed to take measures
to put an end to such conflict; as well as by its failure, as an occupying
Power, to take measures to respect and ensure respect for human rights and
international humanitarian law in Ituri district, violated its obligations
under international human rights law and international humanitarian law;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judge ad hoc Verhoeven;
AGAINST: Judge ad hoc Kateka;
(4) By sixteen votes to one,
Finds that the Republic of Uganda, by acts of looting, plundering and
exploitation of Congolese natural resources committed by members of the
Ugandan armed forces in the territory of the Democratic Republic of the
Congo and by its failure to comply with its obligations as an occupying
Power in Ituri district to prevent acts of looting, plundering and
exploitation of Congolese natural resources, violated obligations owed to
the Democratic Republic of the Congo
under international law;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judge ad hoc Verhoeven;
AGAINST: Judge ad hoc Kateka;
(5) Unanimously,
Finds that the Republic of Uganda is under obligation to make reparation to
the Democratic Republic of the Congo for the injury caused;
(6) Unanimously,
Decides that, failing agreement between the Parties, the question of
reparation due to the Democratic Republic of the Congo shall be settled by
the Court, and reserves for this purpose the
subsequent procedure in the case;
(7) By fifteen votes to two,
Finds that the Republic of Uganda did not comply with the Order of the Court
on provisional measures of 1 July 2000;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada, Simma, Tomka, Abraham; Judge ad hoc Verhoeven;
AGAINST: Judge Kooijmans; Judge ad hoc Kateka;
(8) Unanimously,
Rejects the objections of the Democratic Republic of the Congo to the
admissibility of the first counter-claim submitted by the Republic of
Uganda;
(9) By fourteen votes to three,
Finds that the first counter-claim submitted by the Republic of Uganda
cannot be upheld;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Rezek, Al-Khasawneh, Buergenthal,
Elaraby, Owada, Simma, Abraham; Judge ad hoc Verhoeven;
AGAINST: Judges Kooijmans, Tomka; Judge ad hoc Kateka;
(10) Unanimously,
Rejects the objection of the Democratic Republic of the Congo to the
admissibility of the part of the second counter-claim submitted by the
Republic of Uganda relating to the breach of the Vienna Convention on
Diplomatic Relations of 1961;
(11) By sixteen votes to one,
Upholds the objection of the Democratic Republic of the Congo to the
admissibility of the part of the second counter-claim submitted by the
Republic of Uganda relating to the maltreatment of individuals other than
Ugandan diplomats at Ndjili International Airport on 20 August 1998;
IN FAVOUR: President Shi; Vice-President Ranjeva; Judges Koroma,
Vereshchetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh,
Buergenthal, Elaraby, Owada, Simma, Tomka, Abraham; Judge ad hoc Verhoeven;
AGAINST: Judge ad hoc Kateka;
(12) Unanimously,
Finds that the Democratic Republic of the Congo, by the conduct of its armed
forces, which attacked the Ugandan Embassy in Kinshasa, maltreated Ugandan
diplomats and other individuals
on the Embassy premises, maltreated Ugandan diplomats at Ndjili
International Airport, as well as by its failure to provide the Ugandan
Embassy and Ugandan diplomats with effective protection and by its failure
to prevent archives and Ugandan property from being seized from the premises
of the Ugandan Embassy, violated obligations owed to the Republic of Uganda
under the Vienna Convention on Diplomatic Relations of 1961;
(13) Unanimously,
Finds that the Democratic Republic of the Congo is under obligation to make
reparation to the Republic of Uganda for the injury caused;
(14) Unanimously,
Decides that, failing agreement between the Parties, the question of
reparation due to the Republic of Uganda shall be settled by the Court, and
reserves for this purpose the subsequent
procedure in the case.
Done in English and in French, the English text being authoritative, at the
Peace Palace, The Hague, this nineteenth day of December, two thousand and
five, in three copies, one of which will be placed in the 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) SHI Jiuyong,
President.
(Signed) Philippe COUVREUR,
Registrar.
Judge KOROMA appends a declaration to the Judgment of the Court;
Judges PARRA-ARANGUREN, KOOIJMANS, ELARABY and SIMMA append separate
opinions to the Judgment of the Court; Judge TOMKA and Judge ad hoc
VERHOEVEN append declarations to the Judgment of the Court; Judge ad hoc
KATEKA appends a dissenting opinion to the Judgment of the Court.
(Initialled) J.Y.S.
(Initialled) Ph.C.
DECLARATION OF JUDGE KOROMA
The Court has found Uganda in violation of a wide range of legal instruments
to which it is a party - Rejection of claim of self-defence - Article 3 (g)
of the Definition of Aggression of 1974 (XXIX) - Non-attributability of
attacks by rebel groups reaffirms the Court�s earlier jurisprudence and is
consistent with Article 51 of the Charter - Customary law character of
General Assembly resolution 1803 (XVII) of 14 December 1962 - Article 21 of
the African Charter on Human and Peoples� Rights of 1981 - Findings of the
Court are in general accordance with determinations made by the Security
Council in its resolutions on this dispute - Principle of pacta sunt
servanda.
1. The circumstances and consequences of this case involving the loss of
between three and four million human lives and other suffering have made it
one of the most tragic and compelling to come before this Court.
2. Uganda stands accused by the Democratic Republic of the Congo (DRC) of an
act of aggression within the meaning of Article I of the Definition of
Aggression set out in General Assembly resolution 3314 (XXIX) of 14 December
1974, and in contravention of Article 2, paragraph 4, of the United Nations
Charter. Uganda is further accused of 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
and of committing massive violation of human rights in the conflict zones in
breach of international human rights law.
3. The Court has found that the Republic of Uganda:
- by engaging in military activities against the DRC and by actively
extending military, logistic, economic and financial support to irregular
forces having operated on the territory of the Congo, violated the principle
of non-use of force in international relations and the principle of
non-intervention;
- by the conduct of its armed forces, which committed acts of killing,
torture and other forms of inhumane treatment of the Congolese civilian
population, destroyed villages and civilian buildings, failed to distinguish
between civilian and military targets and to protect the civilian population
in fighting with other combatants, trained child soldiers, incited ethnic
conflict and failed to take measures to put an end to such conflict, as well
as by its failure to take measures to respect and ensure respect for human
rights and international humanitarian law in the Congo, violated its
obligations under international human rights law and international
humanitarian law; and
- by acts of looting, plundering and exploitation of Congolese natural
resources committed by members of Ugandan armed forces in the territory of
the DRC, and by its failure to comply with its obligations as an occupying
Power in Ituri District to prevent acts of looting, plundering and
exploitation of Congolese natural resources, violated obligations owed to
the DRC under international law.
4. These violations found by the Court are very serious breaches of
international law and are compounded by the gravity of this case and the
human tragedy underlying it. In effect, the Court�s findings confirm that
Uganda has been in violation of its obligations under the following
international legal instruments: Article 2, paragraph 4 , of the United
Nations Charter, prohibiting the use of force by States in their
international relations; the Charter of the Organization of African Unity
(OAU), which obliges all States to respect the sovereignty and territorial
integrity of one another, to resolve disputes between them by peaceful
means, and to refrain from interfering ineach other�s internal affairs; the
Regulations respecting the Laws and Customs of War on Land annexed to the
Fourth Hague Convention of 18 October 1907; the Fourth Geneva Convention
relative to the Protection of Civilian Persons in Time of War of 12 August
1949; Protocol I Additional to the Geneva Conventions of 12 August 1949; the
International Covenant on Civil and Political Rights of 19 December 1966;
the African Charter on Human and Peoples� Rights of 27 June 1981; the
Convention on the Rights of the Child of 20 November 1989; and the Optional
Protocol to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict, all of which are binding on Uganda.
5. More specifically, the Court found that acts committed by the Uganda
Peoples� Defence Forces (UPDF) itself and by officers and soldiers in it
were in clear violation of the provisions of
international humanitarian law and human rights instruments to which both
Uganda and the Congo are parties, as well as of international customary law,
in particular:
- the Hague Regulations, Articles 25, 27, 28, 43, 46 and 47, with regard to
the obligations of an occupying Power;
- the Fourth Geneva Convention, Articles 27, 32 and 53, also with regard to
the obligations of an
occupying Power;
- the International Covenant on Civil and Political Rights, Articles 6,
paragraph 1, and 7;
- the First Protocol Additional to the Geneva Conventions of 12 August 1949,
Articles 48, 51, 52, 57, 58 and 75, paragraphs 1 and 2;
- the African Charter on Human and Peoples� Rights, Articles 4 and 5;
- the Convention on the Rights of the Child, Article 38, paragraphs 2 and 3;
- the Optional Protocol to the Convention on the Rights of the Child,
Articles 1, 2, 3, paragraph 3, 4, 5 and 6.
In a nutshell, Uganda has been found responsible for illegal use of force,
violation of sovereignty
and territorial integrity, military intervention, violation of human rights
and international humanitarian law, looting, plunder and exploitation of the
Congo�s natural resources, causing injury to the Congo as well as to
Congolese citizens. Thus Uganda has been found in breach of a wide range of
legal instruments to which it is a party and, according to the evidence
before the Court, the violations gave rise to the most egregious of
consequences. The non-fulfilment of obligations by a State entails
international responsibility.
6. Not only are the international Conventions violated by Uganda binding on
it, but they are intended to uphold the rule of law between neighbouring
States and constitute the foundation on which the existing international
legal order is constructed. They oblige States to conduct their relations in
accordance with civilized behaviour and modern values - to refrain from the
use of military force, to respect territorial integrity, to solve
international disputes by peaceful means, and to respect human rights, human
dignity, and international humanitarian law. Under the international
humanitarian law and international human rights instruments mentioned above,
Uganda was obliged to refrain from carrying out attacks against civilians,
to ensure humane treatment of them and even of combatants caught up in
military conflict, and to respect the most basic of their rights, the right
to life. In this regard, Article 1 of the Fourth Geneva Convention
stipulates that: �The High Contracting Parties undertake to respect and to
ensure respect for the present Convention in all circumstances.� (Emphasis
added.) Article 2 of the Convention provides that:
�In addition to the provisions which shall be implemented in peace-time, the
present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them.�
(Emphasis added.)
Article 27 states:
�Protected persons are entitled, in all circumstances, to respect for their
persons, their honour, their family rights . . . They shall at all times be
humanely treated, and shall be protected . . . against all acts of violence
. .
Women shall be especially protected against any attack on their honour, in
particular against rape . . . or any form of indecent assault.�
According to Article 51 of Additional Protocol I to the 1949 Geneva
Conventions:
�1. The civilian population and individual civilians shall enjoy general
protection against dangers arising from military operations . . .
2. The civilian population as such, as well as individual civilians, shall
not be the object of attack. Acts or threats of violence the primary purpose
of which is to spread terror among the civilian population are prohibited.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
4. Indiscriminate attacks [against civilians] are prohibited . . .�
In other words, in the course of a military conflict, civilians should be
spared unnecessary violence, including massacres and other atrocities such
as those allegedly perpetrated by the UPDF. Furthermore, according to
Article 3 of the 1989 Convention on the Rights of the Child, to which Uganda
is also a party, in all actions concerning children, the primary
consideration must be the best interests of the child. Article 19 provides
that States parties agree to take all appropriate measures to protect the
child from all forms of physical and mental violence, while Article 38 of
the Convention provides that States parties undertake to respect and to
ensure respect for the rules of international humanitarian law applicable to
them in armed conflicts which are relevant to the child. States parties to
the Convention must take all feasible measures to ensure that persons who
have not attained the age of 15 years do not take part in direct
hostilities. Yet, according to the evidence before the Court, these
obligations were wantonly flouted during the UPDF�s military campaign in the
Congo, as children were recruited as child soldiers to take part in the
fighting.
7. The Court thus reached the justifiable conclusion that Uganda repeatedly
and egregiously transgressed both the jus ad bellum and jus in bello,
illegally used force and violated the rules of
international humanitarian law.
8. Crucially and for very cogent reasons, the Court has rejected, under both
Article 51 of the United Nations Charter and customary international law,
Uganda�s contention that it acted in self-defence in using military force in
the Congo. Uganda argued, inter alia, that the Congo was responsible for the
armed attacks by various rebel groups and was therefore guilty of aggression
under the conditions set forth in the Definition of Aggression of 1974
(XXIX) in Article 3, paragraph (g), which provides that:
�Any of the following acts, regardless of a declaration of war, shall,
subject to and in accordance with the provisions of article 2, qualify as an
act of aggression:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
(g) The sending by or on behalf of a State of armed bands, groups,
irregulars or mercenaries, which carry out acts of armed force against
another State of such gravity as to amount to the acts listed above, or its
substantial involvement therein.�
The Court rejected the contention, observing that: Uganda never claimed that
it had been thevictim of an armed attack by the armed forces of the DRC; the
�armed attacks� to which reference was made came rather from the ADF; there
was no satisfactory proof of the involvement in these attacks, direct or
indirect, of the Government of the DRC; and the attacks did not emanate from
armed bands or irregulars sent by the DRC, or on behalf of the DRC, within
the meaning of Article 3 (g) of General Assembly resolution 3314 (XXIX) of
1974 on the Definition of Aggression. The Court concluded that, on the basis
of the evidence before it, even if the series of deplorable attacks could be
regarded as cumulative in character, they still remained non-attributable to
the DRC.
9. This finding is also consistent with the jurisprudence of the Court. In
the case concerning Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), the Court stressed the
need to recognize a distinction between cases of armed attack and �other
less grave forms� of the use of force (Merits, Judgment, I.C.J. Reports
1986, p. 101, para. 191). This distinction was reaffirmed by the Court in
2003 in the case concerning Oil Platforms (Islamic Republic of Iran v.
United States of America). According to the Court, it is necessary to
distinguish between a State�s massive support for armed groups, including
deliberately allowing them access to its territory, and a State�s enabling
groups of this type to act
against another State. Only the first hypothesis could be characterized as
an �armed attack� within the meaning of Article 51 of the Charter, thus
justifying a unilateral response. Although the second would engage the
international responsibility of the State concerned, it constitutes no more
than a �breach of the peace�, enabling the Security Council to take action
pursuant to Chapter VII of the Charter, without, however, creating an
entitlement to unilateral response based on self-defence. In other words, if
a State is powerless to put an end to the armed activities of rebel groups
despite the fact that it opposes them, that is not tantamount to use of
armed force by that State, but a threat to the peace which calls for action
by the Security Council. In my opinion, this interpretation is consistent
with Article 51 of the Charter and represents the existing law.
10. However, according to the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance
with the Charter of the United
Nations (General Assembly resolution 2625 (XXV)):
�no State shall organize, assist, foment, finance, incite or tolerate
subversive, terroristor armed activities directed towards the violent
overthrow of the régime of anotherState, or interfere in civil strife in
another State�.
Uganda, in the course of the proceedings, acknowledged that it had supported
one of the Congoleserebel movements, explaining, inter alia, that it gave
�just enough� military support to themovement to help Uganda achieve its
objectives of driving out Sudanese and Chadian forces from the Congo and of
taking over the airfields between Gbadolite and the Ugandan border and that
its support was not directed at the overthrow of the President of the Congo.
The Court notes that even if Uganda�s activities were in support of its
perceived security needs, it necessarily still violated the principles of
international law.
11. Another issue that was pleaded before the Court relates to permanent
sovereignty over natural resources. The Court�s acknowledgment of the
customary law character of General Assembly resolution 1803 (XVII) of 14
December 1962, on permanent sovereignty over natural resources, is not
without significance, for, although the Court has decided that it is the
Hague Regulations of 1907 as well as the Fourth Geneva Convention of 1949
which lay down the rules according to which Uganda�s conduct must be judged,
resolution 1803 (XVII), it should be recalled, confirmed the �right of
peoples and nations to permanent sovereignty over their natural wealth and
resources�. It makes clear that such resources should be exploited �in the
interest of
the well-being of the people of the State concerned�. These rights and
interests remain in effect at all times, including during armed conflict and
during occupation. The Security Council in resolution 1291 (2000) reaffirmed
the sovereignty of the DRC over its natural resources, and noted with
concern reports of the illegal exploitation of the country�s assets and the
potential consequences of these actions on the security conditions and
continuation of hostilities. Accordingly, in my view, the exploitation of
the natural resources of a State by the forces of occupation contravenes the
principle of permanent sovereignty over natural resources, as well as
the Hague Regulations of 1907 and the Fourth Geneva Convention of 1949.
Moreover, both the DRC and Uganda are parties to the African Charter on
Human and Peoples� Rights of 1981, which stipulates that:
�All peoples shall freely dispose of their wealth and natural resources.
This right shall be exercised in the exclusive interest of the people. In no
case shall a people be deprived of it.� (Art. 21, para. 1; emphasis added.)
12. It is noteworthy that the findings of the Court, a judicial organ, are
in the main in tandem with determinations made earlier by the Security
Council in its resolutions on this dispute. In its resolution 1234 (1999)
the Council implicitly considered the Congo, not Uganda, to be in a
situation of self-defence. In that resolution, the Council not only recalled
the inherent right of individual or collective self-defence under Article 51
of the United Nations Charter, but also deplored the continuing fighting and
the presence of forces of foreign States in the DRC in a manner inconsistent
with the principles of the United Nations Charter, and called upon those
States to bring to an end the presence of uninvited forces. In its
resolution 1291 (2000) the Council called for the orderly withdrawal of all
foreign forces from the Congo in accordance with the Lusaka Ceasefire
Agreement (1999). The Council also called on all parties to the conflict in
the DRC to protect human rights and respect international humanitarian law
and the Convention on the Prevention and Punishment of the Crime of Genocide
of 1948. Acting under Chapter VII of the Charter the Council, in resolution
1304 (2000), confirmed that Uganda and Rwanda had violated the sovereignty
and territorial integrity of the DRC and demanded that they withdraw all
their forces from the DRC without further delay, and called on all parties
to the conflict to protect human rights and respect international
humanitarian law.
13. On the other hand, the Court has found the DRC to have been in breach of
its obligations to Uganda under the Vienna Convention on Diplomatic
Relations of 1961 because of its maltreatment of Ugandan diplomats and other
individuals. In other words, the Congo, even when
acting in self-defence,
�is not relieved from fulfilling its obligations:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
(b) To respect the inviolability of diplomatic or consular agents, premises,
archives and documents.� (Responsibility of States for Internationally
Wrongful Acts, United Nations, Official Records of the General Assembly,
Fifty-sixth Session, Supplement No. 10, United Nations doc. A/56/10 (2001),
Draft Art. 50, para. 2 (b) and Commentary.)
Thus the findings of the Court have been carefully considered and reasoned.
Had Uganda respected its obligations under the United Nations Charter not to
resort to force in its disputes - political or otherwise - with the DRC, its
obligations under the OAU Charter to settle its disputes
by peaceful means, its obligations under international human rights
instruments and international
humanitarian law to respect the human rights and dignity of Congolese
citizens and not to treat the civilian population inhumanely during its
military incursion, and had the UPDF respected its obligation not to exploit
the natural wealth and resources of the territory under occupation, the
ensuing human tragedy could have been prevented or at least not aggravated.
14. If Uganda, above all, had respected the fundamental and customary law
principle of pacta sunt servanda - requiring a State to comply with its
obligations under a treaty � the tragedy so vividly put before the Court
would not, at least, have been compounded. Observance of treaty obligations
is not only moral, but serves an important role in maintaining peace and
security between neighbouring States and in preventing military conflicts
between them. Respect for this Judgment should contribute to putting an end
to this tragedy.
15. It is, inter alia, against this background that I have voted in favour
of the Judgment.
(Signed) Abdul G. KOROMA.
SEPARATE OPINION OF JUDGE PARRA-ARANGUREN
Time-limits on Uganda�s violation of international law by its military
actions in DRCterritory - Sudan�s role - Uganda�s assistance to former
irregular forces - Uganda not an occupying Power in Kibali-Ituri district -
Articles 42 and 43 of the Hague Regulations of 1907 not applicable to
Uganda�s military presence in Kibali-Ituri district.
1. My vote in favour of the Judgment does not mean that I agree with all the
findings of its operative part nor that I concur with each and every part of
the reasoning followed by the majority of the Court in reaching its
conclusions.
I
2. In paragraph 345 (1) of the operative part of the Judgment, the Court
�Finds that the Republic of Uganda, by engaging in military activities
against the Democratic Republic of the Congo . . violated the principle of
non-use of force in international relations and the principle of
non-intervention.�
3. I agree that the Republic of Uganda (hereinafter referred to as �Uganda�)
violated the principle of non-use of force in international relations and
the principle of non-intervention by engaging in military activities against
the Democratic Republic of the Congo (hereinafter referred to as the �DRC�)
between 7 and 8 August 1998 and 10 July 1999, for the reasons explained in
the Judgment; but I disagree with the finding that the violation continued
from 10 July 1999 until 2 June 2003, when Ugandan troops withdrew from the
DRC territory, because in my opinion the DRC consented during this period to
their presence in its territory, not retroactively but under the terms and
conditions prescribed in the Lusaka Ceasefire Agreement of 10 July 1999, the
Kampala Disengagement Plan of 8 April 2000, the Harare Disengagement Plan of
6 December 2000 and the Luanda Agreement of 6 September 2002, as amended in
the Dar es Salaam Agreement of 10 February 2003.
4. The Judgment states that the Lusaka Ceasefire Agreement does not refer to
�consent� (paragraph 95) and that it goes beyond the mere ordering of the
Parties to cease hostilities, providing a framework to facilitate the
orderly withdrawal of all foreign forces to a stable and secure environment,
but carrying no implication as to the Ugandan military presence having been
accepted as lawful (paragraph 97). It also explains:
�The Agreement took as its starting point the realities on the ground. Among
those realities were the major Ugandan military deployment across vast areas
of the DRC and the massive loss of life over the preceding months. The
arrangements made at Lusaka, to progress towards withdrawal of foreign
forces and an eventual peace, with security for all concerned, were directed
at these factors on the ground and at the realities of the unstable
political and security situation. The provisions of the Lusaka Agreement
thus represented an agreed modus operandi for the parties. They stipulated
how the parties should move forward. They did not purport to qualify the
Ugandan military presence in legal terms. In accepting this modus operandi
the DRC did not �consent� to the presence of Ugandan troops. It simply
concurred that there should be a process to end that reality in an orderly
fashion. The DRC was willing to proceed from the situation on the ground as
it existed and in the manner agreed as most likely to secure the result of a
withdrawal of foreign troops in a stable environment. But it did not thereby
recognize the situation on the ground as legal, either before the Lusaka
Agreement or in the period that would pass until the fulfilment of its
terms.� (Judgment, paragraph 99.)
5. The Judgment adds in paragraph 101:
�This conclusion as to the effect of the Lusaka Agreement upon the legality
ofthe presence of Ugandan troops on Congolese territory did not change with
the revisions to the timetable that became necessary. The Kampala
Disengagement Plan of 8 April 2000 and the Harare Disengagement Plan of 6
December 2000 provided for new schedules for withdrawal, it having become
apparent that the original schedule in the Annex to the Lusaka Agreement was
unrealistic. While the status of Ugandan troops remained unchanged, the
delay in relation to the D-Day plus 180 days envisaged in the Lusaka
Agreement likewise did not change the legal status of thepresence of Uganda,
all parties having agreed to these delays to the withdrawal calendar.�
6. In respect to the Luanda Agreement the Judgment states that none of its
elements
�purport generally to determine that Ugandan forces had been legally present
on the territory of the DRC. The Luanda Agreement revised the modus operandi
for achieving the withdrawal of Ugandan forces in a stable security
situation. It was now agreed - without reference to whether or not Ugandan
forces had been present in the area when the agreement was signed, and to
whether any such presence was lawful - that their presence on Mount
Ruwenzori should be authorized, if need be, after the withdrawal elsewhere
had been completed until appropriate security mechanisms had been put in
place. The Court observes that this reflects the acknowledgment by both
Parties of Uganda�s security needs in the area, without pronouncing upon the
legality of prior Ugandan military actions there or elsewhere.� (Paragraph
104.)
7. Therefore, the majority of the Court understands that the Lusaka
Ceasefire Agreement did not change the legal status of the presence of
Uganda, i.e., in violation of international law, but at the same time it
considers that Uganda was under an obligation to respect the timetable
agreed upon, as revised in the Kampala Disengagement Plan of 8 April 2000,
the Harare Disengagement Plan of 6 December 2000 and the Luanda Agreement of
6 September 2002.
8. This interpretation of the Lusaka Ceasefire Agreement, the Kampala
Disengagement Plan, the Harare Disengagement Plan and the Luanda Agreement
creates an impossible legal situation for Uganda. On the one hand, if Uganda
complied with its treaty obligations and remained in the territory of the
DRC until the expiration of the timetables agreed upon, Uganda would be in
violation of international law because the legal status of its presence had
not been changed, the status of its military forces in the DRC being a
violation of international law. On the other hand, if Uganda chose not to
violate international law as a consequence of its military presence in the
DRC, and therefore withdrew its troops from the territory of the DRC
otherwise than in accordance with the timetables agreed upon, Uganda would
have violated its treaty obligations, thereby also being in violation of
international law.
9. This reasoning is, in my opinion, persuasive enough not to accept the
very peculiar interpretation advanced in the Judgment of the Lusaka
Ceasefire Agreement, the Kampala Disengagement Plan, the Harare
Disengagement Plan and the Luanda Agreement. Moreover, an examination of the
terms of these instruments leads to a different conclusion.
10. The Lusaka Ceasefire Agreement was signed on 10 July 1999 among the
Republic of Angola, the Democratic Republic of the Congo, the Republic of
Namibia, the Republic of Rwanda, the Republic of Uganda, the Republic of
Zimbabwe, the Congolese Rally for Democracy (RCD) and the Movement for the
Liberation of the Congo (MLC).
11. In my opinion, the DRC consented in the Lusaka Ceasefire Agreement to
the presence in its territory not only of Ugandan troops but of all foreign
forces, as evidenced in the following provisions:
(a) Article III, paragraph 12, prescribes that �[t]he final withdrawal of
all foreign forces from the
national territory of the DRC shall be carried out in accordance with the
Calendar in Annex �B� of this Agreement and a withdrawal schedule to be
prepared by the UN, the OAU and the JMC�, i.e., the Joint Military
Commission to be created as stipulated in Chapter 7 of Annex �A�;
(b) Chapter 4 of Annex �A�, number 4.1, reiterates that �[t]he final orderly
withdrawal of all foreign forces from the national territory of the
Democratic Republic of Congo shall be in accordance with Annex �B� of this
Agreement�, and number 4.2 indicates that �[t]he Joint Military
Commission/OAU and UN shall draw up a definitive schedule for the orderly
withdrawal of all foreign forces from the Democratic Republic of Congo.�;
(c) Chapter 8, Article 8.1, contemplates that a force should be constituted,
facilitated and deployed in the DRC by the United Nations in collaboration
with the Organization of African Unity with the mandate, among others, to
schedule and supervise the withdrawal of all foreign forces (Article 8.2.1);
and
(d) Chapter 11, Article 11.4, stipulates:
�All forces shall be restricted to the declared and recorded locations and
all movements shall be authorised by the JMC, OAU and UN mechanisms. All
forces shall remain in the declared and recorded locations until:
(a) in the case of foreign forces, withdrawal has started in accordance with
JMC/OAU, UN withdrawal schedule;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .�
(e) Annex �B�, number 17 indicates �180 days from the formal signing of the
Ceasefire� as the
deadline for the withdrawal of all foreign forces.
12. The Kampala Disengagement Plan (�Plan for the Disengagement and
Redeployment of Forces in Democratic Republic of Congo (DRC) in Accordance
with the Lusaka Agreement�) was agreed on 8 April 2000 by all the parties to
the Lusaka Ceasefire Agreement. It included
stipulations providing that
�During the process of Disengagement and Redeployment of the forces, in
order to establish a cessation of hostilities, no Party shall threaten or
use force against another Party, and under no circumstances shall any armed
forces of any Party enter into or stay within the territory controlled by
any other Party without the authorization of the JMC and MONUC (Art. 1,
para. 2 (a));
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
The Parties shall comply with the cessation of hostilities in accordance
with Articles 1 and 3 of the Lusaka Cease Fire-Agreement. Each Party shall
ensure that all personnel and organizations with military capability under
its control or within territory under its control, including armed civilian
groups (illegally armed), Armed Groups controlled by or in the pay of one or
other Party comply with this Plan (Art. 1, para. 2 (d));
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
Whilst reserving the right to self-defence, within defended positions, the
Parties shall strictly avoid committing any reprisals, counter-attacks, or
any unilateral actions, in response to violations of this Plan by another
Party. The Parties are to report all alleged violations of the provisions of
this Plan to HQ MONUC and the JMC.� (Art. 2, para. 5.)
13. This last provision is remarkable in reserving the right of self-defence
not only to the signatory States (the DRC, Namibia, Rwanda, Uganda,
Zimbabwe) but also to the rebel movements Congolese Rally for Democracy
(RCD) and the Movement for the Liberation of the Congo (NLC). Therefore it
is not possible to accept the explanation given by the DRC in its letter of
6 May 2005 to the Court that the sole effect of the Lusaka Ceasefire
Agreement was to suspend �the Congo�s power to exercise its right of
self-defence by repelling the armies of the occupying States by force�; the
right of self-defence being also expressly admitted in Article 2, paragraph
5, of the Harare Disengagement Plan.
14. Moreover, the Kampala Disengagement Plan stipulated that the
Disengagement obligation assumed by the parties was based on the assumption
that a ceasefire existed, in order to facilitate the immediate deployment of
MONUC, Phase 2 (Art. 3, para. 7); that �[a] total Cessation of Hostilities
by all Parties� was included among the prerequisites to be met before an
effective disengagement could take place (Art. 3, para. 8 (a)); and that the
Ceasefire Zone was divided in
four areas, as detailed in the map attached as Appendix 2 (Art. 14).
15. Some time later, on 6 December 2000, the Harare Disengagement Plan laid
down the Sub Plans for Disengagement and Redeployment specifying the
obligations in respect to Area A where the MCL, UPDF and FAC and their
allies had declared to be present.
16. Therefore, in my opinion the presence of Ugandan troops in Congolese
territory was consented to by the DRC in the terms stipulated in the Kampala
and Harare Disengagement Plans.
17. The Luanda Agreement came into force upon its signing, on 6 September
2002, and was entitled �Agreement between the Governments of the Democratic
Republic of The Congo and the Republic of Uganda on withdrawal of Ugandan
Troops from the Democratic Republic of The
Congo, Cooperation and Normalisation of Relations between the Two
Countries�.
18. Article 1, paragraph 4, of the Luanda Agreement stipulates: �The Parties
agree that the Ugandan troops shall remain on the slopes of Mt. Ruwenzori
until the Parties put in place security . . . including training and
coordinated patrol of the common border.�
19. The DRC therefore expressly consented in Article 1, paragraph 4, of the
Luanda Agreement to the presence of Ugandan troops on the slopes of Mt.
Ruwenzori. In my opinion, the DRC also consented to their presence in the
places from which they were to be withdrawn in accordance with the detailed
plan stipulated in Annex A, Article 8 of the Luanda Agreement, with special
reference to Beni and Gbadolite (D-5 days), Bunia (the withdrawal of troops
to begin on D-70 days, and to be completed by D-100 days). Moreover this
consent is expressed again in the Amendment signed at Dar es Salaam on 10
February 2003 extending the withdrawal from Bunia,
D-38, to 20 March 2003, this date ultimately being extended to the end of
May 2003. Consequently, the presence of Ugandan troops in Congolese
territory as provided in the Luanda Agreement and in its Amendment of Dar es
Salaam cannot be considered a violation of conventional and customary
international law.
20. For the reasons set out above, it is my opinion that the DRC consented
to the presence of Ugandan troops in its territory from 10 July 1999 until 2
June 2003, under the terms and conditions prescribed in the Lusaka Ceasefire
Agreement of 10 July 1999, the Kampala Disengagement Plan of 8 April 2000,
the Harare Disengagement Plan of 6 December 2000, and the Luanda Agreement
of 6 September 2002, as amended in the Dar es Salaam Amendment of 10
February 2003. Therefore, Uganda�s military presence in the DRC during this
period did not violate the principle of non-use of force in international
relations and the principle of non-intervention.
II
21. Paragraph 130 of the Judgment states
�that it has not been presented with evidence that can safely be relied on
in a court of law to prove that there was an agreement between the DRC and
the Sudan to participate in or support military action against Uganda; or
that any action by the Sudan (of itself factually uncertain) was of such a
character as to justify Uganda�s claim that it was acting in self-defence�.
22. In this respect I wish to make reference to the statement by the Chief
Prosecutor on the Uganda arrest warrants, dated 14 October 2005, because it
is in the public domain and the Court
may ascertain its terms. The statement announces that the pre-trial Chamber
II of the International Criminal Court has unsealed five warrants of arrest
in the Uganda situation, because it considered there to be sufficient
evidence that the concerned persons have committed crimes against humanity
and war crimes; it is recalled therein that the Lord�s Resistance Army (LRA)
has killed, abducted, enslaved and raped the people of northern Uganda for
19 years, that more than 50 missions were made to Uganda, in small groups of
two or three, to investigate the situation, and that among other facts, it
was established that Joseph Kony is the absolute leader of the LRA and that
he directs all of the LRA operations from his bases in the Sudan.
III
23. In paragraph 345 (1) of the operative part of the Judgment the Court
�Finds that the Republic of Uganda . . . by actively extending military,
logistic, economic and financial support to irregular forces having operated
on the territory of the DRC, violated the principle of non-use of force in
international relations and the principle of non-intervention.�
24. It is to be observed that the Lusaka Ceasefire Agreement stipulated the
importance of the solution of the internal conflict in the DRC by
inter-Congolese dialogue. The Government of the DRC, the Rally for the
Congolese Democracy (RCD), the Movement for the Liberation of the Congo
(MLC), the political opposition, the civil society, the Congolese Rally for
Democracy/Movement of Liberation (RCD-NL), the Congolese Rally for
Democratic/National (RDC/N) and the Mai Mai decided, on 16 December 2002 in
Pretoria, to put in place a government of national unity, aiming at national
reconciliation. A calendar was set forth but it was not complied with,
political reconciliation only being implemented through the installation of
a new national government, including leaders of the three armed rebel
organizations and Congolese society; the military forces of these three
rebel groups were fully integrated into the national army and democratic
elections were to be held within two years.
25. While I accept the principles of international law enunciated in General
Assembly resolution 2625 (XXV) (24 October 1970) mentioned in paragraph 162
of the Judgment, they do not, in my view, apply to the present case. As a
consequence of the dialogue among the parties, a new national government was
installed on 1 July 2003 in the DRC with participation of the leaders of the
rebel forces, which were integrated into the Congolese army; this
reconciliation, in my opinion, exonerates Uganda from any possible
international responsibility arising out of the assistance it gave in the
past to the Rally for the Congolese Democracy (RCD) and to the Movement for
the Liberation of the Congo (MLC).
26. A similar situation took place in the Congo not very long ago, when in
May 1997 the Alliance of Democratic Forces for the Liberation of the Congo
(AFGL), with the support of Uganda and Rwanda, overthrew the legal Head of
State of the former Zaire, Marshal Mobutu Ssese Seko, taking control of the
country under the direction of Laurent-Désiré Kabila. I wonder whether
Uganda would have been condemned for this assistance had the Court been
requested by the DRC to make such a declaration after Laurent-Désiré Kabila
legally assumed the Presidency of the country.
IV
27. In paragraph 345 (1) of the operative part of the Judgment the Court
�Finds that the Republic of Uganda . . . by occupying Ituri . . . violated
the principle of non-use of force in international relations and the
principle of non-intervention.�
28. The majority of the Court maintains that customary international law is
reflected in the Regulations Respecting the Laws and Customs of War on Land
annexed to the Fourth Hague Convention of 18 October 1907 (hereinafter �the
Hague Regulations of 1907�) (Judgment, paragraphs 172 and 217). This
statement is noteworthy because occupying Powers have not always complied
with the Hague Regulations of 1907.
29. The Judgment considers applicable Article 42 of the Hague Regulations of
1907 providing that
�A territory is considered as being occupied when it is actually under the
authority of the hostile army.
The occupation extends only to the regions where this authority is
established and capable of being asserted.�
30. The Court therefore examines whether the requirements of Article 42 are
met in the present case, stressing that it must satisfy itself that Ugandan
armed forces in the DRC were not only stationed in particular locations but
that they had substituted their own authority for that of the Congolese
Government (Judgment, paragraph 173).
31. In this respect paragraph 175 of the Judgment states:
�It is not disputed between the Parties that General Kazini, commander of
the Ugandan forces in the DRC, created the new �province of Kibali-Ituri� in
June 1999 and appointed Ms Adèle Lotsove as its Governor. Various sources of
evidence attest to this fact, in particular a letter from General Kazini
dated 18 June 1999, in which he appoints Ms Adèle Lotsove as �provisional
Governor� and gives suggestions with regard to questions of administration
of the new province. This is also supported by material from the Porter
Commission. The Court further notes that the Sixth report of the
Secretary-General on MONUC (S/2001/128 of 12 February 2001) states that,
according to MONUC military observers, the UPDF was in effective control in
Bunia (capital of Ituri district).�
32. These facts are not disputed by Uganda and the majority of the Court
concludes from them that the conduct of General Kazini �is clear evidence of
the fact that Uganda established and exercised authority in Ituri as an
occupying Power� (Judgment, paragraph 176).
33. In my opinion, this conclusion is not acceptable. It is true that
General Kazini, Commander of the Ugandan forces in the DRC, appointed Ms
Adèle Lotsove as �provisional Governor� in charge of the newly created
province of Kibali-Ituri in June 1999, giving her suggestions with regard to
questions of the administration of the province. However, this fact does not
prove that either General Kazini or the appointed Governor were in a
position to exercise, and in fact did exercise, actual authority in the
whole province of Kibali-Ituri. It is also true that the UPDF was in control
in Bunia (capital of Kibali-Ituri district), but control over Bunia does not
imply effective control over the whole province of Kibali-Ituri, just as
control over the capital (Kinsasha) by the Government of the DRC does not
inevitably mean that it actually controls the whole territory of the
country.
34. Therefore, in my opinion, the elements advanced in the Judgment do not
prove that Uganda established and exercised actual authority in the whole
province of Kibali-Ituri, as required in Article 42 of the Hague Regulations
of 1907.
35. In addition, it may be observed that the elements advanced by the DRC to
prove Uganda�s actual control of the whole of Kibali-Ituri province are not
conclusive, for the following reasons:
(a) The DRC�s Application instituting proceedings against Rwanda, filed in
the Registry on 28 May 2002, which is a document in the public domain,
states in paragraph 5 of the section entitled Statement of Facts, under the
heading �Armed Aggression�:
�5. Since 2 August 1995, Rwandan troops have occupied a significant part of
the eastern Democratic Republic of the Congo, notably in the provinces of
Nord-Kivu, Sud-Kivu, Katanga, Kasai Oriental, Kasai Occidental, and Maniema
and in Orientale Province, committing atrocities of all kinds there with
total impunity.� (Armed Activities on the Territory of the Congo (New
Application: 2002), I. Statement of Facts; A. Armed Aggression, p. 7.)
36. Consequently, in this statement �against interest� the DRC maintains
that Rwanda occupied Orientale province from August 1995 until the end of
May 2002, the date of its new Application to the Court, and Orientale
province included the territories of what was to become Kibali-Ituri
province in 1999. Therefore, the DRC considered Rwanda as the occupying
Power of those territories, including the territories of Kibali-Ituri, and
gave no indication in its Application that the occupation by Rwanda came to
an end after the creation of Kibali-Ituri province.
(b) The special report on the events in Ituri, January 2002 to December
2003, prepared by the United Nations Organization Mission in the Democratic
Republic of the Congo (MONUC), and distributed on 16 July 2004 (hereinafter
the �2004 MONUC report�) dedicates the following special paragraph to the
role of Rwanda:
�On 6 January 2003, RCD-Goma, a Congolese rebel movement supported by
Rwanda, announced an alliance with UPC. Rwanda had become involved in the
Ituri crisis much earlier, however. The Chief of Staff of the Rwandan army,
James Kabarebe Kagunda, was reportedly the biggest advocate of Rwandan
support to Hema militia and was in contact with Chief Kawa, who negotiated
the arms supplies in June 2002. Rwanda reportedly supplied arms by airdrop
to the UPC camps located in Mandro, Tchomia, Bule, Bulukwa and Dhego and
sent military experts to train Hema militias, including child soldiers.
Moreover, some UPC elements (estimated at 150) went for training in Rwanda
from September to December 2002. On 31 December 2002, Thomas Lubanga visited
Kigali for the first time. Kigali also facilitated the transport to Ituri of
PRA elements, earlier trained in Rwanda, and used some Kinyarwanda-speaking
Congolese to organize this support. One ex-UPDF sector Commander of Ituri,
Colonel Muzora, who had left the Ugandan army to join the Rwandan forces,
was seen by several witnesses in the UPC camps, mainly to orient the
newcomers from Rwanda. Practically all witnesses interviewed by MONUC
believe that Rwandan nationals occupied posts in UPC military commands.
MONUC obtained testimonies about adults and children being trained in Rwanda
and being sent through Goma, in 2002 and 2003, to fight in Ituri with UPC.
It also appears that, when Thomas Lubanga and other high-ranking UPC
officers fled from Ituri in March 2003, they were evacuated by air to
Rwanda. Arms and ammunition were then supplied from Rwanda to UPC by air
before UPC retook Bunia in May 2003. On 11 and 12 May 2003, two aircraft
landed at Dhego - not far from Mongbwalu � from Rwanda, with grenades,
rocket-propelled grenades, mortars and ammunition. The first of the aircraft
was also carrying back Lubanga and Bosco from Kigali.� (Special report on
the events in Ituri, January 2002-December 2003 prepared by the United
Nations Organization Mission in the Democratic Republic of the Congo
(MONUC), 16 July 2004, para. 29.)
37. The 2004 MONUC report describes the role of the pre-transitional
Government of Kinshasa in the following terms:
�Until 2002, the pre-transition Government in Kinshasa was hardly involved
in Ituri. Its first delegation arrived in Bunia in August 2002, after a
visit to Kampala. During a second visit, on 29 August 2002, the Minister for
Human Rights, Ntumba Lwaba, was abducted by Hema militia and freed only
after three days in exchange for the release of Lubanga and several UPC
members who had been arrested in Kampala and transferred to Kinshasa. Early
in 2002, the involvement of the Kinshasa Government centred on military
assistance that it provided to RCD-ML in Beni. Kinshasa sent trainers,
weapons and also some military elements, allegedly amounting to four
battalions, in support of APC, which reportedly was sending weapon supplies
from Beni to Lendu militia. FAC and APC were also named by eyewitnesses and
victims as parties in some attacks on Hema villages. It is alleged that, in
the last three months of 2002, some military supplies may also have been
sent directly to the Lendu militia, notably to Rethy, in Djugu territory.�
(Special report on the events in Ituri, January 2002-December 2003 prepared
by the United Nations Organization Mission in the Democratic Republic of the
Congo (MONUC), 16 July 2004, para. 30.)
38. In respect to the Transitional Government of Kinshasa, the 2004 MONUC
report informs:
�The political initiative of the Transitional Government to calm the tension
in Ituri has focused on the deployment of some judicial and police personnel
and sending official delegations. There have also been a number of press
statements. Apart from the delivery of a humanitarian aid shipment early in
2004, humanitarian aid from the Government to the Ituri victims has been
negligible. More concrete actions and active engagement would be needed to
find a solution to the ongoing crisis. It was planned that the first brigade
of the new national army would be deployed in Ituri before June 2004.
However, there are no guarantees that these troops will receive regular
payments and supplies.� (Special report on the events in Ituri, January
2002-December 2003 prepared by the United Nations Organization Mission in
the Democratic Republic of the Congo (MONUC), 16 July 2004, para. 31.)
39. Additionally, the 2004 MONUC report states that other rebel groups were
acting in Kibali-Ituri province from 1998 to 2003. Annex I lists the
following as armed and political groups involved in the Ituri conflict: (a)
Ituri armed groups: Union des patriotes congolais (UPC); Parti pour l�unité
et la sauvegarde de l�intégrité du Congo (PUSIC); Forces populaires pour la
démocratie au Congo (FPDC); Forces armées du peuple congolais (FAPC); Front
nationaliste intégrationniste (FNI); Front de résistance patriotique de
I�lturi (FRPI); Front pour l�intégration et la paix en Ituri (FIPI); (b)
Regional Political Groups: Mouvement de libération du Congo (MLC);
Rassemblement congolais pour la démocratie (RCD); RCD�Kisangani/Mouvement de
libération (RCD-K/ML); RCD-Nationale (RCD-N).
40. The 2004 MONUC report also describes the activities of Ugandan troops in
the province of Kibali-Ituri but does not state that Ugandan forces actually
controlled or were capable to exercise actual authority in the totality of
its territory.
41. Consequently, as the reliability of the 2004 MONUC report is
�unchallenged� by the DRC, it does not support the conclusion that Uganda�s
authority was actually exercised in the whole territory of Kibali-Ituri
province, as would be required by the 1907 Hague Regulations in order for
Uganda to be considered its occupying Power. On the contrary, the 2004 MONUC
report acknowledges that Rwanda as well as many rebel groups played an
important role in the tragedy
experienced in Kibali-Ituri province.
(c) As evidence of the occupation by Uganda of Kibali-Ituri province, the
DRC has also cited Article 2, paragraph 3, of the 2002 Luanda Agreement,
stating that the parties agree �[t]o work closely together in order to
expedite the pacification of the DRC territories currently under . . .
Uganda[n] control and the normalization of the situation along the common
border�. However, the sentence quoted by the DRC does not indicate that
Uganda controlled the whole of Kibali-Ituri province but rather some
Congolese territories, and for this reason it does not demonstrate that
Uganda was the occupying Power in Kibali-Ituri province.
42. The above considerations, in my opinion, demonstrate that Uganda was not
an occupying Power of the whole of Kibali-Ituri province but of some parts
of it and at different times, as Uganda itself acknowledges. Therefore, it
is for the DRC in the second phase of the present proceedings to demonstrate
in respect of each one of the illegal acts violating human rights and
humanitarian law, and each one of the illegal acts of looting, plundering
and exploitation of Congolese natural resources it complains of, that it was
committed by Uganda or in an area under Uganda�s occupation at the time.
43. Additionally it is to be observed that rebel groups existed in the
province of Kibali-Ituri before May 1997, when Marshal Mobutu Ssese Seko
governed the former Zaire; they continued to exist after President
Larent-Désiré Kabila came to power and for this reason the DRC expressly
consented to the presence of Ugandan troops in its territory. The Court
itself acknowledges the inability of the DRC to control events along its
border (Judgment, paragraphs 135, 301). Rebel groups were also present
during Uganda�s military actions in the region and continue to be present
even after the withdrawal of Ugandan troops from the territory of the DRC on
2 June 2003, notwithstanding the intensive efforts of the Government of the
DRC, with strong help from the United Nations Organization Mission in the
Democratic Republic of the Congo (MONUC), employing more that 15,000
soldiers, as is a matter of public knowledge.
V
44. As indicated above, the majority of the Court concluded that Uganda was
an occupying Power of Kibali-Ituri province and that for this reason it
�was under an obligation, according to Article 43 of the Hague Regulations
of 1907, to take all the measures in its power to restore, and ensure, as
far as possible, public order and safety in the occupied area, while
respecting, unless absolutely prevented, the laws in force in the DRC. This
obligation comprised the duty to secure respect for the applicable rules of
international human rights law and international humanitarian law, to
protect the inhabitants of the occupied territory against acts of violence,
and not to tolerate such violence by any third party.� (Judgment, paragraph
178.)
45. Article 43 of the Hague Regulations of 1907 states:
�When the legally constituted authority has actually passed into the hands
of the occupant, the latter shall take all measures within his power to
restore and, as far as possible, to insure public order and life, respecting
the laws in force in the countryunless absolutely prevented.�
46. Consequently, application of Article 43 is conditional on the fact that
�legally constituted authority actually passed into the hands of the
occupant�. It is not clear to me how the majority of the Court came to the
conclusion that this requirement was met, because no explanation in this
respect is given in the Judgment.
47. Moreover, the obligation imposed upon the occupying Power by Article 43
is not an obligation of result. An occupying Power is not in violation of
Article 43 for failing to effectively restore public order and life in the
occupied territory, since it is only under the obligation to �take all
measures within his power to restore and as far as possible, to insure
public order and life�. It is an open question whether the nature of this
obligation has been duly taken into account in the Judgment.
48. Furthermore, when dealing with the occupation of the province of
Kibali-Ituri by Uganda, the majority of the Court rarely takes into account
the province�s geographical characteristics in order to determine whether
Uganda complied with its obligation of due diligence under Article 43 of the
Hague Regulations of 1907; but they were considered to exonerate the DRC for
its failure to prevent cross-border actions of anti-Ugandan rebel forces, as
may be observed in the examination of Uganda�s first counter-claim.
(Signed) Gonzalo PARRA-ARANGUREN.
SEPARATE OPINION OF JUDGE KOOIJMANS
1. Although I have voted in favour of most of the findings of the Court as
reflected in the dispositif, I nevertheless feel constrained to make the
following remarks. My main difficulty with the present Judgment is a certain
lack of balance in the description of the dispute and of the relevant facts
even if the conclusions drawn are in my view in general legally correct. I
will therefore start with a number of general remarks and subsequently deal
with certain legal issues with regard to which I would have preferred a
different approach.
A. General remarks
2. In an article entitled �Explaining Ugandan Intervention in Congo:
Evidence and Interpretations�, the author writes:
�[T]o explain the intervention of one State into the affairs of another is
rarely simple or uncontroversial . . . To maintain objectivity in the face
of confusing and contradictory evidence is particularly difficult . . .
Moreover, the results are likely to be tentative, partial and complex, and
therefore less than totally satisfying. One is more likely to end with a
�thick description� of a complex episode than a �scientific� explanation of
a discrete social event.� FN1
------------------------------------------------------------------------------------------------------------
FN1 John
P. Clark, Associate Professor of International Relations, The Journal of
Modern African Studies, Vol. 39 (2001), p. 262.
------------------------------------------------------------------------------------------------------------
3. These cautious words of a social scientist are of limited use for a court
of justice which has to evaluate the legality of certain specific activities
which have been put before it. The task of a judicial body does not allow it
to conclude with a �thick description� of a complex episode but compels it
to come to a clear and unequivocal determination of the legal consequences
of acts committed during that �complex episode�.
4. However, in order to make its legal assessments and conclusions
comprehensible and thereby acceptable to litigant States whose leaders are
no trained lawyers (even though they may be assisted by legal
professionals), but are the main actors in the process of implementing the
judgment, a court should make clear in its reasoning that it is fully aware
of the wider context and the complexity of the issues involved. A judgment
which is not seen as logical and fair in its
historical, political and social dimensions runs the risk of being one
compliance with which will be difficult for the parties.
5. The Parties to the present dispute share a hapless post-decolonization
history. They have been in the grip of merciless dictatorships which
elicited violent resistance and armed rebellions. The overthrow of these
dictatorships (in Uganda in 1986 and the Congo in 1997) did not bring
internal stability; armed groups, either loyal to the previous régime or
pursuing goals of their own and operating from remote parts of their own
territory or from abroad continued to threaten the new leadership. In this
respect the Parties shared the plight which seems to have become endemic in
much of the African continent: régimes under constant threat from armed
movements often operating from the territory of neighbouring States, whose
governments sometimes support such movements but often merely tolerate them
since they do not have the means to control or repel them. The latter case
is one where a government lacks power and consequently fails to exercise
effectively its territorial authority; in short, there is a partial failure
of State authority and such failure is badly concealed by the formal
performance of State functions on the international level. Commitments
entered into by governments unable to implement them are unworthy of
reliance from the very start and hardly contribute to the creation of more
stability.
6. Under such circumstances, the ruling powers may feel left to their own
resources. In order to fight the armed movements operating from abroad,
usually by carrying out hit and run tactics, they often engage in a kind of
hot pursuit onto neighbouring territory since diplomatic demarches
have no effect. They may, moreover, lack all confidence in the good
intentions of the neighbour government in spite of its commitments and this
may, in turn, induce them to support opposition
movements seeking to overthrow that �untrustworthy� government.
7. And so the circle is closed and we find ourselves confronted with a
pattern which is so typical for post-Cold War Africa: governments, harassed
by armed rebel movements often operating from foreign territory, trying to
improve their security by meddling in the affairs of neighbouring States;
governments, moreover, which have sometimes come to power through external
intervention themselves but which, once in power, turn against their former
supporters in order to become master in their own house and to strengthen
their grip on the internal situation.
8. Needless to say, such chronic instability and the ensuing incessant
practice of unrestrained violence lead to immense human suffering. The human
disaster in Rwanda in 1994 is an extreme
example, genocidal in dimension, of a much more general pattern of gross
violations of human rights by warring factions and authorities trying to
remain in power.
9. The organized international community has thus far been unable to provide
structural assistance, necessary to strengthen State institutions, and has
thus failed to lay the basis for an improved security system in the region.
It has mainly limited itself to monitoring the situation, providing a
sometimes robust, but more often impotent, peacekeeping assistance in
war-stricken areas, and to furnishing humanitarian assistance.
10. It is within this framework that the dispute before the Court must be
placed. It is not necessary to describe in detail the crisis as it developed
since the 1994 genocide in Rwanda nor to demonstrate how an increasing
number of States, in the Great Lakes region and even beyond, became
involved. These events have been well documented in various articles and in
a great number of reports from United Nations agencies and non-governmental
organizations FN2. Suffice it to say that the Congo�s eastern border area, a
�line of political instability on which the future of central Africa may
well hinge� (as it was aptly called by David Shearer), occupied a central
place in the crisis. The overall picture is moreover obfuscated by the fact
that, apart from the governments involved, an even greater number of
insurgent movements, sometimes controlled by governments but more often with
shifting alliances, determined and determine the situation on the ground.
---------------------------------------------------------------------------------------------------------------------
FN2
See, i.a., Mel Mc Nulty, �The collapse of Zaire: implosion, revolution or
external sabotage?�, The Journal of Modern African Studies, 37 (1999), pp.
53-82; Gérard Prunier, �Rebel Movements and Proxy Warfare: Uganda, Sudan and
the Congo (1986-1999)�, African Affairs, 103/412, pp. 359-383; John F.
Clark�s article, cited in Note 1; David Shearer, �Africa�s Great War�,
Survival, 41 (1999), pp. 89-106. See also the following reports of the
International Crisis Group: �North Kivu, into the Quagmire?� (15 August
1998); �Congo at War, a Briefing on the Internal and External Players in the
Central African Conflict� (17 November 1998); �How Kabila Lost his Way� (21
May 1999); �Africa�s Seven-Nation War� (21 May 1999); �The Agreement on a
Cease-Fire in the Democratic Republic of Congo� (20 August 1999).
---------------------------------------------------------------------------------------------------------------------
11. Is it possible to extract from this tangled web one element, to isolate
it, to subject it to legal analysis and to arrive at a legal assessment as
to its consequences for the relations between only two of the parties
involved? A court mandated by its Statute to decide disputes between States
whenever it has jurisdiction to do so cannot refrain from carrying out that
mandate on the ground that its judgment would only cover one dispute which
is indissolubly linked to the overall conflict. The system of international
judicial dispute settlement is premised on the existence of a series of
bilateral inter-State disputes, artificial as this sometimes may be, as
became clear, for example in the Legality of the Use of Force cases (the
Federal Republic of Yugoslavia versus ten
individual Member States of NATO).
12. In a slightly different context (different in that the dispute before
the Court was said to represent �a marginal and secondary aspect of an
overall problem� between the Parties) the Court stated that �no provision of
the Statute or Rules contemplates that the Court should decline to take
cognizance of one aspect of a dispute merely because that dispute has other
aspects, however important�. In the present case the latter part of the
sentence could be paraphrased as �merely because that dispute is intricately
linked to a much wider problem which involves other parties as well�. The
Court went on to say that
�never has the view been put forward that, because a legal dispute submitted
to the Court is only one aspect of a political dispute, the Court should
decline to resolve for the parties the legal question at issue between them
. . .; if the Court were, contrary to its settled jurisprudence, to adopt
such a view, it would impose a far-reaching and unwarranted restriction upon
the role of the Court in the peaceful solution of international disputes�
(United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J.
Reports 1980, p. 20, para. 37; emphasis added).
13. The last part of this quotation illustrates the important place assigned
by the Charter to the Court in the context of the peaceful settlement of
disputes, as is clear from Article 36, paragraph 3, in Chapter VI on the
Pacific Settlement of Disputes. The concept of peaceful dispute settlement
is premised on the condition that the parties to a dispute find their
particular position and their specific concerns reflected in the settlement
suggested to or imposed upon them. That settlement must acknowledge those
concerns, even if it fails to satisfy the parties� demands or even censures
their conduct.
14. I regret that the Judgment of the Court in my view falls short of
meeting the standard just mentioned. It inadequately reflects the structural
instability and insecurity in the region, the overall pattern of lawlessness
and disorder and the reprehensible behaviour of all parties involved. A
reading of the Judgment cannot fail to leave the impression that the dispute
is first and foremost a dispute between two neighbouring States about the
use of force and the ensuing excesses, perpetrated by one of them. A
two-dimensional picture may correctly depict the object shown but it lacks
depth and therefore does not reflect reality in full.
15. It is true that in paragraph 26 the Court states that it is aware of the
complexity of the situation which has prevailed in the Great Lakes region
and that the instability in the DRC has had negative security implications
for Uganda and other neighbouring States.
It is also true that in paragraph 221 the Court observes that the actions of
the various Parties in the complex conflict have contributed to the immense
suffering faced by the Congolese population.
But in my view this awareness is insufficiently reflected in the Court�s
consideration of the various claims of the Parties. I will try to
demonstrate this in the sections of this opinion dealing with the right of
self-defence as claimed by Uganda (see B below), Uganda�s first
counter-claim (see D below) and Uganda�s breach of its obligations under the
Order on provisional measures (see E below).
B. Use of force and self-defence
16. I am in full agreement with the Court that, as from the beginning of
August 1998, Uganda could, for the presence of its forces on Congolese
territory, no longer rely on the consent given by the DRC and that its
military activities from that time on thus can only be considered in the
light of the right of self-defence (Judgment, paragraph 106).
17. In the preceding months the initially warm relations between the
Presidents of the DRC and Uganda had soured. In that same period the
frequency and intensity of attacks by Ugandan rebel movements operating from
Congolese territory had increased. In less than two months five attacks of a
serious nature, in which a considerable number of civilians were killed or
abducted,
had taken place (Judgment, paragraph 132). A reoccurrence of the chronic
instability of the pre-1997 period was, in particular after the outbreak of
a rebellion against President Kabila on 2 August, certainly not beyond the
realm of possibility.
18. Uganda chose to react by stepping up its military activities on the
Congolese side of the border. During the month of August the UPDF
successively took the towns and airports of Beni,
Bunia and Watsa, �all in close proximity to the border�. I fully agree with
the Court when it states that these actions were of a different nature from
previous operations along the common border under the informal bilateral
agreement (Judgment, paragraph 110). They were military assaults which could
only be justified under the law of self-defence.
19. Uganda has claimed that the Congolese authorities were actively
supporting the Ugandan rebels in carrying out their attacks but the Court
has not been able to find �satisfactory proof of the involvement in these
attacks, direct or indirect, of the Government of the DRC�. It thus found
that these attacks could not be attributed to the DRC and I cannot fault
this finding. (Judgment, paragraph 146.)
20. The Court consequently finds that �[f]or all these reasons . . . the
legal and factual circumstances for the exercise of the right of
self-defence by Uganda against the DRC were not present�. Then follows,
however, a sentence which is not altogether clear: �Accordingly, the Court
has no need to respond to the contentions of the Parties as to whether and
under what conditions contemporary international law provides for a right of
self-defence against large-scale
attacks by irregular forces.� (Judgment, paragraph 147.)
21. Presumably, the Court refers here to the exchange of arguments between
the Parties whether the threshold, which the Court had previously determined
as appropriate in characterizing support of activities by irregular bands as
an attack by the �supporting� State (Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), Jurisdiction
and Admissibility, Judgment, I.C.J. Reports 1984, p. 104, para. 195), was
still in conformity with contemporary international law.
In the oral pleadings counsel for Uganda contended that
�armed attacks by armed bands whose existence is tolerated by the
territorial sovereign generate legal responsibility and therefore constitute
armed attacks for the purpose of Article 51. And thus, there is a separate,
a super-added standard of responsibility, according to which a failure to
control the activities of armed bands, creates a susceptibility to action in
self-defence by neighbouring States.� (CR 2005/7, p. 30, para. 80.)
The DRC for its part denied that the mere acknowledgment that armed groups
were present on its territory was tantamount to tolerance.
�To assimilate mere tolerance by the territorial sovereign of armed groups
on its territory with an armed attack clearly runs counter to the most
established principles in such matters. That position, which consists in
considerably lowering the threshold required for the establishment of
aggression, obviously finds no support in the Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment.� (CR 2005/12, p. 26, para. 6.)
22. The Court does not deem it necessary at this point to deal with these
contentions since it has found that the attacks by the rebels �did not
emanate from armed bands or irregulars sent by the Congo or on behalf of the
Congo, within the sense of Article 31 (g) of the definition of aggression
adopted by the General Assembly in 1974 (res. 3314)� (emphasis added). By
drawing this conclusion, the Court, however, implicitly rejects Uganda�s
argument that mere tolerance of irregulars �creates a susceptibility to
action in self-defence by neighbouring States�.
23. It deserves mentioning, however, that the Court deals in more explicit
detail with this issue when considering Uganda�s first counter-claim with
regard to the period 1994-1997. The Court there says that it �cannot
conclude that the absence of action by Zaire�s Government againstthe rebel
groups in the border area is tantamount to �tolerating� or �acquiescing� in
their activities� and that �[t]hus the part of Uganda�s first counter-claim
alleging Congolese responsibility for tolerating the rebel groups prior to
May 1997 cannot be upheld.� (Judgment, paragraph 301).
24. I agree that in general it cannot be said that a mere failure to control
the activities of armed bands present on a State�s territory is by itself
tantamount to an act which can be attributed to that State, even though I do
not share the Court�s finding with regard to the first counter-claim. But I
fail to understand why the Court said explicitly there what it only said
implicitly with regard to the DRC�s first claim, notwithstanding that Uganda
raised that very same argument when it contested that claim.
25. What is more important, however, is that the Court refrains from taking
a position with regard to the question whether the threshold set out in the
Nicaragua Judgment is still in conformity with contemporary international
law in spite of the fact that that threshold has been subject to
increasingly severe criticism ever since it was established in 1986. The
Court thus has missed a chance to fine-tune the position it took 20 years
ago in spite of the explicit invitation by one of the Parties to do so.
26. But the sentence quoted in paragraph 20 calls for another comment. Even
if one assumes (as I am inclined to do) that mere failure to control the
activities of armed bands cannot in itself be attributed to the territorial
State as an unlawful act, that in my view does not necessarily mean that the
victim State is under such circumstances not entitled to exercise the right
of self-defence under Article 51. The Court only deals with the question
whether Uganda was entitled to act in self-defence against the DRC and
replies in the negative since the activities of the rebel movements could
not be attributed to the DRC. By doing so, the Court does not answer the
question as to the kind of action a victim State is entitled to take if the
armed operation by irregulars, �because of its scale and effects, would have
been classified as an armed attack rather than as a mere frontier incident
had it been carried out by regular armed forces� (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 103, para.
195) but no involvement of the �host government� can be proved.
27. The Court seems to take the view that Uganda would have only been
entitled to self-defence against the DRC since the right of self-defence is
conditional on an attack being attributable, either directly or indirectly,
to a State. This would be in line with what the Court said in its Advisory
Opinion of 9 July 2004: �Article 51 of the Charter thus recognizes the
existence of an inherent right of self-defence in the case of an armed
attack by one State against another State� (Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, I.C.J.
Reports 2004, p. 194, para. 139; emphasis added).
28. By implicitly sticking to that position, the Court seems to ignore or
even to deny the legal relevance of the question referred to at the end of
paragraph 26.
But, as I already pointed out in my separate opinion to the 2004 Advisory
Opinion on Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Article 51 merely �conditions the exercise of the
inherent right of self-defence on a previous armed attack without saying
that this armed attack must come from another State even if this has been
the generally accepted interpretation for more than 50 years� (I.C.J.
Reports 2004, p. 230, para. 35). I also observed that this interpretation no
longer seems to be shared by the Security Council, since in resolutions 1368
(2001) and 1373 (2001) it recognizes the inherent right of individual or
collective self-defence without making any reference to an armed attack by a
State. In these resolutions the Council called acts of international
terrorism, without any further qualification and without ascribing them to a
particular State, a threat to international peace and security.
29. If the activities of armed bands present on a State�s territory cannot
be attributed to that State, the victim State is not the object of an armed
attack by it. But if the attacks by the irregulars would, because of their
scale and effects, have had to be classified as an armed attack had they
been carried out by regular armed forces, there is nothing in the language
of Article 51 of the Charter that prevents the victim State from exercising
its inherent right of self-defence.
30. When dealing with the first counter-claim in paragraph 301 of the
Judgment, the Court describes a phenomenon which in present-day
international relations has unfortunately become as familiar as terrorism,
viz. the almost complete absence of government authority in the whole or
part of the territory of a State. If armed attacks are carried out by
irregular bands from such territory against a neighbouring State, they are
still armed attacks even if they cannot be attributed to the territorial
State. It would be unreasonable to deny the attacked State the right to
self-defence merely because there is no attacker State, and the Charter does
not so require. �Just as Utopia is entitled to exercise self-defence against
an armed attack by Arcadia, it is equally empowered to defend itself against
armed bands or terrorists operating from within the Arcadian territory�, as
Professor Yoram Dinstein puts it FN3.
---------------------------------------------------------------------------------------------------------------------
FN3 Yoram
Dinstein, War, Aggression and Self-Defence, 3rd. ed., 2002, p. 216.
---------------------------------------------------------------------------------------------------------------------
31. Whether such reaction by the attacked State should be called
self-defence or an act under the state of necessity FN4 or be given a
separate name, for example �extra-territorial law enforcement�, as suggested
by Dinstein himself, is a matter which is not relevant for the present
purpose. The lawfulness of the conduct of the attacked State must be put to
the same test as that applied in the case of a claim of self-defence against
a State: does the armed action by the irregulars amount to an armed attack
and, if so, is the armed action by the attacked State in conformity with the
requirements of necessity and proportionality.
---------------------------------------------------------------------------------------------------------------------
FN4 See
Oscar Schachter, �The Use of Force against Terrorists in Another Country�,
Israel Yearbook on Human Rights, Vol. 19 (1989), p. 225 ff.
---------------------------------------------------------------------------------------------------------------------
32. As for the first question, I am of the view that the series of attacks
which were carried out from June till the beginning of August 1998, and
which are enumerated in paragraph 132 of the Judgment, can be said to have
amounted to an armed attack in the sense of Article 51, thus entitling
Uganda to the exercise of self-defence. Although Uganda, during the
proceedings, persistently claimed that the DRC was directly or indirectly
involved in these attacks, the finding that this allegation cannot be
substantiated and that these attacks are therefore not attributable to the
DRC has no direct legal relevance for the question whether Uganda is
entitled to exercise its right of self-defence.
33. The next question therefore is: was this right of self-defence exercised
in conformity with the rules of international law?
During the month of August 1998 Ugandan military forces seized a number of
towns and airports in an area contiguous to the border-zone where Uganda had
previously operated with the consent of and, according to the Protocol of
April 1998, in co-operation with the DRC.
Taking into account the increased instability and the possibility of a
return to the undesirable conditions of the late Mobutu period, I do not
find these actions unnecessary or disproportionate to the purpose of
repelling the persistent attacks of the Ugandan rebel movements.
34. It was only when Uganda acted upon the invitation of Rwanda and sent a
battalion to occupy the airport of Kisangani - located at a considerable
distance from the border area � on 1 September 1998 that it grossly
overstepped the limits set by customary international law for the
lawful exercise of the right of self-defence.
Not by any stretch of the imagination can this action or any of the
subsequent attacks against a great number of Congolese towns and military
bases be considered as having been necessitated by the protection of
Uganda�s security interests. These actions moreover were grossly
disproportionate to the professed aim of securing Uganda�s border from armed
attacks by anti-Ugandan rebel movements.
35. I therefore fully share the Court�s final conclusion that Uganda�s
military intervention was of such a magnitude and duration that it must be
considered a grave violation of the prohibition on the use of force
expressed in Article 2, paragraph 4, of the Charter (Judgment, paragraph
165).
I feel strongly, however, that the Court, on the basis of the facts and the
arguments presented by the Parties and irrespective of the motives ascribed
to them, should have gone further than merely finding that Uganda had failed
to substantiate its claim that the DRC was directly or indirectly involved
in the attacks by the rebel movements and thus concluding that Uganda was
not entitled to self-defence. In the circumstances of the case and in view
of its complexity, a further legal analysis of Uganda�s position, and the
rights ensuing therefrom, would in my view have been appropriate.
Thus the Court has forgone a precious opportunity to provide clarification
on a number of issues which are of great importance for present-day
international society but still are largely obscure from a legal point of
view.
C. Belligerent occupation
36. The Court is of the view that Uganda must be considered as the occupying
Power, in the sense of the ius in bello, in Ituri district. It further
concludes that it has not been provided with evidence to show that authority
as occupying Power was exercised by Ugandan armed forces in any areas other
than in Ituri district (Judgment, paragraphs 176 and 177).
37. Although I have no difficulty with the Court�s finding with regard to
Ituri district, I have some doubts in respect of the Court�s reasoning
leading to the conclusion that Uganda was not in
the position of an occupying Power in other areas invaded by the UDPF.
38. Article 42 of the 1907 Hague Regulations provides that:
�territory is considered occupied when it is actually placed under the
authority of the hostile army. The occupation extends only to the territory
where such authority has been established and can be exercised.�
To all appearances this definition is based on factual criteria. However, as
Professor Adam Roberts aptly remarks: �The core meaning of the term is
obvious enough; but as usually happens with abstract concepts, its frontiers
are less clear.� FN5
---------------------------------------------------------------------------------------------------------------------
FN5 Adam
Roberts, �What is Military Occupation?�, British Year Book of International
Law 55 (1984), pp. 249-305, at p. 249.
---------------------------------------------------------------------------------------------------------------------
39. The reasons for this lack of clarity may in the first place be of a
factual nature. The situation on the ground is often confused and the
parties involved may present conflicting pictures of this situation. In the
present case, however, the Parties agree to a remarkably great extent on the
localities taken by the UPDF in the relevant period. They differ, however,
considerably on the question whether the places where Ugandan troops were
present, were actually under the authority of Uganda. This is mainly a
factual issue.
40. The lack of clarity may, however, also be due to non-factual
considerations. As one author points out: ��[o]ccupation� has . . . acquired
a pejorative connotation, and as a result, occupants would tend to prefer
euphemistic titles to portray their position� FN6. This author further
observes that at the time of the adoption of the Hague Regulations it was
generally assumed that, upon gaining control, the occupant would establish
its authority over the occupied territory by introducing some kind of direct
and therefore easily identifiable administration. In a period when
war or the use of force as such was not legally objectionable, the notion of
occupation as a term of art was not held in disrepute either. And thus the
establishment of an administrative system by the occupant was seen as quite
normal.
---------------------------------------------------------------------------------------------------------------------
FN6
Eyal Benvenisti, The International Law of Occupation, 1993, p. 212. Roberts
also refers to this phenomenon:
�To many, �occupation� is almost synonymous with aggression and oppression�,
op. cit., p. 301.
---------------------------------------------------------------------------------------------------------------------
41. Partly as a result of the outlawing of war, that practice has become the
exception rather than the rule. Occupants feel more and more inclined to
make use of arrangements where authority is said to be exercised by
transitional governments or rebel movements or where the occupant simply
refrains from establishing an administrative system.
�In these cases, the occupants would tend not to acknowledge the
applicability of the law of occupation to their own or their surrogate�s
activities, and when using surrogate institutions, would deny any
international responsibility for the latter�s actions.� FN7
------------------------------------------------------------------------------------------------------------
FN7Eyal
Benvenisti, op. cit, p. 5.
------------------------------------------------------------------------------------------------------------
42. In the present case, the Court was confronted with both these factual
and non-factual issues. Uganda denied its responsibility under the law of
occupation firstly on the ground that its troops were too thinly spread to
be able to exercise authority. It argued secondly that actual authority was
vested in the Congolese rebel movements, which carried out virtually all
administrative functions.
43. The Court has deemed it its task
�to satisfy itself that the Ugandan armed forces in the DRC were not only
stationed in particular locations but also that they had substituted their
own authority for that of the Congolese Government� (Judgment, paragraph
173; emphasis added).
44. It is in particular this element of �substitution of the occupant�s
authority for that of the territorial power� which leads in my opinion to an
unwarranted narrowing of the criteria of the law of belligerent occupation
as these have been interpreted in customary law since 1907.
45. Article 41 of the �Oxford Manual� adopted in 1880 by the Institut de
droit international already stated:
�Territory is regarded as occupied when, as the consequence of invasions by
hostile forces, the State to which it belongs has ceased, in fact, to
exercise its authority therein, and the invading State is alone in a
position to maintain order there. The limits within which this state of
affairs exists determine the extent and duration of the occupation.�
(Emphasis added.)
It is noteworthy that these criteria have remained virtually unaltered. In
modern national manuals on the law of armed conflict these criteria are
expressed in similar terms; they are, firstly, that
�military occupation presupposes a hostile invasion, resisted or
un-resisted, as a result of which the invader has rendered the invaded
government incapable of exercising its authority, and [secondly] that the
invader is in a position to substitute its own authority for that of the
former government� FN8.
------------------------------------------------------------------------------------------------------------
FN8 United
States Manual on the Law of Land Warfare (1956), FM 27-10. See also, United
Kingdom Manual of the Law of Armed Conflict (2004), p. 275, 11.3.
------------------------------------------------------------------------------------------------------------
46. In the present case the first criterion is certainly met; even if the
actual authority of the DRC government in the north-eastern part of the
country was already decidedly weak before the invasion by the UPDF, that
government indisputably was rendered incapable of exercising the authority
it still had as a result of that invasion. By occupying the nerve centres of
governmental authority - which in the specific geographical circumstances
were the airports and military bases - the UPDF effectively barred the DRC
from exercising its authority over the territories concerned.
47. The Court, without explicitly mentioning this criterion, nevertheless
seems to assume that it has been met. It concentrates, however, on the
second criterion, the actual exercise of authority by the Ugandan armed
forces and concludes that it has not been provided with �any specific
evidence that authority was exercised by [them] in any other areas than in
Ituri district�. It seems to adopt the view that in these areas authority
was exercised by the rebel movements which cannot be considered to have been
controlled by Uganda. (Judgment, paragraph 177.)
48. The Court in my view did not give sufficient consideration to the fact
that it was the Ugandan armed invasion which enabled the Congolese rebel
movements to bring the north-eastern provinces under their control. Had
there been no invasion, the central government would have been in a far
better position to resist these rebel movements. Uganda�s invasion was
therefore crucial for the situation as it developed after the outbreak of
the civil war. As the decisive factor in the elimination of the DRC�s
authority in the invaded area, Uganda actually replaced it with its own
authority.
49. I am, therefore, of the opinion that it is irrelevant from a legal point
of view whether it exercised this authority directly or left much of it to
local forces or local authorities. As long as it
effectively occupied the locations which the DRC Government would have
needed to re-establish its authority, Uganda had effective, and thus
factual, authority. Its argument that it cannot be considered to have been
an effective occupying Power, in view of the limited number of its troops,
cannot therefore be upheld FN9.
---------------------------------------------------------------------------------------------------------------------
FN9
See also Oppenheim-Lauterpacht, International Law, 7th ed., 1962, p. 435:
�When the legitimate sovereign is prevented from exercising his powers, and
the occupant, being able to assert his authority, actually establishes an
administration over a territory, it matters not with what means, and in what
ways, his authority is exercised.� (Emphasis added.)
See also H.P. Gasser, in D. Fleck (ed.), The Handbook of Humanitarian Law in
Armed Conflict, 1995, p. 243:
�Even if the stated strategic goal of an invasion of foreign territory is
not to gain control of the area or its inhabitants, but �merely� to secure
against attacks on the invader�s own territory close to the border, the
invading power still bears responsibility for the parts of the territory
actually controlled. Similarly, neither the claimed short duration of the
occupation nor the absence of military administration for the occupied
territory makes any difference�. (Emphasis added.)
---------------------------------------------------------------------------------------------------------------------
50. As long as Uganda maintained its hold on these locations, it remained
the effective authority and thus the occupying Power, until a new state of
affairs developed. Such a new state of affairs was effected by the Lusaka
Ceasefire Agreement of 10 July 1999. In normal circumstances, a ceasefire
agreement as such does not change the legal situation, at least as long as
the occupying Power remains in control. But the Lusaka Agreement is, as the
Court states,
�more than a mere ceasefire agreement, in that it lays down various
�principles� (Art. III) which cover both the internal situation within the
DRC and its relations with its neighbours�. (Judgment, paragraph 97.)
51. The Lusaka Agreement laid the foundation for the re-establishment of an
integrated Congolese State structure. For this purpose the status of the two
most important rebel movements - the MLC and the RCD - now called the �armed
opposition�, was modified; they became formal participants in the open
national dialogue (Art. III, para. 19). This new position was reflected in
their signing of the agreement as separate parties per the attached list.
52. In my opinion the �upgraded� status of the two rebel movements directly
affected Uganda�s position as occupying Power. These movements had become -
in the formulation of Chapter VI - the two parties who, together with the
central government, had primary responsibility for the re-establishment of
an integrated State administration, as spelled out in paragraph 2 of Chapter
VI.
53. The Lusaka Agreement certainly did not automatically bring to an end
Uganda�s status asoccupying Power since that status is based on control in
fact. The recognition of the formal status of the RCD and MLC cannot,
however, be disregarded.
After Lusaka, territorial authority could no longer be seen as vested
exclusively in the central government but as being shared with �armed
opposition� movements which had been recognized
as part of the national authority.
54. Only in those places where it remained in full and effective control,
like Ituri district, did Uganda retain its status as occupying Power and in
this respect I share the Court�s view that Uganda occupied Ituri district
until the date its troops withdrew. As for the other areas where it had
carried out its military activities, Uganda should, however, be considered
as the occupying Power from the date when it seized the various locations
until the signing of the Lusaka Agreement. Even if it retained its military
grip on the airports and other strategic locations, it can, as a result of
the arrangements made in the Lusaka Agreement, no longer be said to have
substituted itself for or replaced the authority of the territorial
government since under the terms of the Agreement that authority was also
exercised by the rebel movements.
55. Whereas my disagreement with the way in which the Court interpreted the
criteria for the applicability of the law of belligerent occupation is to a
certain extent merely technical (although
not without legal consequences), I have more substantive reservations as to
the way in which the
phenomenon of �occupation� is dealt with in the dispositif.
56. In the first paragraph of the operative part the Court finds that
Uganda, by engaging in military activities against the DRC on the latter�s
territory, by occupying Ituri and by supporting the irregular forces having
operated on the territory of the DRC, violated the principle of non-use
of force and the principle of non-intervention. In my view, the occupation
of Ituri should not have been characterized in a direct sense as a violation
of the principle of the non-use of force.
57. The law on belligerent occupation was originally set up as a �balancing
mechanism� FN10 between the interests of the ousted sovereign and the
occupying Power. The latter�s obligation as
temporary authority to restore and ensure public order while respecting the
laws in force (Article 43 Hague Regulations) and its powers with respect to
property (Arts. 48 ff) reflect this balancing mechanism. It was only in 1949
that the rules on occupation were extended in the Fourth Geneva Convention
by adding a number of provisions regarding the treatment of the population
of occupied territory.
---------------------------------------------------------------------------------------------------------------------
FN10
Benvenisti, op. cit., p. 30.
---------------------------------------------------------------------------------------------------------------------
58. In their interrelationship the rules on occupation form an important
part of the ius in bello or international humanitarian law. The main purpose
of that law is to protect persons caught up in conflict, even if it does
take into account the interests of the belligerent parties. It does not
differentiate between belligerents. In particular, no distinction is made in
the ius in bello between
an occupation resulting from a lawful use of force and one which is the
result of aggression. The latter issue is decided by application of the ius
ad bellum, the law on the use of force, which attributes responsibility for
the commission of the acts of which the occupation is the result. 59. In the
present case, the Court has found that Uganda has violated its obligation
under the principle of the non-use of force, since its military activities
do not constitute self-defence. It thus has breached its obligations under
the ius ad bellum. The Court has also found that Uganda has violated its
obligations under the ius in bello, in particular in regard to the district
of Ituri, the
occupation of which was the outcome of its illegal use of force.
60. It goes without saying that the outcome of an unlawful act is tainted
with illegality. The occupation resulting from an illegal use of force
betrays its origin but the rules governing its régime do not characterize
the origin of the result as lawful or unlawful.
61. In his report for the Centennial of the First Hague Peace Conference
Professor Christopher Greenwood has dealt with the implications of the fact
that nowadays the ius in bello exists �within a framework of international
law which significantly restricts the right of States to resort to force�.
He continues by saying that the full implications of the relationship
between the contemporary ius ad bellum and ius in bello have yet to be
determined FN11.
---------------------------------------------------------------------------------------------------------------------
FN11F.
Kalshoven (ed.), The Centennial of the First International Peace Conference,
Reports and Conclusions, 2000, p. 186.
---------------------------------------------------------------------------------------------------------------------
62. Earlier I drew attention to the fact that the reluctance of governments
to declare the law of belligerent occupation applicable may be due to the
impression that �occupation� has become almost synonymous with aggression
and oppression.
63. I am aware that this impression is lent credibility by Article 3 of
General Assembly resolution 3314 (XXIX) on the Definition of Aggression,
which under (a) qualifies as an act of aggression: �The invasion or attack
by the armed forces of a State of the territory of another State, or any
military occupation, however temporary, resulting from such invasion or
attack . . .�
(Emphasis added.)
This resolution, as important as it may be from a legal point of view, does
not in all its terms reflect customary law. The reference to military
occupation as an act of aggression is in my opinion less than felicitous
FN12.
---------------------------------------------------------------------------------------------------------------------
FN12
See B. Broms, �The Definition of Aggression�; Recueil des Cours, 154 (1977),
p. 348: �[I]t could be argued in view of the way in which the paragraph has
been construed that the military occupation or the annexation presupposes
the existence of an act of aggression in the form of an invasion or attack
and that it would therefore not have been necessary to include them
separately in this paragraph�.
---------------------------------------------------------------------------------------------------------------------
64. Professor Greenwood says that �[t]he law of belligerent occupation has
had a poor record of compliance for most of the 20th century�. In his view
the principal problem is not one of a deficiency in the law but rather the
reluctance of States to admit that the law applies at all FN13. I regret
that in the first paragraph of the dispositif the Court may have contributed
to this reluctance on the part of belligerent parties to declare the law of
occupation applicable.
---------------------------------------------------------------------------------------------------------------------
FN13
Op. cit., pp. 218-219.
---------------------------------------------------------------------------------------------------------------------
D. Provisional measures
66. In its fifth submission the DRC requested the Court to declare that
Uganda had violated the Court�s Order on provisional measures of 1 July
2000. In paragraph 7 of the dispositif the Court acceded to this request.
For a number of reasons I do not find the Court�s reasoning in support of
this ruling to be cogent.
67. The provisional measures indicated by the Court in its Order of 1 July
2000 were three in number and were addressed to both Parties. The Parties
were first called upon to prevent and refrain from any action, in particular
armed action, which might prejudice the rights of the other Party or might
aggravate or extend the dispute. They were further ordered to take all
measures to
comply with their obligations under international law and with Security
Council resolution 1304 (2000) of 16 June 2000. Finally, they were
instructed to take all measures necessary to ensure full respect within the
zone of conflict for human rights and for international humanitarian law.
68. It deserves mentioning that, whereas the Applicant requested the Court
to indicate provisional measures addressed to Uganda, the Court decided
proprio motu to indicate measures for both Parties, as there existed a
serious risk of events occurring which might aggravate or extend the dispute
or make it more difficult to resolve (I.C.J. Reports 2000, p. 21, para. 44).
69. During the written and oral proceedings hardly any attention was paid by
the Parties to the Order of 1 July 2000. The DRC�s submissions in its Reply,
dated 29 May 2002, made no reference to it. The request for a ruling that
Uganda had violated the provisions of the Order appeared for the first time
in the final submissions.
70. In paragraph 264 of the Judgment the Court notes �that the DRC put
forward no specific evidence demonstrating that after July 2000 Uganda
committed acts in violation of each of the three provisional measures
indicated by the Court�.
71. This observation would have sufficed to dismiss the DRC�s submission,
just as the Court did in respect of a similar submission in its Judgment in
the case concerning the Land and Maritime Boundary between Cameroon and
Nigeria (Cameroon v. Nigeria: Equatorial Guinea Intervening). There the
Court stated that it was for Cameroon to show that Nigeria acted in
violation of the provisional measures indicated in the Order of 15 March
1996 but that Cameroon
had not established the facts which it bore the burden of proving (I.C.J.
Reports 2002, p. 452, paras. 321-322). In this respect the Court relied on
its earlier statement that it is �the litigant seeking to establish a fact
who bears the burden of proving it; and in cases where evidence may not be
forthcoming, a submission may in the judgment be rejected as unproved�.
(Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Jurisdiction and Admissibility, I.C.J. Reports
1984, p. 437, para. 101.)
72. In the present case, however, the Court does not do so because it has
already found (in its consideration of the DRC�s second claim) that Uganda
is responsible for acts in violation of human rights and international
humanitarian law throughout the period when Ugandan troops were present in
the DRC, including the period subsequent to the issuance of the Order on
provisional measures.
The Court therefore concludes that Uganda did not comply with that Order.
73. In paragraph 265 the Court notes that the provisional measures were
addressed to both Parties and that its finding as to Uganda�s non-compliance
is �without prejudice to the question as to whether the DRC did not also
fail to comply with the provisional measures indicated by the
Court�.
74. In view of the fact that the Court deemed it necessary to emphasize that
the purpose of these provisional measures was to protect the rights of
either of the Parties pending the determination of the merits (paragraph
263) the formulation chosen by the Court seems to indicate an awareness that
this purpose has been respected neither by Uganda nor by the DRC even though
the latter question was not raised by Uganda and was thus not for the Court
to decide.
75. In these circumstances it would in my view have been judicially sound
not to include in the dispositif a finding that Uganda did not comply with
the Order on provisional measures.
I have no doubt whatsoever that Uganda breached its obligations under the
Order. This is sufficiently demonstrated in the part of the Judgment dealing
with the DRC�s second submission and the Court�s finding on that submission.
But the Court is also �painfully aware� that many atrocities have been
committed by other parties as well (Judgment, paragraph 221).
76. In short, in view of the fact that the DRC has not provided any specific
evidence of Uganda�s violation of the Order and taking into account the
purpose of provisional measures being the protection of the legal interests
of either party, I sincerely regret that the Court has decided to include in
the dispositif of the Judgment the finding that one of them has violated the
Order of 1 July 2000, in particular since the Court in no way excludes that
such violation has also been committed by the other Party.
77. There is no need for the Court to decide on each and every submission
presented by the Parties. In the present case, for example, the dispositif
does not deal with the Congolese requests for cessation and for guarantees
and assurances, which only have been considered in the reasoning. Paragraphs
264 and 265 of the Judgment were sufficient to make clear the Court�s
position in respect of the DRC�s submission on provisional measures.
78. The Court�s decision to include a finding in the dispositif is in my
view an illustration of the lack of balance I have referred to earlier. For
these reasons - and not because I disagree with the finding itself - I felt
constrained to vote against paragraph 7 of the dispositif.
E. The first counter-claim
79. I share the Court�s view that it is useful to divide Uganda�s first
counter-claim into three periods. I agree with the Court that the
counter-claim is without merit as regards the second and the third period.
The following comments thus relate only to the period prior to May 1997 and
only to the merits of that part of the counter-claim.
80. In paragraphs 298 and 299 of the Judgment the Court concludes that
Uganda has not produced satisfactory evidence that Zaire (as the DRC was
then called) actually supported the Ugandan rebel movements which were
active on Zairean territory. I have no difficulty with the Court�s view on
that matter.
81. In paragraph 301 of the Judgment the Court deals with the question
whether Zaire had acted in conformity with its duty of vigilance, which in
its words is �a different issue�. In this respect the Court takes note of
Uganda�s argument that the rebel groups were able to operate �unimpeded� in
the border area because of the almost complete absence of central government
presence or authority in the region during President Mobutu�s 32-year term
in office. The Court continues by saying that neither Zaire nor Uganda was
in a position to put an end to the activities of the anti-Ugandan and
anti-Zairean rebel movements operating in the area. Then it finds that, in
the light of the evidence before it, it cannot, however, conclude that the
absence of action of Zaire�s Government is tantamount to �tolerating� or
�acquiescing� in their activities and that, consequently, this part of
Uganda�s counter-claim cannot be upheld.
82. But surely it is not Uganda that has to provide evidence that Zaire was
in a position to exercise control over its borders and thus to take action.
Nor was counsel for the DRC persuasive
when he argued that Uganda itself recognized �the impossibility of
effectively policing� the common border. It is for the State under a duty of
vigilance to show what efforts it has made to fulfil that duty and what
difficulties it has met. In my view the DRC has only been successful in
sufficiently substantiating an �almost complete absence� of government
presence or authority for
the period from October 1996 to May 1997, the time of the first civil war.
But I have found no evidence in the case file nor in relevant reports that
the government in Kinshasa was not in a position to exercise its authority
in the eastern part of the country for the whole of the relevant period and
thus was unable to discharge its duty of vigilance before October 1996; the
DRC has not even tried to provide such evidence.
83. I therefore fail to understand the factual ground for the Court�s
conclusion that �the part of Uganda�s first counter-claim alleging Congolese
responsibility for tolerating the rebel groups prior to May 1997 cannot be
upheld� (Judgment, paragraph 301). In my view the logical conclusion would
have been that the DRC has failed to provide evidence that it took credible
measures to prevent rebel movements from carrying out transborder attacks or
was unable to do so and that the first part of the counter-claim thus must
be upheld.
84. Let me add that factual circumstances, such as geographical conditions
(mountainous terrain) may explain a lack of result but can never justify
inadequate efforts or the failure to make efforts.
(Signed) P.H. KOOIJMANS.
SEPARATE OPINION OF JUDGE ELARABY
Agreement with the findings of the Court - Treatment by the Court of the
prohibition of the use of force - Failure to address the Democratic Republic
of the Congo�s claim of aggression - Centrality of this claim to the
Democratic Republic of the Congo�s case - Prohibition of aggression in
international law - General Assembly resolution 3314 (XXIX)- Authority of
the Court to determine whether there has been a violation of the prohibition
of aggression � Clear instance of aggression in the facts found to be
established by the Court - Relevance of the Court�s dicta in Nicaragua -
Importance of consistency in the Court�s jurisprudence.
1. My vote in favour of the Judgment reflects my support for its
conclusions. I do however deem it appropriate to place on record certain
considerations which I find absent in the Judgment. While I fully concur
with the Court�s findings that there were grave violations of the principle
of
the non-use of force in international relations, I believe the Court should
have explicitly upheld the Democratic Republic of the Congo�s claim that
such unlawful use of force amounted to aggression.
2. The issues arising in this case are manifold and complex, touching upon
some of the most sensitive questions of international law. The Democratic
Republic of the Congo has alleged that Uganda violated Article 2, paragraph
4, of the Charter of the United Nations. It claims that armed activities of
Uganda constitute a breach of this general prohibition of the use of force.
It alleges furthermore that these armed activities constitute aggression.
3. At each stage of the current proceedings, the Democratic Republic of the
Congo has emphasized the gravity of the use of force exercised by Uganda in
breach of its obligations under international law. In its Application
initiating proceedings in the instant case, the Democratic Republic of the
Congo alleges that:
�this Application instituting proceedings against the Government of the
Republic of Uganda, on account of acts of armed aggression perpetrated by
Uganda on the territory of the Democratic Republic of the Congo, [is] in
flagrant violation of the United Nations Charter and of the Charter of the
Organization of African Unity.
Such armed aggression by Ugandan troops on Congolese territory has involved
inter alia violation of sovereignty and territorial integrity of the
Democratic Republic of the Congo, violations of international humanitarian
law and massive human rights violations.
By the present Application the Democratic Republic of the Congo seeks to
secure the cessation of the acts of aggression directed against it, which
constitute a serious threat to peace and security in central Africa in
general and in the Great LakesRegion in particular.� (Application of the
DRC, p. 5.)
4. Furthermore, in its Memorial, the Democratic Republic of the Congo
declares:
�Because all direct means of settling the dispute have failed, the
Democratic Republic of the Congo is asking the Court to fulfil its role as
guarantor of law, justice and peace and to condemn Uganda for the policy of
aggression it has conducted against the Democratic Republic of the Congo
since 2 August 1998� (Memorial of the Democratic Republic of the Congo
(MDRC), p. 3, para. 0.10).
In its Memorial, the Applicant elaborates upon this, declaring that �the
gravity of the violation of
the prohibition of the use of force� is such as to make it �characterizable
as aggression� (MDRC, pp. 93-95, paras. 4.40-5.50). In its submissions, the
Democratic Republic of the Congo asks the Court to find �the principle of
non-use of force in international relations, including the prohibition of
aggression� (MDRC, p. 147, para. 1) amongst the principles of international
law violated by Uganda.
5. In its Reply to the Counter-Memorial of Uganda, the Democratic Republic
of the Congo once again emphasizes its claim of Ugandan aggression:
�[t]he wording [of the Democratic Republic of Congo�s Application] shows
very clearly what the essential subject-matter of the Application is: the
principle of Ugandan aggression. The details of that aggression, including
the looting of natural resources and associated atrocities, are not
considered in isolation, as separate acts.� (Reply of the Democratic
Republic of the Congo (RDRC), p. 7, para. 1.16.)
In its presentation of the military intervention of Uganda, the Democratic
Republic of the Congo states: �[g]iven the gravity of the Ugandan military
intervention, the DRC concluded that it was faced with real aggression
within the meaning of the definition given to this term by the General
Assembly of the United Nations� (RDRC, p. 42, para. 2.01).
6. In the course of the oral pleadings, the Democratic Republic of the Congo
reiterated its claim and referred to Ugandan military activities towards the
Democratic Republic of the Congo and cited General Assembly resolution 3314
(XXIX) on the definition of aggression.
7. The activities alleged of Uganda generally - and especially the form and
nature of its use of force - are extremely serious in nature. The Court
holds that:
�The unlawful military intervention by Uganda was of such a magnitude and
duration that the Court considers it to be a grave violation of the
prohibition on the use of force expressed in Article 2, paragraph 4, of the
Charter.� (Judgment, paragraph 165.)
8. Thus while the Court uses exceptionally strong language to emphasize the
gravity of the use of force in this case, it fails to consider the
additional claim of the Democratic Republic of the Congo that such acts, on
account of their very seriousness as well as their specific
characteristics,constitute aggression. Aggression is the core and the very
essence of the use of force prohibited under Article 2, paragraph 4, of the
Charter. As the Preamble of the Definition of Aggression states, �aggression
is the most serious and dangerous form of the illegal use of force�.
9. In view of the submissions of the Applicant, and the gravity of the
violations recognized by the Court, I feel it is incumbent upon the Court to
respond to the serious allegation put forward by the Democratic Republic of
the Congo that the activities of Uganda also constitute aggression as
prohibited under international law.
10. Aggression is not a novel concept in international law. In the aftermath
of the Second World War, the Nuremberg Tribunal stated that �to initiate a
war of aggression, therefore, is not only an international crime; it is the
supreme international crime differing only from other warcrimes in that it
contains within itself the accumulated evil of the whole� (Judgment of 1
October 1946, Trial of the Major War Criminals before the International
Military Tribunal, Nuremberg, 14 November-1 October 1946, Vol. 1, p. 186).
The founding of the United Nations was a landmark and a turning point in the
outlawing of the use of force. The Charter of the United Nations lays down,
in Article 2, paragraph 4, a general prohibition on �the threat and use of
force� in States international relations. Article 39 confers upon the
Security Council the authority to make a determination of the �existence of
any threat to the peace, breach of the peace, or act of aggression� in order
to make recommendations and take action under other provisions of Chapter
VII for the maintenance of international peace and security.
11. It does not follow however that the identification of aggression is
solely within the purview of the Security Council. The Court has confirmed
the principle that the Security Council�s responsibilities relating to the
maintenance of international peace and security are ��primary� not
exclusive� (Certain Expenses of the United Nations (Article 17, paragraph 2,
of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 163), it is clear
that aggression - as a legal as well as a
political concept - can be of equal concern to other competent organs of the
United Nations, including the Court as �the principal judicial organ of the
United Nations� (Article 92, Charter of
the United Nations). Although the term�s use in political and popular
discourse is often highly charged, it nevertheless remains that aggression
is a legal concept with legal connotations and legal consequences, matters
which fall clearly within the remit of the Court, particularly when the
circumstances of a case coming before the Court call for a decision thereon.
There is now general recognition that, as Judge Lachs wrote in the Lockerbie
case, �the dividing line between political and legal disputes is blurred as
law becomes ever more frequently an integral part of international
controversies� (Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. United Kingdom) (Libyan Arab Jamahiriya v. United States
of America), Order of 14 April 1992, I.C.J. Reports 1992, p. 139).
12. The General Assembly and its subsidiary organs worked for many years to
achieve an appropriate and effective definition of what constitutes
aggression. The culmination of such efforts came with the adoption of the
General Assembly Declaration on the Definition of Aggression (resolution
3314 (XXIX)). This resolution sets out a general definition of the term in
Article 1, while also citing a non-exhaustive list of situations which
amount to aggression in Article 3. Although this definition is not without
its problems and at the time certain Member States had reservations about
certain aspects thereof, it was nonetheless adopted without a vote by the
General Assembly of the United Nations and marks a noteworthy success in
achieving by consensus a definition of aggression.
13. The definition does not claim to be either completely exhaustive or
authoritative. Yet it does offer an invaluable guide to the scope of
aggression and an elucidation of the meaning of this term in international
relations. As the Preamble of the Declaration emphasizes,
�the adoption of a definition of aggression ought to have the effect of
deterring a potential aggressor, would simplify the determination of acts of
aggression and the implementation of measures to suppress them and would
also facilitate the protection of the rights and lawful interests of, and
the rendering of assistance to, the victim�.
14. The Preamble to the Definition of Aggression in resolution 3314 (XXIX)
also aptly clarifies that aggression �must be considered in the light of all
the circumstances of each particular case�. It is to this consideration that
I now turn. Examining the activities by Uganda against the Democratic
Republic of the Congo found to have taken place in the current case, it is,
in my view, clear that such activities amount to aggression. They fall
clearly within the scope of Article 1 of the definition: �[a]ggression is
the use of armed force by a State against the sovereignty, territorial
integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations, as set out in this
Definition�.
15. In the Nicaragua case, aggression was considered by the Court in the
context of an armed attack possibly giving rise to self-defence under
customary international law. Although the Court found in that case that no
such armed attack had been proven, the Court held that
�[t]his description contained in Article 3, paragraph (g), of the Definition
of Aggression annexed to General Assembly resolution 3314 (XXIX), may be
taken to reflect customary international law� (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, I.C.J. Reports 1986, p. 103 , para. 195).
16. The gravity of the factual circumstances and context of the present case
dwarfs that of the Nicaragua case. The acknowledgment by the Court of the
customary international law status of the definition of aggression is of
considerable importance to the instant case and in particular to the
Democratic Republic of the Congo�s claim that Uganda has violated the
prohibition of aggression in international law. Indeed the definition of
aggression applies a fortiori to the situation at hand: the full force of
the Charter provisions are applicable; the nature and form of the activities
under consideration fall far more clearly within the scope of the
definition; the evidence before the Court is more complete and both Parties
have been present at all stages of the proceedings.
17. These factors, allied with the central position of this claim within the
Application and the pleadings of the Democratic Republic of the Congo,
require the Court to adhere to its judicial responsibility to adjudicate on
a normative basis. The Court�s dicta on this point are of a broader
significance as they establish a normative test which should be operational
across the board. The same yardstick should be used in every case to gauge
the unlawful use of force by any State. Article 38 (b) of the Statute
mandates the Court to apply �international custom, as evidence of a
general practice accepted as law�. By dint of its dicta in the Nicaragua
case, the Court should, in
my view, have embarked on a determination as to whether the egregious use of
force by Uganda
falls within the customary rule of international law as embodied in General
Assembly resolution 3314 (XXIX).
18. Thus it was my expectation that the Court�s dicta in the Nicaragua case,
even if construed as obiter would be followed in the instant case by
qualifying the grave use of force by Uganda as amounting to aggression.
Rarely if ever has the Court been asked to pronounce upon a situation where
such grave violations of the prohibition of the use of force have been
committed. This makes it all the more important for the Court to consider
the question carefully and - in the light of its dicta in the Nicaragua case
- to respond positively to the Democratic Republic of the Congo�s allegation
that Ugandan armed activities against and on its territory amount to
aggression and constitute a breach of its obligations under international
law.
19. The consistency of the Court�s dicta and holdings should be observed and
maintained. It is appropriate to point out that the consistency of the case
law practice and jurisprudence of the Court is not confined to the
dispositif of the judgments. Shabtai Rosenne noted that there is �general
desire for consistency and stability in the Court�s case-law when the Court
is dealing with legal issues which have been before it in previous cases�
(The Law and Practice of the International Court, 1920-1996, Vol. III,
Procedure, Martinus Nijhoff (1997), p. 1610).
The Court has emphasized this point in the case concerning the Continental
Shelf by noting that
�the justice of which equity is an emanation, is not abstract justice but
justice according to the rule of law; which is to say that its application
should display consistency and a degree of predictability; even though it
looks with particularity to the peculiar circumstances of an instant case,
it also looks beyond it to principles of more general application�
(Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports
1985, p. 30, para. 45).
As a general rule, such consistency has hitherto been maintained. On this
point, Judge Shahabuddeen remarked, the Court�s �jurisprudence has developed
in the direction of a strong tendency to adhere closely to previous
holdings� (Precedent in the World Court, Grotius, Cambridge University Press
(1996), p. 238).
20. As remarked at the outset, I concur with the Court�s findings in the
present case, including its finding relating to the use of force. I am
unable, however, to appreciate any compelling reason for the Court to
refrain from finding that Uganda�s actions did indeed amount to aggression.
The International Court of Justice has not been conceived as a penal court,
yet its dicta have wide-ranging effects in the international community�s
quest to deter potential aggressors and to overcome the culture of impunity.
Given the centrality of the claim of aggression to the Democratic Republic
of the Congo�s Application as well as the seriousness of the violation of
the use of force in the present case and the broader importance of
repressing aggression in international relations, I have appended this
separate opinion to respond fully to the Democratic Republic of the Congo�s
submission on this point.
(Signed) Nabil ELARABY.
SEPARATE OPINION OF JUDGE SIMMA
The Court should have called the Ugandan invasion of a large part of the
DRC�s territory an act of aggression - The Court should not have avoided
dealing with the issue of self-defence against large-scale cross-boundary
armed attacks by non-State actors but rather it should have taken the
opportunity to clarify a matter to the confused state of which it has itself
contributed - Against the background of current attempts to deprive certain
persons of the protection due to them under international humanitarian and
human rights law, the Court should have found that the private persons
maltreated at Kinshasa Airport in August 1998 did enjoy such protection, and
that Uganda would have had standing to raise a claim in their regard
irrespective of their nationality.
1. Let me emphasize at the outset that I agree with everything the Court is
saying in its Judgment. Rather, what I am concerned about are certain issues
on which the Court decided to say nothing. The first two matters in this
regard fall within the ambit of the use of force in the context of the
claims of the Democratic Republic of the Congo; the third issue concerns the
applicability of international humanitarian and human rights law to a
certain part of Uganda�s second counter-claim.
1. The use of force by Uganda as an act of aggression
2. One deliberate omission characterizing the Judgment will strike any
politically alert reader: it is the way in which the Court has avoided
dealing with the explicit request of the DRC to find that Uganda, by its
massive use of force against the Applicant has committed an act of
aggression. In this regard I associate myself with the criticism expressed
in the separate opinion of Judge Elaraby. After all, Uganda invaded a part
of the territory of the DRC of the size of Germany and kept it under her own
control, or that of the various Congolese warlords she befriended, for
several years, helping herself to the immense natural riches of these
tormented regions. In its Judgment the Court cannot but acknowledge of
course that by engaging in these �military activities� Uganda �violated the
principle of non-use of force in international relations and the principle
of non-intervention� (Judgment, paragraph 345 (1)). The Judgment gets
toughest in paragraph 165 of its reasoning where it states that �[t]he
unlawful military intervention by Uganda was of such a magnitude and
duration that the Court considers it to be a grave violation of the
prohibition of the use of force expressed in Article 2, paragraph 4, of the
Charter�. So, why not call a spade a spade? If there ever was a military
activity before the Court that deserves to be qualified as an act of
aggression, it is the Ugandan invasion of the DRC. Compared to its scale and
impact, the military adventures the Court had to deal with in earlier cases,
as in Corfu Channel, Nicaragua, or Oil Platforms, border on the
insignificant.
3. It is true that the United Nations Security Council, despite adopting a
whole series of resolutions on the situation in the Great Lakes region (cf.
paragraph 150 of the Judgment) has never gone as far as expressly qualifying
the Ugandan invasion as an act of aggression, even though it must appear as
a textbook example of the first one of the definitions of �this most serious
and dangerous form of the illegal use of force� laid down in General
Assembly resolution 3314 (XXIX). The Council will have had its own -
political - reasons for refraining from such a determination. But the Court,
as the principal judicial organ of the United Nations, does not have to
follow that course. Its very raison d�être is to arrive at decisions based
on law and nothing but the law, keeping the political context of the cases
before it in mind, of course, but not desisting from stating what is
manifest out of regard for such non-legal considerations. This is the
division of labour between the Court and the political organs of the United
Nations envisaged by the Charter!
2. Self-defence against large-scale armed attacks by non-State actors
4. I am in agreement with the Court�s finding in paragraph 146 of the
Judgment that the �armed attacks� to which Uganda referred when claiming to
have acted in self-defence against the DRC, were perpetrated not by the
Congolese armed forces but rather by the Allied Democratic Forces (ADF),
that is, from a rebel group operating against Uganda from Congolese
territory. The Court stated that Uganda could provide no satisfactory proof
that would have sustained its allegation that these attacks emanated from
armed bands or regulars sent by or on behalf of the DRC. Thus these attacks
are not attributable to the DRC.
5. The Court, however, then finds, that for these reasons, the legal and
factual circumstances for the exercise of a right to self-defence by Uganda
against the DRC were not present (Judgment, paragraph 147). Accordingly, the
Court continues, it has no need to respond to the contentions of
the Parties as to whether and under what conditions contemporary
international law provides for a right of self-defence against large-scale
attacks by irregular forces (ibid.).
6. Thus, the reasoning on which the Judgment relies in its findings on the
first submission by
the DRC appears to be as follows:
- since the submission of the DRC requests the Court (only) to find that it
was Uganda�s use of
force against the DRC which constituted an act of aggression, and
- since the Court does not consider that the military activities carried out
from Congolese territory onto the territory of the Respondent by
anti-Ugandan rebel forces are attributable to the DRC,
- and since therefore Uganda�s claim that its use of force against the DRC
was justified as an exercise of self-defence, cannot be upheld,
it suffices for the Court to find Uganda in breach of the prohibition of the
use of force enshrined in the United Nations Charter and in general
international law. The Applicant, the Court appears to say, has not asked
for anything beyond that. Therefore, it is not necessary for the Court to
deal
with the legal qualification of either the cross-boundary military
activities of the anti-Ugandan groups as such, or of the Ugandan
countermeasures against these hostile acts.
7. What thus remains unanswered by the Court is the question whether, even
if not attributable to the DRC, such activities could have been repelled by
Uganda through engaging these groups also on Congolese territory, if
necessary, provided that the rebel attacks were of a scale sufficient to
reach the threshold of an �armed attack� within the meaning of Article 51 of
the United Nations Charter.
8. Like Judge Kooijmans in paragraphs 25 ff. of his separate opinion, I
submit that the Court should have taken the opportunity presented by the
present case to clarify the state of the law on a highly controversial
matter which is marked by great controversy and confusion - not the least
because it was the Court itself that has substantially contributed to this
confusion by its Nicaragua Judgment of two decades ago. With Judge
Kooijmans, I regret that the Court �thus has missed a chance to fine-tune
the position it took 20 years ago in spite of the explicit invitation by one
of the Parties to do so� (separate opinion of Judge Kooijmans, para. 25).
9. From the Nicaragua case onwards the Court has made several pronouncements
on questions of use of force and self-defence which are problematic less for
the things they say than for the questions they leave open, prominently
among them the issue of self-defence against armed attacks by non-State
actors.
10. The most recent - and most pertinent - statement in this context is to
be found in the (extremely succinct) discussion by the Court in its Wall
Opinion of the Israeli argument that the separation barrier under
construction was a measure wholly consistent with the right of States to
self-defence enshrined in Article 51 of the Charter (Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, I.C.J. Reports 2004, p. 194, para. 138). To this argument the Court
replied that Article 51 recognizes the existence of an inherent right of
self-defence in the case of an armed attack by one State against another.
Since Israel did not claim that the attacks against it were imputable to a
foreign State, however, Article 51 of the Charter had no relevance in the
case of the wall (ibid., para. 139).
11. Such a restrictive reading of Article 51 might well have reflected the
state, or rather the prevailing interpretation, of the international law on
self-defence for a long time. However, in the
light of more recent developments not only in State practice but also with
regard to accompanying opinio juris, it ought urgently to be reconsidered,
also by the Court. As is well known, these developments were triggered by
the terrorist attacks of September 11, in the wake of which claims that
Article 51 also covers defensive measures against terrorist groups have been
received far more favourably by the international community than other
extensive re-readings of the relevant Charter provisions, particularly the
�Bush doctrine� justifying the pre-emptive use of force FN1. Security
Council resolutions 1368 (2001) and 1373 (2001) cannot but be read as
affirmations of the view that large-scale attacks by non-State actors can
qualify as �armed attacks� within the meaning of Article 51.
---------------------------------------------------------------------------------------------------------------------
FN1
Th. Bruha/Ch. Tams, �Self-Defence Against Terrorist Attacks. Considerations
in the Light of the ICJ�s �Israeli Wall� Opinion�, in: K. Dicke et
al.(eds.), Weltinnenrecht. Liber Amicorum Jost Delbrück, Berlin 2005, pp.
84-112, at p. 97.
---------------------------------------------------------------------------------------------------------------------
12. In his separate opinion, Judge Kooijmans points to the fact that the
almost complete absence of governmental authority in the whole or part of
the territory of certain States has unfortunately become a phenomenon as
familiar as international terrorism (separate opinion of Judge Kooijmans,
para. 30). I fully agree with his conclusions that, if armed attacks are
carried out by irregular forces from such territory against a neighbouring
State, these activities are still armed attacks even if they cannot be
attributed to the territorial State, and, further, that it �would be
unreasonable to deny the attacked State the right to self-defence merely
because there is no attacker State and the Charter does not so require so�
(ibid.) FN2.
---------------------------------------------------------------------------------------------------------------------
FN
2Referring to Y. Dinstein, War, Aggression, and Self-Defence, 3rd ed., 2002,
p. 216.
---------------------------------------------------------------------------------------------------------------------
13. I also subscribe to Judge Kooijmans� opinion that the lawfulness of the
conduct of the attacked State in the face of such an armed attack by a
non-State group must be put to the same test as that applied in the case of
a claim of self-defence against a State, namely, does the scale of the armed
action by the irregulars amount to an armed attack and, if so, is the
defensive action by the attacked State in conformity with the requirements
of necessity and proportionality? (Ibid., para. 31.)
14. In applying this test to the military activities of Uganda on Congolese
territory from August 1998 onwards, Judge Kooijmans concludes - and I agree
- that, while the activities that Uganda conducted in August in an area
contiguous to the border may still be regarded as keeping within these
limits, the stepping up of Ugandan military operations starting with the
occupation of the Kisangani airport and continuing thereafter, leading the
Ugandan forces far into the interior of the DRC, assumed a magnitude and
duration that could not possibly be justified any longer by reliance on any
right of self-defence. Thus, at this point, our view meets with, and shares,
the Court�s final conclusion that Uganda�s military intervention constitutes
� a grave violation of the prohibition on the use of force expressed in
Article 2, paragraph 4, of the Charter� (Judgment, paragraph 165).
15. What I wanted to demonstrate with the preceding reasoning is that the
Court could well have afforded to approach the question of the use of armed
force on a large scale by non-State actors in a realistic vein, instead of
avoiding it altogether by a sleight of hand, and still arrive at the same
convincing result. By the unnecessarily cautious way in which it handles
this matter, as well as by dodging the issue of �aggression�, the Court
creates the impression that it somehow feels uncomfortable being confronted
with certain questions of utmost importance in contemporary international
relations.
3. The maltreatment of persons at Ndjili International Airport and
international humanitarian and human rights law
16. My third observation relates to the maltreatment inflicted on certain
persons by Congolese soldiers at Ndjili International Airport in Kinshasa in
August 1998.
In its second counter-claim, Uganda alleged, inter alia, that by maltreating
certain individuals other than Ugandan diplomats when they attempted to
leave the country following the outbreak of the armed conflict, the DRC
violated its obligations under the �international minimal standard relating
to the treatment of foreign nationals lawfully on State territory�, as well
as �universally recognized standards of human rights concerning the security
of the human person� (Counter-Memorial of Uganda (CMU), paras. 405-407). The
Court concluded in paragraph 333 of its Judgment that in presenting this
part of the counter-claim Uganda was attempting to exercise its right to
diplomatic protection with regard to its nationals. It followed that Uganda
would need to meet the conditions necessary for the exercise of diplomatic
protection as recognized in general international law, that is, the
requirement of Ugandan nationality of the individuals concerned and the
prior exhaustion of local remedies. The Court observed that no specific
documentation could be found in the case file identifying the persons as
Ugandan nationals. The Court thus decided that, this condition not being
met, the part of Uganda�s counter-claim under consideration here was
inadmissible. It thus upheld the objection of the DRC to this effect
(Judgment, paragraph 345 (11)).
17. My vote in favour of this part of the Judgment only extends to the
inadmissibility of Uganda�s claim to diplomatic protection, since I agree
with the Court�s finding that the preconditions for a claim of diplomatic
protection by Uganda were not met. I am of the view, however, that the
Court�s reasoning should not have finished at this point. Rather, the Court
should have recognized that the victims of the attacks at the Ndjili
International Airport remained legally protected against such maltreatment
irrespective of their nationality, by other branches of
international law, namely international human rights and, particularly,
international humanitarian
law. In its Judgment the Court has made a laudable effort to apply the rules
developed in these fields to the situation of persons of varying nationality
and status finding themselves in the war zones, in as comprehensive a manner
as possible. The only group of people that remains unprotected by the legal
shield thus devised by the Court are the 17 unfortunate individuals
encountering the fury of the Congolese soldiers at the airport in Kinshasa.
18. I have to admit that the way in which Uganda presented and argued the
part of its second counter-claim devoted to this group struck me as somewhat
careless, both with regard to the evidence that Uganda mustered and to the
quality of its legal reasoning. Such superficiality might stem from the
attempts of more or less desperate counsel to find issues out of which they
think they could construe what to them might look like a professionally
acceptable counter-claim FN3, instead of genuine concern for the fate of the
persons concerned.
---------------------------------------------------------------------------------------------------------------------
FN3
This is not the first case giving me this impression; cf. my separate
opinion in the Oil Platforms case, para. 36.
---------------------------------------------------------------------------------------------------------------------
19. Be this as it may, I will take the opportunity of Uganda�s claim
concerning the events at the airport further to develop the thesis presented
at the outset, namely that it would have been possible for the Court in its
Judgment to embrace the situation in which these individuals found
themselves, on the basis of international humanitarian and human rights law,
and that no legal void existed in their regard. The reader might ask herself
why I should give so much attention to an incident which happened more than
seven years ago, whose gravity must certainly pale beside the unspeakable
atrocities committed in the war in the Congo. I will be very clear: I
consider that
legal arguments clarifying that in situations like the one before us no gaps
exist in the law that would deprive the affected persons of any legal
protection, have, unfortunately, never been as important as at present, in
the face of certain recent deplorable developments.
20. Let me, first, turn to the relevance of international humanitarian law
to the incident at Ndjili International Airport.
To begin with, the fact that the airport was not a site of major hostilities
in the armed conflict between the DRC and Uganda does not present a barrier
to the application of international humanitarian law to the events which
happened there. There are two reasons for this.
21. First, the key issue in finding whether international humanitarian law
should apply also in peaceful areas of the territory of a belligerent State
is whether those areas are somehow connected to the conflict. This was
indeed the case with Ndjili International Airport because the individuals
maltreated there found themselves in a situation of evacuation from armed
conflict. The Note of Protest sent by the Embassy of Uganda to the Ministry
of Foreign Affairs of the DRC on 21 August 1998 - which the Court considers
reliable evidence in paragraph 339 of its Judgment - states that individuals
and Ugandan diplomats were at Ndjili International Airport in the context of
an evacuation (CMU, Ann. 23). This evacuation was necessary due to the armed
conflict taking place in the DRC. Therefore, the events at the airport were
factually connected to the armed conflict. The airport was not a random
peaceful location completely unconnected to that conflict. Quite the
contrary, it was the point of departure for an evacuation rendered necessary
precisely by the armed conflict. During that evacuation, the airport became
the scene of violence by Congolese forces against the evacuees.
22. Article 80 (1) of the Rules of Court states that: �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.� (Emphasis added.) In its Order of 29 November 2001, the Court
found the second counter-claim admissible under the Article 80 �direct
connection� test, stating that �each Party holds the other responsible for
various acts of oppression allegedly accompanying an illegal use of force; .
. . these are facts of the same nature,
and . . the Parties� claims form part of the same factual complex� (para.
40; emphasis added). Therefore the Court had already determined, in its
Order under Article 80, that the events at the airport formed part of the
�same factual complex� as the armed conflict which constitutes the basis of
the main claim. Hence, international humanitarian law should apply to the
counter-claim as it does to the main claim.
23. Second, the application of international humanitarian law to the events
at the airport would be consistent with the understanding of the scope of
international humanitarian law developed by the ICTY Appeals Chamber. In
Prosecutor v. Tadic, the Appeals Chamber stated:
�Armed conflict exists whenever there is a resort to armed force between
States or protracted armed violence between . . . such groups within a
State. International humanitarian law applies from the initiation of such
armed conflicts and extends beyond the cessation of hostilities until a
general conclusion of peace is reached; or, in the case of internal armed
conflicts, a peaceful settlement is achieved. Until that moment,
international humanitarian law continues to apply in the whole territory of
the warring States or, in the case of internal conflicts, the whole
territory under the control of a party, whether or not actual combat takes
place there.� (No. IT-94-1, Decision of the Appeals Chamber on the defence
motion for interlocutory appeal on jurisdiction, para. 70 (2 October 1995);
emphasis added.)
The Appeals Chamber also noted that �the temporal and geographical scope of
both internal and international armed conflicts extends beyond the exact
time and place of hostilities� (ibid., at para. 67). Later in the same case,
a Trial Chamber analysed the phrase �when committed in armed conflict�,
which qualifies the unlawful acts set out in Article 5 of the Statute of the
ICTY, and concluded that �it is not necessary that the acts occur in the
heat of battle� (Prosecutor v. Du[ko Tadi], No. IT-94-1-T, Trial Chamber,
Opinion and Judgment, para. 632 (7 May 1997)). Similarly, a Trial Chamber of
the ICTY has stated that �there does not have to be actual combat activities
in a particular location for the norms of international humanitarian law to
be applicable� (Prosecutor v. Delalic, Mucic, Delic, & Landzo, No.
IT-96-21-T, Trial Chamber Judgment, para. 185 (16 November 1998)).
24. I turn, next, to the substantive rules of international humanitarian law
applicable to the persons in question. The provision which first comes to
mind is Article 4 of the Fourth Geneva Convention of 1949. According to
Article 4, persons who �at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in the
hands of a Party to the conflict or Occupying Power of which they are not
nationals� are considered �protected persons�
under the Convention. If the individuals maltreated by the DRC at Ndjili
International Airport were considered protected persons under Article 4 of
the Fourth Geneva Convention, the behaviour of the Congolese soldiers would
have violated several provisions of that Convention, including Article 27
(requiring that protected persons �shall at all times be humanely treated,
and shall be protected especially against all acts of violence or threats
thereof and against insults and public curiosity�), Article 32 (prohibiting
the infliction of physical suffering on protected persons), Article 33
(prohibiting reprisals against protected persons and their property), and
Article 36 (requiring that evacuations of protected persons be carried out
safely).
25. However, the qualification of the 17 individuals at the airport as
�protected persons� within the meaning of Article 4 meets with great
difficulties. As I stated above, Uganda was not able to prove that these
persons were her own nationals; in fact we have no information whatsoever as
to their nationality. In this regard, Article 4 of the Fourth Geneva
Convention states that:
�Nationals of a neutral State who find themselves in the territory of a
belligerent State, and nationals of a co-belligerent State, shall not be
regarded as protected persons while the State of which they are nationals
has normal diplomatic representation in the State in whose hands they are.�
The individuals under consideration might have been nationals of a neutral
State or those of a co-belligerent (like Rwanda), and we do not know whether
their home State maintained normal diplomatic relations with the DRC at the
time of the incident. Against this factual background - or rather, the lack
thereof - it would not have been possible for the Court to regard them as
�protected persons�.
26. But this is not the end of the matter. The gap thus left by Geneva
Convention Article 4 has in the meantime been - deliberately - closed by
Article 75 of Protocol I Additional to the Geneva Conventions of 1949. This
provision enshrines the fundamental guarantees of international humanitarian
law and reads in pertinent part as follows:
�1. In so far as they are affected by a situation referred to in Article 1
of this Protocol, persons who are in the power of a Party to the conflict
and who do not benefit from more favourable treatment under the Conventions
or under this Protocol shall be treated humanely in all circumstances and
shall enjoy, as a minimum, the protection provided by this Article . . .
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:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
(iii) corporal punishment;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
(b) outrages upon personal dignity, in particular humiliating and degrading
treatment, . . .�
The Commentary of the International Committee of the Red Cross to Article 75
specifically notes that this provision was meant to provide protection to
individuals who, by virtue of the exceptions listed in Article 4 of the
Fourth Geneva Convention, did not qualify as �protected persons�. Thus, the
Commentary makes clear that Article 75 provides protection to both nationals
of States not parties to the conflict and nationals of allied States, even
if their home State happened to have normal diplomatic representation in the
State in whose hands they find themselves FN4. The Commentary emphasizes
that �[i]f . . . there were . . . cases in which the status of . . .
protected person were denied to certain individuals, the protection of
Article 75 must be applied to them as a minimum� FN5.
---------------------------------------------------------------------------------------------------------------------
FN4
Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949, Y. Sandoz, Ch. Swinarski, B. Zimmermann
(eds.), Geneva, 1987, p. 869.
FN5 Ibid., p. 867.
---------------------------------------------------------------------------------------------------------------------
27. The conclusion just arrived at has been confirmed recently in an Opinion
of the European Commission for Democracy through Law (Venice Commission)
established by the Council of Europe FN6. This Opinion was prepared to
answer the question whether the new challenges posed by international
terrorism, and the claims made by the United States in the wake of September
11 to the effect that the United States could deny certain persons the
protection of the Geneva Conventions because they were �enemy unlawful
combatants�, rendered necessary a further development of international
humanitarian law. According to the Venice Commission, Article 75 of Protocol
I Additional to the Geneva Conventions, as well as common Article 3 to the
Geneva Conventions (on which infra)
---------------------------------------------------------------------------------------------------------------------
FN6
Adopted by the Venice Commission at its 57th Plenary Session, Venice, 12-13
December 2003, Opinion No. 245/2003, doc. No. CDL-AD (2003) 18, paras. 34
ff.
---------------------------------------------------------------------------------------------------------------------
�are based on the assumption that nationals of States which are not Parties
to the conflict or nationals of co-belligerent States do not need the full
protection of GC IV since they are normally even better protected by the
rules on diplomatic protection. Should however, diplomatic protection not be
(properly) exercised on behalf of such third party nationals, International
Humanitarian Law provides for protection under Article 75 P I and common
Article 3 so that such persons do not remain without certain minimum
rights.� FN7
------------------------------------------------------------------------------------------------------------
FN7 Ibid.,
para. 38.
------------------------------------------------------------------------------------------------------------
Thus, also according to the Venice Commission, there is �in respect of these
matters . . . no legal
void in international law� FN8.
---------------------------------------------------------------------------------------------------------------------
FN8
Ibid., para. 85.
---------------------------------------------------------------------------------------------------------------------
28. Further, it can safely be concluded that the fundamental guarantees
enshrined in Article 75 of Additional Protocol I are also embodied in
customary international law FN9.
---------------------------------------------------------------------------------------------------------------------
FN9
For a highly relevant reference in this regard (cf. supra, para. 19) United
States Army, Operational Law Handbook (2002), International and Operational
Law Department, The Judge Advocate General�s School, United States Army,
Charlottesville, Virginia, issued 15 June 2001, Ch. 2 at p. 5. See also,
more generally, A. Roberts, �The Laws ofWar in the War on Terror�, Israel
Yearbook of Human Rights, Vol. 32 (2002), pp. 192-245.
---------------------------------------------------------------------------------------------------------------------
29. Attention must also be drawn to Article 3 common to all four Geneva
Conventions, which defines certain rules to be applied in armed conflicts of
a non-international character. As the Court stated in the Nicaragua case:
�There is no doubt that, in the event of international armed conflicts,
these rules also constitute a minimum yardstick, in addition to the more
elaborate rules which are also to apply to international conflicts; and they
are rules which, in the Court�s opinion, reflect what the Court in 1949
called �elementary considerations of humanity� (Corfu Channel, Merits,
I.C.J. Reports 1949, p. 22 . . .).� (Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, p. 114, para. 218.)
As such, the Court in Nicaragua found these rules applicable to the
international dispute before it. The same is valid in the present case. In
this regard, the decision of the Tadic Appeals Chamber discussed above is
also of note. In relation to common Article 3, it stated that �the rules
contained in Article 3 also apply outside the narrow geographical context of
the actual theatre of combat operations� (Prosecutor v. Tadic, Decision of
the Appeals Chamber on the defence motion for interlocutory appeal on
jurisdiction, para. 69; see supra, para. 23).
30. In addition to constituting breaches of international humanitarian law,
the maltreatment of the persons in question at Ndjili International Airport
was also in violation of international human rights law. In paragraph 216 of
its Judgment, the Court recalls its finding in the Advisory
Opinion of 9 July 2004 on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, according to which �the
protection offered by human rights conventions does not cease in case of
armed conflict . . .� (I.C.J. Reports 2004, p. 178, para. 106). In its
Advisory Opinion, the Court continued:
�As regards the relationship between international humanitarian law and
human rights law, there are thus three possible situations: some rights may
be exclusively matters of international humanitarian law; others may be
exclusively matters of human rights law; yet others may be matters of both
these branches of international law.� (Ibid.)
In my view, the maltreatment of the individuals at the airport falls under
the third category of the
situations mentioned: it is a matter of both international humanitarian and
international human rights law.
31. Applying international human rights law to the individuals maltreated by
the DRC at Ndjili International Airport, the conduct of the DRC would
violate provisions of the International Covenant on Civil and Political
Rights of 19 December 1966, the African Charter on Human and
Peoples� Rights of 27 June 1981, and the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December
1984, to all of which both the DRC and Uganda are parties. Specifically,
under the International Covenant on Civil and Political Rights, the conduct
of the DRC would violate Article 7 (�No one shall be subjected to . . .
cruel, inhuman or degrading treatment or punishment.�), Article 9, paragraph
1 (�Everyone has the right to liberty and security of person. No one shall
be subjected to arbitrary arrest or detention. No one shall be deprived of
his liberty except on such grounds and in accordance with such procedure as
are established by law�), Article 10, paragraph 1 (�All persons deprived of
their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person.�), and Article 12, paragraphs 1 and 2
(�1. Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement . . . 2. Everyone shall be
free to leave any country, including his own.�).
Under the African Charter, the conduct of the DRC would violate Article 4
(�Human beings are inviolable. Every human being shall be entitled to
respect for . . . the integrity of his person. No one may be arbitrarily
deprived of this right.�), Article 5 (�Every individual shall have the right
to the respect of the dignity inherent in a human being and to the
recognition of his legal status. All forms of exploitation and degradation
of man particularly . . . cruel, inhuman or degrading punishment and
treatment shall be prohibited.�), Article 6 (�Every individual shall have
the right to liberty and to the security of his person. No one may be
deprived of his freedom except for reasons and conditions previously laid
down by law. In particular, no one may be arbitrarily arrested or
detained.�), as well as Article 12, paragraphs 1 and 2 (�1. Every individual
shall have the right to freedom of movement and residence within the borders
of a State provided he abides by the law. 2. Every individual shall have the
right to leave any country including his own, and to return to his country .
. .�). Finally, although the conduct of the DRC at Ndjili International
Airport did not rise to the level of torture, it was nevertheless in
violation of Article 16, paragraph 1, of the Convention Against Torture
which reads as follows:
�Each State Party shall undertake to prevent in any territory under its
jurisdiction other acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture as defined in article I, when such
acts are committed by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity.�
32. The jurisdiction of the Court being firmly established, there remains
the issue of standing to raise violations of international humanitarian and
human rights law in the case of persons who may not have the nationality of
the claimant State. In the present case, regarding Uganda�s counter-claim,
the issue does not present itself in a technical sense because Uganda has
not actually pleaded a violation of either of these branches of
international law in relation to the persons in question. But if Uganda had
chosen to raise these violations before the Court, it would
undoubtedly have had standing to bring such claims.
33. As to international humanitarian law, Uganda would have had standing
because, as the Court emphasized in its Advisory Opinion on the Wall:
�Article 1 of the Fourth Geneva Convention, a provision common to the four
Geneva Conventions, provides that �The High Contracting Parties undertake to
respect and to ensure respect for the present Convention in all
circumstances�. It follows from that provision that every State party to
that Convention, whether or not it is a party to a specific conflict, is
under an obligation to ensure that the requirements of the instruments in
question are complied with.� (I.C.J. Reports 2004, pp. 199-200, para. 158.)
The Court concluded that given the character and the importance of the
rights and obligations involved, there is an obligation on all States
parties to the Convention to respect and ensure respect for violations of
the international humanitarian law codified in the Convention (ibid., p.
200, paras. 158-159). The same reasoning is applicable in the instant case.
There cannot be any doubt that the obligation (not only to respect but also)
to ensure respect for international humanitarian law applies to the
obligations enshrined both in common Article 3 and in Protocol I Additional
to the Geneva Conventions.
34. The ICRC Commentary to common Article 1 of the Conventions arrives at
the same result in its analysis of the obligation to respect and to ensure
respect, where it is stated that:
�in the event of a Power failing to fulfil its obligations [under the
Convention], the other Contracting Parties (neutral, allied or enemy) may,
and should, endeavour to bring it back to an attitude of respect for the
Convention. The proper working of the system of protection provided by the
Convention demands in fact that the Contracting Parties should not be
content merely to apply its provisions themselves, but should do everything
in their power to ensure that the humanitarian principles underlying the
Conventions are applied universally.� FN10
------------------------------------------------------------------------------------------------------------
FN10
Commentary to the Fourth Geneva Convention relative to the Protection of
Civilian Persons in Time of War, J.S. Pictet (ed.), Geneva, 1958, p. 16.
------------------------------------------------------------------------------------------------------------
Thus, regardless of whether the maltreated individuals were Ugandans or not,
Uganda had the right - indeed the duty - to raise the violations of
international humanitarian law committed against the private persons at the
airport. The implementation of a State party�s international legal duty to
ensure respect by another State party for the obligations arising under
humanitarian treaties by way of raising it before the International Court of
Justice is certainly one of the most
constructive avenues in this regard.
35. As to the question of standing of a claimant State for violations of
human rights committed against persons which might or might not possess the
nationality of that State, the jurisdiction of the Court not being at issue,
the contemporary law of State responsibility provides a positive answer as
well. The International Law Commission�s 2001 draft on Responsibility of
States for Internationally Wrongful Acts provides not only for the
invocation of responsibility by an injured State (which quality Uganda would
possess if it had been able to establish the Ugandan nationality of the
individuals at the airport) but also for the possibility that such
responsibility can be invoked by a State other than an injured State. In
this regard, Article 48 of the draft reads as follows:
�Article 48
Invocation of responsibility by a State other than an injured State
1. Any State other than an injured State is entitled to invoke the
responsibility of another State in accordance with paragraph 2 if:
(a) The obligation breached is owed to a group of States including that
State, and is established for the protection of a collective interest of the
group; or
(b) The obligation breached is owed to the international community as a
whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim
from the responsible State:
(a) Cessation of the internationally wrongful act, and assurances and
guarantees of non-repetition in accordance with article 30; and
(b) Performance of the obligation of reparation in accordance with the
preceding articles, in the interest of the injured State or of the
beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State
under articles 43, 44 and 45 apply to an invocation of responsibility by a
State entitled to do so under paragraph 1.� FN11
------------------------------------------------------------------------------------------------------------
FN11 Report
of the ILC on the work of its Fifty-third session, Official Records of the
General Assembly, Fifty-sixth Session, Suppl. No. 10 (A/56/10), p. 56.
------------------------------------------------------------------------------------------------------------
The obligations deriving from the human rights treaties cited above and
breached by the DRC are instances par excellence of obligations that are
owed to a group of States including Uganda, and are established for the
protection of a collective interest of the States parties to the Covenant.
36. With regard to the customary requirement of the exhaustion of local
remedies, this condition only applies if effective remedies are available in
the first place (cf. ILC Article 44 (b) and the commentary thereto). In view
of the circumstances of the airport incident and, more generally, of the
political situation prevailing in the DRC at the time of the Ugandan
invasion, I tend to agree with the Ugandan argument that attempts by the
victims of that incident to seek justice in the Congolese courts would have
remained futile (cf. para. 317 of the Judgment). Hence, no obstacle would
have stood in the way for Uganda to raise the violation of human rights of
the persons maltreated at Ndjili International Airport, even if these
individuals did not possess its nationality.
37. In summary of this issue, Uganda would have had standing to bring, and
the Court would have had jurisdiction to decide upon a claim both under
international humanitarian law and international human rights law for the
maltreatment of the individuals at the airport, irrespective of the
nationality of these individuals. The specific construction of the rights
and obligations under the Fourth Geneva Convention as well as the relevant
provisions of Protocol I Additional to this Convention not only entitles
every State party to raise these violations but even creates an
obligation to ensure respect for the humanitarian law in question. The rules
of the international law of State responsibility lead to an analogous result
as concerns the violations of human rights of the persons concerned by the
Congolese soldiers. Uganda chose the avenue of diplomatic protection and
failed. A reminder by the Court of the applicability of international
humanitarian and human rights law standards and of Uganda�s standing to
raise violations of the obligations deriving from these standards by the DRC
would, in my view, not have gone ultra petita partium.
38. Let me conclude with a more general observation on the community
interest underlying international humanitarian and human rights law. I feel
compelled to do so because of the notable hesitation and weakness with which
such community interest is currently manifesting itself vis-à-vis the
ongoing attempts to dismantle important elements of these branches of
international law in the proclaimed �war� on international terrorism.
39. As against such undue restraint it is to be remembered that at least the
core of the obligations deriving from the rules of international
humanitarian and human rights law are valid erga omnes. According to the
Commentary of the ICRC to Article 4 of the Fourth Geneva Convention, �[t]he
spirit which inspires the Geneva Conventions naturally makes it desirable
that they should be applicable �erga omnes�, since they may be regarded as
the codification of accepted principles� FN12. In its Advisory Opinion on
the Legality of the Threat or Use of Nuclear Weapons the Court stated that
�a great many rules of humanitarian law applicable in armed conflict are so
fundamental to the respect of the human person and �elementary
considerations of humanity� . . .�, that they are �to be observed by all
States whether or not they have ratified the conventions that contain them,
because they constitute intransgressible principles of international
customary law� (I.C.J. Reports 1996 (I), p. 257, para. 79). Similarly, in
the Wall Advisory Opinion, the Court affirmed that the rules of
international humanitarian law �incorporate obligations which are
essentially of an erga omnes character� (I.C.J. Reports 2004, p. 199, para.
157).
---------------------------------------------------------------------------------------------------------------------
FN12
Op. cit. (footnote 10), p. 48.
---------------------------------------------------------------------------------------------------------------------
40. As the Court indicated in the Barcelona Traction case, obligations erga
omnes are by their very nature �the concern of all States� and, �[i]n view
of the importance of the rights involved, all States can be held to have a
legal interest in their protection� (Barcelona Traction, Light and Power
Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para.
33). In the same vein, the International Law Commission has stated in the
Commentaries to its Articles on the Responsibility of States for
Internationally Wrongful Acts, that there are certain rights in the
protection of which, by reason of their importance, �all States have a legal
interest . . .� (A/56/10 at p. 278) FN13.
---------------------------------------------------------------------------------------------------------------------
FN13
Concerning the specific question of standing in case of breaches of
obligations erga omnes the Institute of International Law, in a resolution
on the topic of obligations of this nature adopted at its Krakow Session of
2005, accepted the following provisions:
�Article 3
In the event of there being a jurisdictional link between a State alleged to
have committed a breach of an obligation erga omnes and a State to which the
obligation is owed, the latter State has standing to bring a claim to the
International Court of Justice or other international judicial institution
in relation to a dispute concerning compliance with that obligation.
Article 4
The International Court of Justice or other international judicial
institution should give a State to which an obligation erga omnes is owed
the possibility to participate in proceedings pending before the Court or
that institution and relating to that obligation. Specific rules should
govern this participation.�
---------------------------------------------------------------------------------------------------------------------
41. If the international community allowed such interest to erode in the
face not only of violations of obligations erga omnes but of outright
attempts to do away with these fundamental duties, and in their place to
open black holes in the law in which human beings may be disappeared and
deprived of any legal protection whatsoever for indefinite periods of time,
then international law, for me, would become much less worthwhile.
(Signed) Bruno SIMMA.
DECLARATION OF JUDGE TOMKA
Duty of vigilance - Toleration by Zaire on its territory of activities of
rebel groups against Uganda in 1994-1997 period - Duty of Uganda to
prosecute those who have committed grave breaches of international
humanitarian law - Self-defence and the prohibition of the use of force:
order of their consideration.
Having voted in favour of the dispositif, with the exception of its
paragraph 9, I wish to clarify my position on several issues in relation to
the Judgment.
I. Duty of Vigilance - Failure to take Action
1. The Court rejected the first counter-claim of the Republic of Uganda
(paragraph 9 of the dispositif). When voting on this paragraph, I was faced
with a dilemma. I concur with the views of the Court concerning the
counter-claim relating to the second period, from May 1997 until 2 August
1998, and to the third period, following 2 August 1998 (see paragraphs
302-304 of the Judgment). However, my position regarding the first period,
from 1994 until May 1997, is � in respect of one of its aspects - different
from that of the majority. I agree with the majority, that �Uganda has not
produced sufficient evidence to show that the Zairean authorities were
involved in providing political and military support for specific attacks
against Ugandan territory� (paragraph 298). But, to my regret, I cannot
subscribe to the reasoning and conclusion of the majority that the
Democratic Republic of Congo (DRC) has not breached its duty of vigilance
during the period 1994-1997 by tolerating Ugandan rebel movements� use of
the DRC�s territory to launch attacks on Uganda (paragraphs 300-301). As the
Court observes, �[t]he DRC recognized that anti-Ugandan groups operated on
the territory of the DRC from at least 1986� (paragraph 300). It is not
disputed that in the period relevant for this part of Uganda�s claim
(1994-May 1997), the anti-Ugandan rebel movements used the territory of the
then Zaire to launch attacks against Uganda and its population who were
victims of these attacks. Zaire was well aware of the situation.
2. Sovereignty of a State does not involve only rights but also obligations
of a territorial State. The State has an obligation not only to protect its
own people, but also to avoid harming its neighbours. This Court, in the
Corfu Channel case, confirmed the �general and well-recognized principle�
according to which every State has the �obligation not to allow knowingly
its territory to be used for acts contrary to the rights of other States�
(Merits, Judgment, I.C.J. Reports 1949, p. 22).
3. In accordance with the provisions of the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among
States, provisions which are declaratory of customary rules, �every State
has the duty to refrain from . . . acquiescing in organised activities
within its territory directed towards the commission of such acts [i.e. acts
of civil strife or terrorist acts] when the acts involve a threat or use of
force�; and, �no State shall . . . tolerate subversive, terrorist or armed
activities directed towards the violent overthrow of the regime of another
State� (A/RES/2625 (XXV)).
4. The duty of vigilance required Zaire to exert all good efforts in order
to prevent its territory from being used to the detriment of Uganda. Whether
Zaire complied with such a duty should be determined on the basis of Zaire�s
conduct. The geomorphological features or size of the territory does not
relieve a State of its duty of vigilance nor render it less strict. Nor does
the absence of central governmental presence in certain areas of a State�s
territory set aside the duty of vigilance for a State in relation to those
areas. Otherwise such absence, coupled with the attacks originating in that
territory would have justified the neighbouring State, victim of attack, to
step in and to put an end to the attacks.
The duty of vigilance is an obligation of conduct, not an obligation of
result. It may happen that despite all good efforts of a State, which has a
duty of vigilance, the neighbouring State will nevertheless suffer harm. The
occurrence of harm does not necessarily prove that the duty of vigilance was
breached. But its occurrence creates the presumption that the obligation of
vigilance has not been complied with. In such a case it would be for the
State which has the duty of vigilance (i.e., the DRC in the present case) to
demonstrate that it exerted all good efforts to prevent its territory from
being misused for launching attacks against its neighbour in order to rebut
such a presumption.
5. The DRC has not provided the Court with credible information on any such
bona fide effort. Therefore, I am unable to concur with the view of the
majority that the absence of action by Zaire�s Government against the rebel
groups in the border area is not tantamount to �tolerating� or �acquiescing�
in their activities (paragraph 301). I am convinced that justice would have
been
done if the DRC were found responsible for Zaire�s toleration of the
activities of (anti-Ugandan)
rebel groups from its territory against Uganda, in the first period up to
May 1997, that is, for its
own failure to comply with its obligation of vigilance.
6. The Court�s finding in paragraph 9 of the dispositif concerns Uganda�s
first counter-claim in toto. Although I concur with the majority with
respect to the major part of the first counter-claim, nevertheless I cannot
agree with its finding with respect to one of the elements of the
counter-claim. That is sufficient, in my view, for upholding the
counter-claim. So, at the end, I felt to be left with no other choice than
to vote against paragraph 9 of the dispositif. Needless to say that what I
consider to be a breach by the Democratic Republic of the Congo of its duty
of vigilance cannot be compared to the magnitude of Uganda�s breach of the
prohibition of the use of force.
II. Grave Breaches of International Humanitarian Law - Obligation to
Prosecute
7. The Court has found that Uganda has breached its obligations under
international humanitarian law (paragraph 3 of the dispositif). When
considering the allegation of breaches of
international humanitarian law obligations by the Uganda Peoples� Defence
Forces (UPDF), the Court, being convinced that they were committed,
qualifies these breaches as grave (see paragraphs 207 and 208).
8. The Court has also determined the legal consequences of Uganda�s breaches
of its international legal obligations, including the obligations under
international humanitarian law (see the dispositif, paragraph 6, and also
paragraphs 251-261). In doing that, the Court took as a point of departure
the fourth final submission of the DRC (see paragraphs 25 and 252) and
determined these consequences under the general rules of international law
on responsibility of States for internationally wrongful acts.
9. Nevertheless, since grave breaches of international humanitarian law were
committed, there is another legal consequence which has not been raised by
the DRC and on which the Court remains silent. That consequence is provided
for in international humanitarian law. There should be no doubt that Uganda,
as party to both the Geneva Conventions of 1949 and the Additional Protocol
I of 1977 remains under the obligation to bring those persons who have
committed these grave breaches before its own courts (Article 146 of the
Fourth Geneva Convention, and Article 85 of the Protocol I Additional to the
Geneva Conventions).
III. Self-Defence and the Non-Use of Force
10. The order in which the Court, in the present case, has dealt with legal
issues relating to self-defence and the prohibition of the use of force is
worthy of note.
The Court having first made its findings on the facts concerning Uganda�s
use of force (paragraphs 55 et seq.), then moves to the analysis of relevant
legal norms. In this analysis, leaving aside the issue of the alleged
consent by the DRC to Uganda�s military presence on the former�s territory,
the consideration of self-defence precedes that of the prohibition of the
use of force. One may consider that order understandable since if, according
to Article 51 of the Charter,
�[n]othing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security�,
then a lawful exercise of the right to self-defence cannot constitute a
breach of any relevant article of the United Nations Charter (in concreto,
Article 2, paragraph 4), and there would be no point in analysing the
latter. Only once the Court concludes that �the legal and factual
circumstances for the exercise of a right of self-defence by Uganda . . .
were not present�(paragraph 147), is it incumbent upon it to consider, and
to make findings on, the prohibition of the use of force (paragraphs 148 et
seq.).
11. The prohibition on the use of force cannot be read without having regard
to the Charter provisions on self-defence. The provisions on self-defence,
in fact, delineate the scope of rules prohibiting the use of force. If a
measure in question constitutes a lawful measure of self-defence, it
necessarily falls outside the ambit of the prohibition. In other words, the
prohibition of the use of force is not applicable to the use of force in
lawfully exercised self-defence.
12. The order in which the Court considers self-defence and the prohibition
of the use of force in the present case is thus different from that in which
it considered them in the case concerning Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America)
(Merits, Judgment, I.C.J. Reports 1986, pp. 98-106, paras. 187-201; and pp.
118-123, paras. 227-238), although it does not lead to different
conclusions.
(Signed) Peter TOMKA.
Declaration of
Judge ad hoc Verhoeven
[French version only]
DISSENTING OPINION OF JUDGE KATEKA
I find myself in disagreement with the Court�s Judgment on key aspects on
the use of force, violations of human rights and international humanitarian
law and the alleged unlawful exploitation of the DRC�s natural resources.
With regret, I am therefore constrained to vote against several of the
operative clauses of the dispositif. Before explaining my reasons for
disagreeing with parts of the Judgment, I wish to comment on some
evidentiary issues and on the background to the case.
I. Evidentiary issues and background to the case
2. The Court enjoys freedom and flexibility with regard to the consideration
of evidence. In this case, as the Court acknowledges, both Parties have
presented it with a vast amount of evidentiary materials. It has therefore
to assess the probative value of the documents and eliminate from further
consideration those it deems unreliable. This is not an easy task, as it
calls for choice. In this exercise of choice, a judge is guided by an �inner
conviction� (inevitably influenced by one�s background and experience),
which should prick the conscience so that one lives up to the requirement of
Article 20 of the Court�s Statute. As judge ad hoc, I am mindful of the
words of Judge Lauterpacht that I am bound to exercise my function
impartially and conscientiously while also discharging the special
obligation to endeavour to ensure, so far as is reasonable, that argument in
favour of the Party that appointed me �is reflected - though not necessarily
accepted - in [this] dissenting opinion� (Application of the Convention on
the Prevention and Punishment of the Crime of Genocide, Provisional
Measures, Order of 13 September 1993, I.C.J. Reports 1993, p. 409, para. 6).
3. In my view, the Court has not been even-handed in its treatment of the
materials submitted by the two Parties. For example, the Court terms as �a
bundle of news reports of variable reliability� (Judgment, paragraph 136),
which the Court does not find weighty and convincing. This is evidence
adduced by Uganda to establish the Sudan�s involvement in aiding
anti-Ugandan elements in the DRC. This is a whole set of over 140 documents,
which is published in Volume IV of the DRC�s Reply. Earlier, in paragraph 68
of the Judgment, the Court regards as �an interested source� and rejects
evidence proffered by the DRC from the same volume in the context of the
Kitona airborne operation. This being the case, one would expect the Court
to regard it as a case of �statement against interest� and treat favourably
the documents from the same volume that Uganda relies upon.
4. The volume in question is a collection by the Integrated Regional
Information Network (IRIN). The sources for the information include United
Nations agencies, NGOs and other international organizations and media
reports. One would have expected this OCHA affiliated network to be given
more credence than it gets, especially when the press information is �wholly
consistent and concordant as to the main facts and circumstances of the
case� (United States Diplomatic and Consular Staff in Tehran, Judgment,
I.C.J. Reports 1980, p. 10, para. 13). But the Court excludes this large
amount of materials noting that it lacks corroboration. This is in spite of
the fact that the information about the Sudan, that is in this volume, is
from different media from all over the world.
5. A further illustration of the unequal treatment of the Parties is
depicted when the Court cites an ICG report of August 1998 that the Court
acknowledges as �independent�. The report, according to the Court, does seem
to suggest some Sudanese support for the ADF�s activities (ADF is a virulent
anti-Ugandan rebel group). The Court goes on to quote the report: �It also
implies that this was not a matter of Congolese policy, but rather a
reflection of its inability to control events along its border.� (Judgment,
paragraph 135.) This theme of the DRC�s inability recurs throughout the
Judgment. The Court does not examine this report any further to see if the
DRC can be held responsible for the unlawful use of force against Uganda.
But the Court holds Uganda internationally responsible for unlawful
exploitation of the DRC�s resources in spite of the Court�s finding that it
was not governmental policy of Uganda to do so (Judgment, paragraphs 242 and
250).
6. The Court continues with its tendency to discount evidence in favour of
Uganda when it dismisses a key report as of no relevance to Uganda�s case.
This is in connection with Uganda�s contention of incorporation into
Kabila�s army of thousands of ex-FAR and Interahamwe génocidaires in May
1998. A United States Department report, which is also set aside by the
Court, condemned the DRC�s recruitment and training of former perpetrators
of the Rwandan genocide. By declaring the report as irrelevant, the Court
seems to be unaware of the fourth objective of Uganda�s High Command
document that states: �To prevent the genocidal elements, namely, the
Interahamwe, and ex-FAR, which have been launching attacks on the people of
Uganda from the DRC, from continuing to do so.� (Judgment, paragraph 109.)
7. In short, �the Court has chosen to depreciate [Uganda�s evidence], to
omit any consequential statement of the law�, to paraphrase Judge Schwebel�s
words in his dissenting opinion in the Nicaragua case (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, p. 272, para. 16). To
this end, more examples can be quoted to illustrate how the Court has dealt
unevenly with the Parties. The Court, in one part of the Judgment (paragraph
132), is satisfied that the evidence does show a series of attacks occurring
within the relevant time frame against Uganda. However, the Court observes
that these facts are not denied by the DRC, but its position is that the ADF
alone was responsible for the events.
8. At the start of its substantive consideration of the Parties�
contentions, the Court expresses its awareness of the complex and tragic
situation which has long prevailed in the Great Lakes region. The Court
notes, however, that its task is to respond, on the basis of international
law, to the particular legal dispute brought before it. The Court concludes,
�[a]s it interprets and applies the law, it will be mindful of context, but
its task cannot go beyond that� (Judgment, paragraph 26).
9. However, the task of the Court cannot be in a vacuum. The existing
realities must be taken into consideration. In this particular case, the
realities include the genocide that happened in Rwanda in 1994. The effects
of this genocide still reverberate in the region to this day. One of the
root causes of this crisis has been ethnicity, which was exploited by the
colonialists during colonial times. An additional factor is the terrible
history of unscrupulous dictators - all of whom had support from abroad. In
the case of the DRC, it has led to the land of Patrice Lumumba not to
experience peace for most of the time since independence. It is only now
that there is hope for
such peace.
II. The Use of Force
10. I voted against the first paragraph of the dispositif, which finds that
Uganda has violated the principle of non-use of force in international
relations, by engaging in military activities against the DRC, by occupying
Ituri and by actively extending military, logistic, economic and financial
support to irregular forces having operated on the territory of the DRC.
11. This omnibus clause creates confusion by mixing up jus ad bellum with
jus in bello. A finding on Uganda engaging in military activities against
the DRC should have been separated from that of occupation. I am of the
opinion that the finding on occupation has been invoked by the Court to
justify its findings of violations of human rights and international
humanitarian law.
12. In this regard, it bears recalling that the first of the DRC�s final
submissions 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 . . . has violated .
. . the principle of non-use of force in international relations, including
the prohibition of aggression . . .�FN1 (Judgment, paragraph 25.)
------------------------------------------------------------------------------------------------------------
FN1 �Aggression
is the use of armed force by a State, against the sovereignty, territorial
integrity or political independence of another State.� (General Assembly
resolution 3314 (XXIX), Art. 1.)
------------------------------------------------------------------------------------------------------------
The Court has not found Uganda responsible for aggression against the DRC.
It has reached a finding short of aggression by using the language of
�extending military, logistic, economic and financial support to irregular
forces . . .� (paragraph 1 of the dispositif). This phraseology evokes the
memory of the dictum in the case of Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America) (Merits,
Judgment, I.C.J. Reports 1986, p. 14). The dictum left open the definition
of �armed attack� as applied in the Charter of the United
Nations and under customary international law.
13. In this regard, it has been stated thus �that actions by irregulars can
constitute an armed attack� is not challenged, and
�the controversy centres on the degree of state involvement that is
necessary to make the actions attributable to the state and to justify
action in self-defence in particular cases� (Christine Gray, International
Law and the Use of Force, Oxford University Press 2000, p. 97).
Given the controversy that still persists, I am of the view that the Court
should have taken the opportunity to clarify the question of the use of
force in self-defence. This is more so in view of the fact that irregular
forces lie at the heart of the dispute between the Parties in this case.
14. Following the Nicaragua Judgment, the Court was criticized for stating
in its dictum that the provision of weapons and logistical support to
private groups did not amount to an armed attack. The gist of the Court�s
language in the present case has the same effect as that in the Nicaragua
Judgment (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports
1986). In this respect, some publicists contend that the use of force below
the threshold of an �armed attack� is covered by the general principle of
non-intervention (B. Simma (ed.), The Charter of the United Nations � A
Commentary (2nd Edition 2002).
15. In the context of irregulars, others such as Sir Robert Jennings hold
the view that the provision of arms and logistical support amount to armed
attack. �Accordingly, it seems to me that to say that the provision of arms,
coupled with �logistical or other support� is not armed attack is going much
too far.� (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports
1986, p. 543; dissenting opinion of Judge Sir Robert Jennings.) This is the
meaning I put to the words of the Court in the first paragraph of the
dispositif. However, I apply them - see below - to the deeds of the DRC in
support of anti-Uganda insurgents.
16. In its analysis of the question of the use of force, the Court has not
put much weight to Uganda�s two arguments for circumstances precluding
wrongfulness, namely, consent and self-defence. As a result of this, the
Court has arrived, in my view, at a mistaken conclusion that Uganda has
violated the principle of non-use of force by engaging in military
activities against the DRC. An examination of Uganda�s arguments below
reveals the contrary.
17. Uganda contends that its armed forces were present in the DRC from May
1997 to August 1998 and from July 1999 to June 2003 with the consent of the
DRC, pursuant to oral agreements with President Laurent-Désiré Kabila in May
and December 1997, the bilateral Protocol of April 1998, the multilateral
Lusaka Agreement of July 1999 and the bilateral Luanda Agreement of
September 2002. For the period not covered by the DRC�s consent, i.e., from
mid-September 1998 to mid-July 1999, Uganda contends that its military
forces in the Congo during this ten-month period were there pursuant to the
lawful exercise of the right to self-defence.
18. Concerning the defence of consent, I find myself in disagreement with
the Court�s conclusion that the consent of the DRC was withdrawn at the
Victoria Summit of 8 August 1998. The Court, in my view, has chosen the date
of 8 August rather arbitrarily. For there could be several other dates such
as (a) 2 August 1998 when the DRC claims that Uganda invaded it, beginning
with a major operation at Kitona. But the Court has rightly concluded that
it has not been established that Uganda participated in the attack at
Kitona; (b) the date of 28 July 1998, when President Kabila issued a
statement terminating the Rwandan military presence, �with effect from this
Monday, 27 July 1998�. However, the Court has found that the presence of the
Ugandan forces in the DRC did not become unlawful by virtue of President
Kabila�s statement; (c) 13 August 1998 when the United Nations Permanent
Representative of the DRC told a press conference that Uganda had invaded
the DRC; (d) 11 September 1998 when Uganda invoked the right of
self-defence, following the publication of its High Command document, which
was implemented by operation �Safe Haven�.
19. From the above dates, a reasonable inference can be drawn that the
statements attributed to the various leaders of the DRC merely expressed
complaints concerning the situation in the DRC. They were not meant to
withdraw the consent for the continued presence of Uganda�s military forces
in the Congo. In this regard, it bears stressing that Uganda took the
initiative leading to the Victoria Falls Summits I and II of August and
September 1998, respectively. A communiqué addressed to the security
concerns of the DRC and those of its neighbours, was issued.
20. Regrettably, as an indication of the persistent uneven treatment of the
Parties, the Court has not given a correct interpretation to the Lusaka
Ceasefire Agreement of 10 July 1999. For example, there is the Court�s
misleading argument that the arrangements made at Lusaka addressed certain
�realities on the ground� and represented �an agreed modus operandi� without
the DRC consenting to the presence of Ugandan troops (Judgment, paragraph
99). This argument would seem to suggest that the parties to the Lusaka
Agreement were merely dealing with a de facto situation of disarming rebels
and withdrawing of foreign troops. However, as the Court acknowledges, the
Agreement shows that it was more than a ceasefire agreement (Judgment,
paragraph 97). It addresses the key aspect of the conflict by the parties to
the Lusaka Agreement,
recognizing that the root cause of the conflict was the use of Congolese
territory by armed bands,
seeking to destabilize or overthrow neighbouring governments.
21. In order to address the root cause of the conflict, Chapter 12 of Annex
A provides that the Parties agreed
�(a) Not to arm, train, harbour on its territory, or render any form of
support to subversive elements or armed opposition movements for the purpose
of destabilising the others;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
(d) To address the problem of armed groups in the Democratic Republic of
Congo in accordance with the terms of the [Lusaka] Agreement.�
(Counter-Memorial of Uganda (Counter-Memorial of Uganda (CMU), Vol. II, Ann.
45, Ann. A, Chapter 12.)
Even the Secretary-General of the United Nations recognized the problem of
armed groups as particularly difficult and sensitive when he stated in a
report that �[i]t lies at the core of the conflict in the subregion and
undermines the security of all the States concerned� (CMU, Vol. III, Ann.
46, para. 21).
22. Thus, while agreeing with the Court that the Lusaka Agreement did not
have a retrospective effect, I do not share the Court�s view that the
calendar for withdrawal (of foreign forces) and its relationship to the
series of major events did not constitute consent by the Congo to the
presence of Ugandan forces for at least 180 days from 10 July 1999 and
beyond that time if the envisaged necessary major events did not occur. As
counsel for Uganda argued during the oral pleadings, there is a linkage
between the disarmament of the armed groups and the subsequent withdrawal of
armed forces of foreign States from the DRC. This is borne out by paragraph
12 of Annex B to the Ceasefire Agreement, where the timetable shows that the
withdrawal of foreign forces would not occur until after a successful
conclusion of the Congolese national dialogue (D-Day FN2 + 90 days), the
disarmament of armed groups (D-Day + 120 days) and the orderly withdrawal of
all foreign forces (D-Day + 180 days) (CMU, Vol. II, Ann. 45, Ann. B).
Indeed there was a delay in the implementation of the Agreement because the
inter-Congolese dialogue did not start as envisaged in the timetable.
---------------------------------------------------------------------------------------------------------------------
FN2
D-Day is the date of the formal signing of the Ceasefire Agreement.
---------------------------------------------------------------------------------------------------------------------
23. The Court, having reached a wrong interpretation, in my view, of the
Lusaka Agreement, proceeds to state that the Luanda Agreement of September
2002, a bilateral agreement between the DRC and Uganda, alters the terms of
the multilateral Lusaka Agreement. I am of the view that the other parties
to the Lusaka Agreement (i.e., Angola, Namibia, Rwanda and Zimbabwe) would
have objected if the bilateral alteration caused problems. The Luanda
Agreement gave impetus to the stalled implementation of the Lusaka
Agreement. I differ once again with the Court�s conclusion that the various
treaties involving the DRC and Uganda did not constitute consent to the
presence of Ugandan troops in the territory of the DRC after July 1999.
�Lusaka� and more explicitly �Luanda� continued the validation in law of
Uganda�s military presence in the DRC.
24. As regards the right of self-defence, the Court has regrettably come to
the conclusion that the legal and factual circumstances for the exercise of
this right by Uganda were not present. Accordingly, it refuses to respond to
the Parties� contentions as to whether and under what conditions
contemporary international law provides for a right of self-defence against
large-scale
attacks by irregular forces. Equally, it holds that the preconditions for
the exercise of self-defence do not exist in the circumstances of the
present case. However, it finds it appropriate to observe in an obiter
dictum that the taking of airports and towns many hundreds of kilometres
from Uganda�s border would not seem proportionate to the series of
transborder attacks Uganda claimed had given rise to the right of
self-defence, nor to be necessary to that end.
25. The refusal by the Court to delve into the question of self-defence
arises from its rejection of the evidence submitted by Uganda. The Court
relies on the Porter Commission Report as the main evidence on this issue.
The role of Brigadier-General James Kazini is central to the Court�s
findings - on when operation �Safe Haven� commenced and on the question of
the occupation of Ituri. Uganda�s argument of the alternative view
concerning the armed bands is set aside.
26. Thus it seems, in the interest of judicial economy, that the Court has
excluded much of the evidence submitted by Uganda on the question of
self-defence. This leads the Court to apply insufficient law to insufficient
facts; hence the failure by the Court to discharge its judicial function in
this respect. For example on the issue of the Sudan, the Court recognizes
that an ICG independent report of August 1998 (�North Kivu into the
Quagmire�) seems to suggest some Sudanese support for the ADF�s activities.
However, the Court acknowledges that the report also implies that this was
not a matter of Congolese policy, but rather a reflection of its inability
to control events along its border. This is a rather surprising position of
the Court. If the report implies the Sudan�s involvement with the ADF, the
Court should have examined it further and linked it to other reports for
corroboration purposes. Instead the Court simply quotes the report as
stating that the ADF was exploiting the incapacity of the Congolese Armed
Forces (FAC) in controlling areas of North Kivu with neighbour Uganda.
27. The Court should have been alerted by the ICG report so as to take into
account other corroborating reports of the Sudan�s support for anti-Uganda
rebels. Such similar documents are
another ICG report of 1999 (�How Kabila lost his way�), which the Court
regards as not constituting reliable evidence. No reason is given as to why
the report is not reliable despite its stating that the DRC had effectively
admitted the threat to Uganda�s security posed by the Sudan.
Annex 108 of the DRC�s Reply quotes reports that indicate that the Sudan had
been flying military supplies from Juba to Kabila forces in Isiro and Dongo.
The same reports refer to 4,000 Sudanese soldiers being engaged in the
conflict. It is worth noting that Isiro is 320 km from Uganda�s borders with
the DRC.
28. One could cite more examples about the Sudanese �connection� with the
DRC and its destabilizing effect on Uganda. It suffices for one to cite the
factor of the Lord�s Resistance Army (LRA). In its Judgment, the Court
refers to a Ugandan military intelligence report, which states that in
August 1998 the Sudan airlifted insurgents from the WNBF and LRA to fight
alongside Congolese forces against RPA and RCD rebels. The Court observes
that, even were that proven, the Congo was entitled so to have acted. One is
led to remark that it would be a strange concept of self-defence that would
allow the airlifting of rebels to the DRC by the Sudan to murder civilians
in either Rwanda or Uganda, which countries were in conflict with the DRC.
And yet, the Court concludes that there was no tripartite conspiracy between
the DRC, the Sudan and the anti-Uganda rebels.
29. As regards the LRA, I wish to underscore the inter-connectivity of the
events in the Great Lakes region. The Sudan had been sponsoring the LRA that
for nearly 20 years had caused massive and grave violations of human rights
and international humanitarian law in northern Uganda. This has led the
Prosecutor of the International Criminal Court to indict five leaders of the
LRA for crimes against humanity. The Sudan was ferrying the LRA rebels to
the DRC in order to create �another frontier� in its conflict with Uganda.
It has also been said that Zaire�s attempt to evict Congolese Tutsi
triggered the Congo crisis. These examples show that the situation in the
DRC has an internal, regional and international dimension. Another dimension
of the inter-connectivity of events in the region is that the Hima people
are to be found in the DRC,
Rwanda, Burundi and Uganda. The various pogroms in Rwanda and Burundi led to
massive inflows of refugees into Uganda and Tanzania in the 1960s. Hence
instability in one country creates instability in another owing to the
ethnic composition of the people. In this situation it is
not easy to tell whether a person belongs to this or that ethnic group.
30. In this regard, the Court fails to recognize the inter-connectivity of
the conflict when it discounts a United States State Department statement of
October 1998, condemning the DRC�s recruitment and training of former
perpetrators of the Rwandan genocide. This lack of awareness
by the Court displays itself by not reacting to Uganda�s complaints about
the DRC�s conflation of Uganda and Rwanda in this case. Notwithstanding the
fact that Uganda has shown several times in its argument its rejection of
offers by Rwanda to participate in joint operations in the DRC, the
Applicant in its pleadings, and the Court in its treatment of the evidence,
have both unwittingly maintained the impression of not appreciating that
Rwanda and Uganda are two different States.
31. As already stated, insurgent activity is at the heart of the conflict in
the region. Even to this day, MONUC is still struggling in joint operations
with the DRC to disarm the various rebel groups, both local and foreign
(Reuters report of 11 November 2005 on an operation in North Kivuprovince).
The DRC, in its Reply, acknowledges that anti-Ugandan armed groups have been
operating from this territory for years: �As they had always done in the
past, the forces of the ADF continued to seek refuge in Congolese
territory.� (Reply of the Democratic Republic of the
Congo (RRDC), Vol. I, para. 3.15.) As if this was right, the DRC argues that
no one, and certainly not their Ugandan counterparts, have ever held the
Congolese authorities responsible for any of these actions. This implies
acquiescence on Uganda�s part.
32. However, Uganda had protested the massacres at Kichwamba Technical
School of 8 June 1998 in which 33 students were killed and 106 abducted, an
attack at Benyangule village on 26 June 1998 in which 11 persons were killed
or wounded, the abduction of 19 seminarians at Kiburara on 5 July 1998 and
an attack on Kasese town on 1 August 1998, in which three persons
were killed. In spite of all this evidence of brutal and deadly attacks, the
Court merely comments
that �[t]he DRC does not deny that a number of attacks took place, but its
position is that the ADF alone was responsible for them� (Judgment,
paragraph 133). The Court concludes that there is no satisfactory proof of
the involvement in these attacks, direct or indirect of the Government of
the DRC:
�The attacks did not emanate from armed bands or irregulars sent by the
DRCor on behalf of the DRC, within the sense of Article 3 (g) of General
Assembly resolution 3314 (XXIX) on the definition of aggression . . . The
Court is of the view that, on the evidence before it, even if this series of
deplorable attacks could be regarded as cumulative in character, they still
remained non-attributable to the DRC.� (Judgment, paragraph 146.)
33. Here the Court seems to reconfirm its 1986 dictum in the Nicaragua case
concerning insurgent activities and what amounts to an �armed attack�. The
DRC, in its Reply already referred to, reasserts that the fact of simply
tolerating or financing irregular forces is not sufficient to establish a
full scale �armed attack�: �For this to be established,� the DRC argues,
�Uganda must prove that the DRC was �substantially involved� in the acts of
irregular forces and hence that the Congolese Government had given specific
instructions or directions to them or had actually controlled the
performance of such acts� (RRDC, Vol. I, para. 3.135).
In its 1986 Nicaragua Judgment, the Court stated the following:
�The Court sees no reason to deny that, in customary law, the prohibition of
armed attacks may apply to the sending by a State of armed bands to the
territory of another State, if such an operation, because of its scale and
effects, would have been classified as an armed attack rather than as a mere
frontier incident had it been carried out by regular armed forces.�
(Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 103,
para. 195.)
34. The Court has thus stuck to its limited interpretation of Article 3 (g)
of General Assembly resolution 3314 (XXIX). By so doing, it is encouraging
that impunity in that proof of the element of �substantial involvement�,
which implies awareness and substantial participation, will be invoked - as
the DRC has done in its pleadings in this case - by culprits to avoid
responsibility for wrongful acts. We have already referred to the
alternative view, which Uganda advanced in the context of self-defence. Even
if the Court found that Uganda had not established the legal and factual
circumstances for the exercise of a right of self-defence, it should have
found that military support by the DRC for anti-Uganda insurgents
constitutes unlawful intervention. Instead of doing this, the Court finds
that Uganda�s first counter-claim, by which Uganda contends that, since
1994, it has been the victim of military operations and other destabilizing
activities carried out by hostile armed groups based in the DRC, cannot be
upheld.
35. Thus the effort of Zaire�s President Mobutu (cited in the counter-claim)
to overthrow President Museveni�s Government since 1994 - and even earlier
since 1986 - is subversive activity, which not only constitutes unlawful
intervention in Uganda�s affairs, but also is
cumulatively tantamount to an armed attack upon Uganda. In my view this,
along with incessant
rebel attacks in the post �Zaire era�, would entitle Uganda to exercise the
right of self-defence
36. In this regard, both the Applicant and the Court have advanced the
argument of the DRC�s inability to rein in anti-Uganda rebels. In its
conclusion on the part of Uganda�s first counter-claim, alleging Congolese
responsibility for tolerating the rebel movements prior to May 1997, the
Court states:
�During the period under consideration both anti-Ugandan and anti-Zairean
rebel groups operated in this area. Neither Zaire nor Uganda were in a
position to put an end to their activities. However . . . the Court cannot
conclude that the absence of action by Zaire�s Government against the rebel
groups in the border area is tantamount to �tolerating� or �acquiescing� in
their activities.� (Judgment, paragraph 301.)
Here, it bears stating that the inability of the DRC to control anti-Uganda
rebels operating from the Congo is contrary to the first principle
enunciated in the Declaration on Friendly Relations and Co-operation
(General Assembly resolution 2625 (XXV) of 24 October 1970): �Every State
has the duty to refrain from organizing or encouraging the organization of
irregular forces of armed forces of armed bands, including mercenaries, for
incursion into the territory of another State.�
The same principle is found in the Corfu Channel case, where it is stated
that it is �every State�s obligation not to allow knowingly its territory to
be used for acts contrary to the rights of other States� (Corfu Channel,
Merits, Judgment, I.C.J. Reports 1949, p. 22).
37. From the constant references in the Court�s Judgment to the DRC�s
inability to control anti-Uganda rebels, one may be forgiven for getting the
impression that the DRC was facing problems of controlling its territory, at
least in the eastern part of its territory. Thus reasons of geography,
incapacity or distance have been invoked to avoid attribution of
responsibility to the DRC for violations of its obligations to its
neighbours, in particular Uganda. Here, a quote from the �Commentary� on the
United Nations Charter is apt:
�A special situation arises, if a State is not reluctant but incapable of
impeding acts of terrorism committed by making use of its territory.
Although such terrorist acts are not attributable to the State, the State
victim of the acts is not precluded from reacting by military means against
the terrorists within the territory of the other State. Otherwise, a
so-called failed State would turn out to be a safe haven for terrorists,
certainly not what Articles 2 (4) and 51 of the Charter are aiming at.� (B.
Simma (ed), The Charter of the United Nations - A Commentary (2nd Edition
2002), Vol. I, page 802, para. 36.)
38. The Court has concluded that Article 51 of the United Nations Charter
does not allow the use of force to protect perceived security interests
beyond the strict confines there laid down. It adds that other means are
available to a concerned State, in which the role of the Security Council
will be paramount. It has not elaborated as to whether Uganda was entitled
to the use of force on a threshold below �armed attack�. Uganda had been
calling for the United Nations Security Council to send a peacekeeping force
to the DRC. It is not enough for the Court to refer Uganda to the Security
Council. It bears mentioning that many tragic situations have occurred on
the African continent due to inaction by the Council.
39. Equally, the Court has accused Uganda of not reporting to the Security
Council events that it had regarded as requiring it to react in
self-defence. In this connection, I wish to quote from Judge Schwebel�s
dissenting opinion in the Nicaragua case:
�A State cannot be deprived, and cannot deprive itself, of its inherent
right [nothing in the Charter shall impair that inherent right, including
the requirement of reporting to the Security Council the measures taken] of
individual or collective self-defence because of its failure to report
measures taken in the exercise of that right to the Security Council.�
(Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 377,
para. 230.)
This reporting requirement has been abused by aggressor States to justify
themselves that by reporting, they had complied with Article 51 of the
Charter concerning self-defence. Hence this requirement should be handled
with caution when it comes to issues of self-defence. In practice, in some
cases, some States are not aware that they are required to report measures
taken. While this is not an excuse, it should be regarded as an extenuating
circumstance.
40. I have voted in favour of the second operative clause of the dispositif
concerning the events in Kisangani. My vote in favour is in respect of the
hostilities between Ugandan and Rwandan military forces in Kisangani. The
mere fighting violated the sovereignty and territorial integrity of the DRC.
I cannot, however, in good conscience, pronounce myself on the violations of
human rights and international humanitarian law because there were such
violations by the many
parties to the DRC conflict, including the DRC. In this regard, my voting in
favour of the fifth and sixth operative paragraphs of the dispositif is only
in respect of the events in Kisangani. As I state below, I disagree with the
Court�s findings on violations of human rights and international
humanitarian law and the unlawful exploitation of the DRC�s natural
resources and thus cannot support a general finding for the making of
reparation to the DRC on these matters.
41. I also agree with the Court on the admissibility of the DRC�s claims in
relation to Uganda�s responsibility for the events in Kisangani. It is not
necessary for Rwanda to be a party to this case in order for the Court to
determine whether Uganda�s conduct violated rules of international law.
While the indispensable third party principle does not apply here, one must
reiterate that the DRC�s conflation of Rwanda and Uganda is uncalled for.
III. Human Rights and International Humanitarian Law
42. The Court has found that Uganda, by the conduct of its armed forces,
which committed acts of killing, torture and other forms of abuses, failed
to discriminate between civilian and military targets and to protect the
civilian population, trained child soldiers, incited ethnic conflict and
failed to take measures to end such conflict; as well as by its failure as
the occupying Power to take measures to respect and ensure respect for human
rights and international humanitarian law in the district of Ituri, violated
its obligations under international human rights law and international
humanitarian law.
43. I have voted against this over-arching finding which mixes up several
issues. The finding contains serious accusations against Uganda. As such a
higher standard of proof is required: �A charge of such exceptional gravity
against a State would require a degree of certainty that has not been
reached here.� (Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p.
17.) It would also seem pertinent to cite the observation by Judge Higgins
in her separate opinion in the Oil Platforms case:
�Beyond a general agreement that the graver the charge the more confidence
must there be in the evidence relied on, there is thus little to help
parties appearing before the Court (who already will know they bear the
burden of proof) as to what is likely to satisfy the Court.� (Oil Platforms
(Islamic Republic of Iran v. United States of America), Judgment, I.C.J.
Reports 2003, p. 234, para. 33.)
44. At the outset of considering this finding by the Court, it bears
repeating that there were massive and egregious violations of human rights
and international humanitarian law in the DRC. As already observed, the DRC
itself is not absolved from blame. Various reports in the public domain
state that vile crimes have been perpetrated in the DRC. Four million people
have died since the conflict began there. As counsel for Uganda stated
during the oral proceedings
�a . . . balanced picture . . . without angels and without demons. It is not
a picture without victims, however, because both Uganda and the DRC are
victims. Victims yes, but entirely innocent, no, because there is no one in
this picture who is totally without blame.� (CR 2005/6, p. 58.)
45. As evidence of the serious accusation against Uganda for the violation
of human rights and international humanitarian law, the Court relies on the
sixth MONUC report of February 2001 and the MONUC�s special report on the
events in Ituri, January 2002-December 2003 (doc. S/2004/573 of 16 July
2004). The Court proceeds to state that the United Nations documents are
corroborated by other credible sources of NGOs, such as the HRW�s report of
July 2003, which is available at https://www.org/reports/2003/ituri0703. For
its part, Uganda asserts that the reports are unreliable and partisan (cites
ASADHO, a Congolese NGO as a case in point). Uganda makes the following
arguments that (a) MONUC did not have a mission (on the ground) appropriate
to investigations of a specifically legal character; (b) the MONUC report
makes assumptions about the causes of the Hema-Lendu conflict, assumptions
which have no historical basis; (c) Uganda finds it anomalous and open to
serious question the supposition that in Ituri Uganda forces should be
associated with patterns of abuse when this did not occur in other regions.
In my view, these are cogent reasons which the Court should have taken into
serious consideration before reaching its finding that Uganda violated human
rights and international humanitarian law in the DRC.
46. I find it remarkable that the DRC accuses Uganda of carrying out a
deliberate policy of terror. Wisely, the Court did not endorse this rather
excessive charge. On the basis of the �clean hands� theory - the principle
that an unlawful action cannot serve as the basis of an action in law - the
DRC should be debarred from raising such accusations.
47. Having in mind the seriousness of the accusations levelled by the DRC,
the Court should have been more cautious and demanded satisfactory evidence
before concluding that the UPDF killed, tortured, and committed other forms
of inhumane treatment against the Congolese civilian population. Relying on
reports of the Special Rapporteurs and MONUC reports is not advisable. As is
known, on a number of occasions, reports of the Special Rapporteurs of the
Human Rights Commission have generated controversies of a political and
legal nature. Instead of helping to find a solution to the situation in
question, the reports were ignored by some of the addressees on the grounds
that they lacked objectivity. In some cases, the writers of the United
Nations reports have no access to the countries concerned. In other cases,
they are ill-informed and thus end up writing speculative reports as will be
illustrated in the next section of this opinion.
48. In this regard, I am troubled by the Court�s finding that there is
persuasive evidence that the UPDF incited ethnic conflicts and took no
action to prevent such conflicts in the Ituri region. It is strange that
Uganda, which had its military presence elsewhere in the DRC, should be
accused of
such a charge only in Ituri. Allegations against Uganda of inciting ethnic
conflict between the Hema and Lendu are based on a mistaken view of the area
in question where 18 different ethnic groups live side by side. Uganda
acknowledges the long-standing rivalry between the Hema and Lendu. Such
rivalry had led to massacres of civilians. Uganda stood to gain nothing by
inciting ethnic conflict. As explained earlier, the spread of the different
ethnic groups in the Great Lakes region is such that based on history and
recent experience, it would be folly for any country to try to fan ethnic
rivalry. It would boomerang.
49. From the United Nations reports, it seems that the rebel groups in the
DRC are the ones that recruited child soldiers and ferried them to Uganda.
For example, the RCD-ML is said to have halted its military recruitment
campaign due to the growing protest of UNICEF and MONUC. Indeed, Uganda
granted access to UNICEF to the children at Kyankwanzi (RDRC, Ann. 32, para.
85). Once again, in my view, there is no evidence to justify the Court�s
conclusion that Uganda recruited child soldiers in the DRC.
IV. The Unlawful Exploitation of Natural Resources
50. I have voted against the fourth operative clause of the dispositif that
finds that Uganda violated obligations owed to the DRC under international
law, by acts of looting, plundering and
exploitation of Congolese natural resources committed by members of the
Ugandan armed forces
in the territory of the DRC and by its failure to comply with its
obligations as occupying Power in the Ituri district to prevent acts of
looting, plundering and exploitation of Congolese natural resources.
51. Counsel for the DRC stated during the oral pleadings that
�this is the very first time that the Court has been called upon to address
the responsibilities of a State for the illegal exploitation of natural
resources which are located in the territory of another State which it
occupies� (CR 2005/5, p. 15).
Counsel for Uganda agreed with this observation. Hence given the nature and
the gravity of the charge, a higher standard of proof is required on the
part of the Applicant to prove that the Respondent committed these acts of
plunder and pillage. The DRC cited various sources for its evidence,
including the United Nations Panel reports on the Illegal Exploitation of
Natural Resources and Other Forms of Wealth of the DRC. It also cited the
Porter Commission, which was set up by the Government of Uganda to
investigate allegations made in United Nations Panel reports, as confirming
the accusation of unlawful exploitation of Congolese natural resources.
52. There is a lot of doubt concerning the reliability of the United Nations
Panel reports. Even the Porter Commission Report, on which the DRC and the
Court rely for evidence on exploitation, criticized the methodology followed
by the United Nations Panels. It states that �it would seem that the
majority of evidence likely to be obtained by such a methodology [of
flexible data collection] would be either hearsay, biased or pure gossip,
all untested� (Porter Commission Report, p. 7). Thus the United Nations
Panel report of 12 April 2001 cites �some sources� as saying that the
Presidents of Rwanda and Uganda and the late President Kabila were
shareholders in BCDI (Banque de Commerce du Development et d�Industrie,
located in Kigali). The Panel then concludes in the same paragraph, �[b]ut
this was not the case� (RRDC, Vol. III, Ann. 69, para. 29). In paragraph 52,
the Panel report alleges that some members of President Museveni�s family
were shareholders of DGLI (The Dara Great Lakes Industries, of which DARA
Forest is a subsidiary). Then the Panel adds �although more investigation is
needed� (ibid, Ann. 69, para. 52).
53. This is the type of gossip that emerges from these United Nations
documents. Thus the Court was forced to rely on the Porter Commission
Report, which according to the Court provides sufficient and convincing
evidence. Here one must caution again over reliance on a single source
as evidence to prove allegations, not only of unlawful exploitation of the
DRC�s natural resources, but also of the use of force. In any case, the
Porter Commission found that there was no Ugandan governmental policy to
exploit the DRC�s natural resources. The Commission also found that
individual soldiers engaged in commercial activities and looting, were
acting in a purely private capacity.
54. In this respect, I find myself in disagreement with the Court�s
conclusion that Uganda is internationally responsible for the acts of
exploitation of the DRC�s natural resources and has violated its obligation
of due diligence in regard to these acts, of failing to comply with its
obligation as an occupying Power in Ituri. The Ugandan soldiers, who
committed acts of looting, did so in violation of orders from the highest
Ugandan authorities. In his radio message of 15 December 1998 to COs and all
UPDF units in the DRC, President Museveni said the following:
�1. Ensure that there is no officer or man of our forces in Congo who
engages in business.
2. Also report to me any other public servant whether currently based in
Congo or not who tries to engage in business in Congo.� (Rejoinder of Uganda
(RU), Vol. III, Ann. 31.)
Hence, in my view, individual acts of UPDF soldiers, committed in their
private capacity and in
violation of orders, cannot lead to attribution of wrongful acts. Paragraph
8 of the Commentary to Article 7 of the draft Articles of the International
Law Commission 2001 distinguishes between unauthorized, but still �official�
conduct, on the one hand and �private� conduct on the other.
55. As noted earlier, the Court reached a finding of occupation in order to
rationalize its finding on human rights and international humanitarian law.
It has done the same in respect of the alleged unlawful exploitation of the
DRC�s natural resources. From this finding, it is easy to invoke jus in
bello in order to engage Uganda�s international responsibility for acts and
omissions of Ugandan troops in the DRC. Uganda has argued that it did not
control the rebel groups that were in charge of parts of eastern Congo in
general and in Ituri in particular. Its limited military presence could not
have made this possible. In any case, the Respondent - just as I do - does
not find the contention of occupation to be proven.
56. The Court has rightly, in my view, not accepted part of the DRC�s final
submission on the violation of the Congo�s permanent sovereignty over its
natural resources (PSNR) because this has not been proven. The PSNR concept
is embodied in General Assembly resolution 1803 (XVII) of 1962. The PSNR was
adopted in the era of decolonization and the assertion of the rights of
newly independent States. It thus would be inappropriate to invoke this
concept in a case involving two African countries. This remark is made
without prejudice to the right of States to own and or dispose of their
natural resources as they wish.
V. Legal Consequences
57. In its fourth submission, the DRC requests the Court to adjudge and
declare that Uganda ceases all continuing internationally wrongful acts,
adopt specific guarantees and assurances of non-repetition and make
reparation for all injury caused. In this regard, I agree with the Court
that there is no evidence of continuing illegal acts on the part of Uganda
in the DRC. As such, there is no need for the Court to make any ruling on
cessation. Uganda, as the DRC acknowledges, withdrew its troops from the DRC
on 2 June 2003. There is therefore no need for specific guarantees and
assurances of non-repetition. The Court has taken judicial notice of the
Tripartite Agreement on Regional Security in the Great Lakes of 26 October
2004. This Agreement between the DRC, Rwanda and Uganda provides for
obligation to respect the sovereignty and territorial integrity of the
countries in the region and cessation of any support for armed groups or
militias.
58. Concerning reparation, this could follow at a subsequent phase of the
proceedings, if the Parties fail to reach agreement after negotiations.
VI. Compliance with the Court�s Order on Provisional Measures
59. The DRC requests the Court to adjudge and declare that Uganda has
violated the Order of the Court on provisional measures of 1 July 2000 by
not complying with the three provisional measures, namely, (a) refrain from
armed action in the DRC; (b) compliance with obligations under international
law, in particular the United Nations and OAU Charters and Security Council
resolution 1304 (2000), and; (c) respect within the zone of conflict for
fundamental human rights
and for the applicable provisions of humanitarian law.
60. The Court notes that the DRC put forward no specific evidence
demonstrating that after July 2000 Uganda committed acts in violation of
each of the three provisional measures. However, the Court finds that Uganda
has violated provisional measures concerning human rights and international
humanitarian law through actions of Ugandan troops during the period of
their presence in the DRC, including the period from 1 July 2000.
61. The Court�s finding that Uganda did not comply with the Order of the
Court on provisional measures of 1 July 2000 shows, as indicated earlier,
lack of concern for the action taken, not in good faith, by the Applicant to
raise this issue against the Respondent when the Applicant itself has
committed grave violations of human rights and international humanitarian
law. Thus, I am constrained not to support the position of the Court on its
finding. The Court, in my view, should not have dealt with the violation of
the provisional measures. I have already referred to the �clean hands�
theory, which I deem to be apt on this issue as well.
VII. Counter-Claims
62. Uganda�s first counter-claim relates to acts of aggression allegedly
committed by the DRC. The second relates to attacks on Uganda�s diplomatic
premises and personnel in Kinshasa and on Ugandan nationals. The third
counter-claim was ruled inadmissible by the Order of the Court of 29
November 2001.
63. I agree with the Court�s reasoning, which rejects Uganda�s claim that
the DRC is not entitled at the merits phase of the proceedings to raise
objections to the admissibility to the counter-claims submitted by Uganda.
In the Oil Platforms case the Court ruled that Iran was entitled to
challenge �the �admissibility� of the [United States�] counter-claim� on the
merits (Oil Platforms (Islamic Republic of Iran v. United States of
America), Judgment, I.C.J. Reports 2003, p. 210, para. 105).
64. I have voted in favour of operative clause 8 of the dispositif by which
the Court rejects objections of the DRC to the admissibility of the first
counter-claim submitted by Uganda. Before proceeding with further
consideration of this counter-claim, I wish to make a general comment on the
way the Court has treated this claim of Uganda - which is the Applicant in
this context and the DRC is the Respondent. It is a matter of regret that
the Court agrees with the DRC�s division of the first counter-claim into
three periods. The Court invokes the excuse of �practical purposes� in
agreeing to divide the counter-claim into three periods: (a) the Mobutu era,
i.e., before May 1997; (b) the Kabila period, i.e., May 1997-August 1998;
(c) the period after 2 August 1998.
65. This �slicing� technique of the first counter-claim is to the
disadvantage of Uganda because as the Applicant in this respect points out
�the DRC is seeking to limit Uganda�s counter-claim�. Uganda maintains that
Zaire and the DRC are not distinct entities and by virtue of the State
continuity principle, it is precisely the same legal person, which is
responsible for the acts complained of in the first counter-claim. The
division of the counter-claim makes it difficult to follow the reasoning of
the Court. Admissibility issues are mixed with those of merits. It would
have been better if the first counter-claim had been dealt with in its
entirety, without dividing it into three periods.
66. I have voted against paragraph 9 of the dispositif by which the Court
finds that the first counter-claim submitted by Uganda cannot be upheld. I
find myself in disagreement with the Court�s dismissal of the evidence
submitted by Uganda - for the first period of the first counter-claim - when
it argues that evidence is of �limited probative value� when it is �neither
relied on by the other Party nor corroborated by impartial, neutral sources�
(Judgment, paragraph 298). This observation of the Court concerns President
Museveni�s address to the Ugandan Parliament on 28 May 2000 entitled
�Uganda�s Role in the Democratic Republic of the Congo�. Evidence by the NGO
Human Rights Watch (HRW) is regarded as �too general to support a claim of
Congolese involvement . . .� (Judgment, ibid). I do not share the Court�s
characterization and treatment of this evidence.
67. In relation to the second period of the first counter-claim, the Court
finds that Uganda has failed to provide conclusive evidence of actual
support for anti-Ugandan rebel groups by the DRC. The Court notes, with
approval, the improved relations between the two Parties. The Court should
have remembered its earlier observation that �[t]he political climate
between States does not alter their legal rights� (Judgment, paragraph 294).
The Court comments that this period is marked by clear action by the DRC
against rebels. If it had accepted evidence by Uganda, it would have noted
the �dual role� by the Congolese highest authorities of seeming to
co-operate with Uganda while at the same time fraternizing with the Sudan
and anti-Ugandan rebels.
68. Regarding the second counter-claim, I have voted in favour of rejecting
the DRC�s objection to the admissibility of the part of the claim relating
to the breach of the 1961 Vienna Convention on Diplomatic Relations
(paragraph 10 of the dispositif). I agree with the Court�s reasoning in its
interpretation of the Order of 29 November 2001.
69. I have voted against operative paragraph 11 of the dispositif, which
upholds the objection of the DRC to the admissibility of the part of the
second counter-claim relating to the maltreatment of persons other than
Ugandan diplomats at Ndjili Airport on 20 August 1998. The invocation by
Uganda of the international minimum standard relating to the treatment of
foreign nationals is considered by the Court as an exercise of diplomatic
protection. Thus according to the Court, Uganda would need to meet the
conditions necessary for the exercise of diplomatic protection, namely, the
requirement of Ugandan nationality of the claimants and the prior exhaustion
of local remedies. The Court avoids dealing with the issue of these persons
on the grounds that it has not been established that they were Ugandan
nationals. In my view, the Court should have invoked international
humanitarian law to protect the rights of these persons. The Court would
seem not to have given enough weight to violations of the rights of these
persons at Ndjili Airport by the DRC.
70. I voted in favour of operative paragraph 12, which finds that the DRC
has violated obligations owed to Uganda under the 1961 Vienna Convention on
Diplomatic Relations by Congo�s armed forces, maltreating Ugandan diplomats
and other individuals at the embassy premises, maltreating Ugandan diplomats
at Ndjili Airport, as well as its failure to provide the Ugandan Embassy and
Ugandan diplomats with effective protection and failure to protect archives
and property from seizure. I also agree with the Court that it will only be
at a subsequent phase, failing an agreement between the Parties, that the
issue of reparation to Uganda will be settled by the Court.
(Signed) J. L. KATEKA. |
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