CONGO DRC V. UGANDA . ICJ 2005

The ICJ judgment in the case of armed activities on the territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda), 19 December 2005

On 23 June 1999, the Democratic Republic of the Congo (DRC) filed in the Registry of the Court Applications instituting proceedings against Burundi, Uganda and Rwanda “for acts of armed aggression committed . . . in flagrant breach of the United Nations Charter and of the Charter of the Organization of African Unity”. In addition to the cessation of the alleged acts, the DRC sought reparation for acts of intentional destruction and looting and the restitution of national property and resources appropriated for the benefit of the respective respondent States. In its Applications instituting proceedings against Burundi and Rwanda, the DRC referred, as bases for the Court’s jurisdiction, to Article 36, paragraph 1, of the Statute, the New York Convention of 10 December 1984 against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Montreal Convention of 23 September 1971 for the Suppression of Unlawful Acts against the Safety of Civil Aviation and, lastly, Article 38, paragraph 5, of the Rules of Court. However, the Government of the DRC informed the Court on 15 January 2001 that it intended to discontinue the proceedings instituted against Burundi and Rwanda, stating that it reserved the right to invoke subsequently new grounds of jurisdiction of the Court. The two cases were therefore removed from the List on 30 January 2001.

In the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the DRC founded the jurisdiction of the Court on the declarations of acceptance of the compulsory jurisdiction of the Court made by the two States. On 19 June 2000, the DRC filed a Request for the indication of provisional measures to put a stop to all military activity and violations of human rights and of the sovereignty of the DRC by Uganda. On 1 July 2000, the Court ordered each of the two Parties to prevent and refrain from any armed action which might prejudice the rights of the other Party or aggravate the dispute, to take all measures necessary to comply with all of their obligations under international law and also to ensure full respect for fundamental human rights and for the applicable provisions of humanitarian law.

Uganda subsequently filed a Counter-Memorial containing three counter-claims. By an Order of 29 November 2001, the Court found that two of the counter-claims (acts of aggression allegedly committed by the DRC against Uganda; and attacks on Ugandan diplomatic premises and personnel in Kinshasa and on Ugandan nationals for which the DRC is alleged to be responsible) were admissible as such and formed part of the proceedings.

Following oral proceedings in April 2005, the Court handed down its Judgment on the merits on 19 December 2005. The Court first dealt with the question of the invasion of the DRC by Uganda. After examining the materials submitted to it by the Parties, the Court found that from August 1998, the DRC had not consented to the presence of Ugandan troops on its territory (save for the limited exception regarding the border region of the Ruwenzori Mountains contained in the Luanda Agreement). The Court also rejected Uganda’s claim that its use of force, where not covered by consent, was an exercise of self-defence, finding that the preconditions for self-defence did not exist. Indeed, the unlawful military intervention by Uganda was of such magnitude and duration that the Court considered it to be a grave violation of the prohibition on the use of force expressed in Article 2, paragraph 4, of the United Nations Charter.

The Court also found that, by actively extending military, logistic, economic and financial support to irregular forces operating on the territory of the DRC, the Republic of Uganda had violated the principle of non-use of force in international relations and the principle of non-intervention.

The Court then moved to the question of occupation and of the violations of human rights and humanitarian law. Having concluded that Uganda was the occupying power in Ituri at the relevant time, the Court stated that, as such, it was under an obligation, according to Article 43 of the 1907 Hague Regulations, to take all 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 had not been done. The Court also considered that it had credible evidence sufficient to conclude that UPDF (Uganda Peoples’ Defence Forces) troops had committed violations of international humanitarian law and human rights law. It found that these violations were attributable to Uganda.

The third issue that the Court was called upon to examine concerned the alleged exploitation of Congolese natural resources by Uganda. In this regard, the Court considered that it had credible and persuasive evidence to conclude that officers and soldiers of the UPDF, including the most high-ranking officers,had been involved in the looting, plundering and exploitation of the DRC’s natural resources and that the military authorities had not taken any measures to put an end to these acts. Uganda was 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. This was so even when UPDF officers and soldiers had acted contrary to instructions given or had exceeded their authority. The Court found, on the other hand, that it did not have at its disposal credible evidence to prove that there was a governmental policy on the part 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.

In respect of the first counter-claim of Uganda (see above concerning the Order of 29 November 2011), the Court found that Uganda had not produced sufficient evidence to show that the DRC had provided political and military support to anti-Ugandan rebel groups operating in its territory, or even to prove that the DRC had breached its duty of vigilance by tolerating anti-Ugandan rebels on its territory. The Court thus rejected the first counter-claim submitted by Uganda in its entirety.

As for the second counter-claim of Uganda (see above concerning the Order of 29 November 2011), the Court first declared inadmissible the part of that claim relating to the alleged maltreatment of Ugandan nationals not enjoying diplomatic status at Ndjili International Airport. Regarding the merits of the claim, it found, on the other hand, that there was sufficient evidence to prove that there were attacks against the Embassy and acts of maltreatment against Ugandan diplomats at Ndjili International Airport. Consequently, it found that the DRC had breached its obligations under the Vienna Convention on Diplomatic Relations. The removal of property and archives from the Ugandan Embassy was also in violation of the rules of international law on diplomatic relations.

The Court noted in its Judgment that the nature, form and amount of compensation owed by each Party had been reserved and would only be submitted to the Court should the Parties be unable to reach agreement on the basis of the Judgment just rendered by the Court. Following the delivery of the Judgment, the Parties have regularly informed the Court on the progress of negotiations.

On 13 May 2015, noting that the negotiations with Uganda on this question had failed, the DRC asked the Court to determine the amount of reparation owed by Uganda. While Uganda maintained that this request was premature, the Court, in an Order of 1 July 2015, observed that although the Parties had tried to settle the question directly, they had clearly been unable to reach an agreement. The Parties have subsequently filed written pleadings on the question of reparations.

By an Order of 8 September 2020, the Court decided to arrange for an expert opinion, in accordance with Article 67, paragraph 1, of its Rules, on some heads of damage claimed by the DRC, namely the loss of human life, the loss of natural resources and property damage. By an Order of 12 October 2020, the Court appointed four independent experts for that purpose, who submitted a report on reparations on 19 December 2020.

After holding oral proceedings in April 2021, the Court delivered its Judgment on the question of reparations on 9 February 2022, awarding US$225,000,000 for damage to persons, US$40,000,000 for damage to property and US$60,000,000 for damage related to natural resources. It decided that the total amount due should be paid in five annual instalments of US$65,000,000 starting on 1 September 2022, and that, should payment be delayed, post‑judgment interest of 6 per cent would accrue on any overdue amount as from the day after the day on which the instalment was due.

Democratic Republic of the Congo v. Uganda

Order of 1 July 2000

On 23 June 1999, the Democratic Republic of the Congo instituted proceedings against Uganda in respect of a dispute concerning what the applicant referred to as acts of armed aggression perpetrated by Uganda on the territory of the Congo. In its application, the Congo based the jurisdiction of the Court on the declarations made by the two States under Article 36, paragraph 2, of the Statute.

On 19 June 2000 the Congo then submitted to the Court a request for the indication of provisional measures by which it inter alia asked the Court to request Uganda to order its army to withdraw immediately and completely from the disputed area; to order its army to cease all fighting or military activity on the territory of the Congo and to withdraw immediately and completely from that territory; and finally to also desist from providing any support to any State, group, organization, movement or individual engaged or preparing to engage in military activities on the territory of the Congo.

In its order, the Court noted that the two Parties had each made a declaration recognizing the jurisdiction of the Court in accordance with Article 36, paragraph 2, of the Statute without any reservation which therefore constituted a prima facie basis upon which its jurisdiction in the case could be founded.

Besides and notwithstanding the fact that the very same situation had already been dealt with by the Security Council in its resolution 1304 (2000), adopted under Chapter VII of the United Nations Charter on 16 June 2000, the Court is not precluded from acting in accordance with its Statute and with the Rules of Court, since no provision similar to Art. 12 of the United Nations Charter is to be found anywhere in the Charter with respect to the Security Council and the Court.

The Court further stated that it is not precluded from indicating provisional measures in a case merely because a State which has simultaneously brought a number of similar cases before the Court seeks such measures in only one of them.

Given the situation on the ground, the Court then found that there existed a serious risk of events occurring which might aggravate or extend the dispute or make it more difficult to resolve. Accordingly it requested both Parties to 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; that both Parties must 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; and that they must 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.

Judges Oda and Koroma appended declarations to the order.

SUMMARIES OF THE CASE

The background to the case

The background to the ICJ case goes back to the fall of President Habyarimana‘s Government in Rwanda, and the resulting situation in Rwanda and its consequences for the region. The DRC failed to deter incursions by the Interahamwe militia from its territory into that of Rwanda. In addition, Congolese armed forces had attacked local Tutsis (Banyamulenge) in Eastern DRC, an event which prompted Rwanda and Uganda to give support to the rebel groups in the DRC in their fight against former President Mobutu, as a way of neutralizing armed activities by the interahamwe and other armed forces. When Mobutu fled, President Joseph Kabila assumed power in DRC with the support of Rwanda and Uganda. However, tensions arose between Kabila and his former allies, with Kabila calling for the withdrawal of foreign troops; thereafter he was killed.

The ICJ judgment in the case of armed activities on the territory of the Congo (Democratic Republic of the Congo (DRC) v. Uganda), 19 December 2005

The ICJ found that Uganda had breached several of its obligations under international law and that the DRC had violated the Vienna Convention on Diplomatic Relations.

First, the Courtstated that the principles of non-use of force in international relations and of non-intervention were violated by Uganda, because of its occupation of Ituri (which is an area the size of Germany) and its actively extending military, logistic, economic and financial support to irregular forces having operated on the territory of the DRC. This is an important finding of the Court because it is the first time an African country has been held responsible for violating the principles of non-use of force and of non-intervention because of its support to armed groups. This will be of importance in the peace process in the region.

Second, the Court decided that numerous obligations under international humanitarian law and human rights law had been breached by Uganda. The Court condemned the conduct of Uganda’s armed forces which committed acts of torture and other forms of inhuman treatment of the Congolese civilian population, failed to distinguish between civilian and military targets, trained child soldiers and incited ethnic conflict and also the failure of Uganda, as an occupying Power, to take measures to respect and ensure respect for human rights and international humanitarian law in Ituri.

Uganda’s claim that it acted in self-defence was not accepted. First of all, the Court considered that there was no proof justifying the claim. It went on to say that Uganda did not report its action in purported self-defense to the Security Council and that it had never claimed to have been the victim of an armed attack by the DRC, but rather by armed groups operating in the DRC. On this issue, Judge Simma expressed his disappointment that the ICJ failed to deal with the issue of self-defence against attacks by armed groups, rather than by States. (The speaker remarked that for cases involving the use of force, the ICJ tended to use the Nicaragua case as a precedent. This may be an impediment to the flexibility of jurisprudence.)

Thirdly, although the ICJ found that there was no policy of looting in the Ugandan armed forces, Uganda was held responsible for the illegal exploitation of Congolese natural resources, because of its failure to prevent acts of looting, plundering and exploitation by its armed forces and by armed groups in the region. As an occupying Power it had the responsibility to prevent these groups from looting. This finding is important for the peace process, because Uganda will no longer be able to claim that its exploitation of Congolese natural resources was not illegal.

Finally, as regards Uganda’s counterclaim relating to the maltreatment by the DRC of diplomats and foreign nationals at Ndjili International Airport on 20 August 1998, the Court upheld the claim with regard to the diplomats but found that Uganda could invoke a breach of the Vienna Convention on Diplomatic Relations only for the diplomats. For other nationals it would have to rely on diplomatic protection, but because it had not been proven that those who were maltreated had Ugandan nationality, this claim was denied.

The Court found that the DRC had violated obligations owed to the Republic of Uganda under the Vienna Convention on Diplomatic Relations of 1961. First, armed forces of the DRC attacked the Ugandan Embassy in Kinshasa, maltreated Ugandan diplomats and other individuals on the Embassy premises as well as Ugandan diplomats at Ndjili International Airport. Second, the DRC failed to provide the Ugandan Embassy and Ugandan diplomats with effective protection and Ugandan property from being seized from the Embassy.

Reparations have to be made for all damages caused by these violations of international law. Since the ICJ has not made a specific award of reparations this may prove to be an obstacle in negotiations between Uganda and the DRC.