Case Note on Armed Activities on the Territory of the Congo (Democratic Republic of Congo vs Uganda)

Background
The Democratic Republic of Congo (DRC) asked the Court to decide that, beginning from 02 August 1998, Uganda had taken part in "outfitted hostility" in the DRC. It contended that Uganda:

1. participated in military and paramilitary exercises against the DRC,
2. involved DRC region, and
3. gave military, strategic, monetary and financial help to equipped gatherings in the DRC who worked against the public authority;

That Uganda committed and neglected to forestall infringement of basic freedoms and philanthropic regulation; and

That Uganda took part in and neglected to forestall the unlawful double-dealing of Congolese normal assets.

The DRC looked for as cures, for instance, the discontinuance of globally unjust demonstrations, restitution, and certifications of non-redundancy.

Facts of the Case
In 1997, President Kabila came into power in the DRC, with the help of Uganda and Rwanda. Initially, Ugandan and Rwandan forces were present in the DRC following DRC's invitation and consent. Then, the DRC's relations with Uganda and Rwanda deteriorated, and on 28 July 1998, President Kabila announced the withdrawal of the DRC's consent to Rwandan military presence in the DRC. On 8 August 1998, Kabila accused both Ugandan and Rwandan forces of invading the DRC.

In June 2003, Ugandan forces completely withdrew from the DRC. DRC argued that Uganda occupied DRC territory, while Uganda argued its presence in the DRC was justified:

1. until 11 September 1998, based on DRC's invitation;
2. from 11 September 1998 until 10 July 1999, based on self-defense; and
3. from July 1999 until June 2003, based on DRC's consent.

Claims
The DRC submitted three claims:

1. by engaging in military and paramilitary activities against the DRC and by occupying DRC territory and actively extending military, economic and financial support to irregular forces operating in the DRC, Uganda violated international law governing non-use of force, peaceful settlement of disputes, respect of sovereignty, and non-intervention;
    
2. by committing acts of violence against DRC nationals and destroying their property, and by failing to prevent such acts by persons under its control, Uganda violated international legal obligations to respect human rights, including the obligation to distinguish between civilian and military objectives during armed conflict; and
    
3. by exploiting Congolese natural resources and pillaging DRC assets and wealth, Uganda violated international law governing rules of occupation, respect for sovereignty over natural resources, right to self-determination of peoples, and the principles of non-interference in domestic matters.

Counter Claims
Uganda filed three counter-claims:

1. the DRC used force against Uganda in violation of the Article 2(4) of the UN Charter;
2. the DRC allowed attacks on Ugandan diplomatic premises and personnel in Kinshasa in violation of the law of diplomatic protection; and
3. the DRC violated certain elements of the 1999 Lusaka Agreement.

In its order of November 2001, the Court found the first and second claims formed part of the same factual complex as the DRC claims and were therefore admissible under Article 80 of the Rules of the Court. 4The third counter-claim was deemed inadmissible on the ground it was not directly connected to the subject-matter of the DRC claims.

On July 1, 2000, the Court issued provisional measures requiring that both parties refrain from any action which might prejudice the rights of the other party or which might aggravate or extend the dispute5

Unlawful Use of Force and Violation of Territorial Sovereignty
its initial case the DRC asserted that from August 1998 until June 2003, Uganda illicitly kept up with troops in the DRC. The DRC surrendered that before August 1998, then-President Laurent Kabila had invited the presence of Ugandan soldiers to get the eastern segments of Congo that couldn't in any case have been gotten following Kabila's defeat of President Mobutu Sese Seko in July 1997.

This assent was affirmed in an April 1998 Protocol between the DRC and Uganda overseeing the presence of Ugandan soldiers. In July 1998, Kabila gave a declaration requiring the withdrawal of Rwandan soldiers in the DRC, which the DRC battled likewise comprised a proper finish to agree to the Ugandan troop presence. The DRC fought that by early August 1998, Kabila had removed any earlier agree to the Ugandan soldiers.

Uganda argued in response that, despite language referring to all foreign troops, the July 1998 decree was not intended to address Uganda. Uganda contended that the April 1998 Protocol served as an agreement governing the presence of Ugandan troops, and any DRC withdrawal of consent to Ugandan troops would require formal renunciation of and withdrawal from the Protocol. Uganda further argued that, even if the Court were to find there was no consent for its presence and its military engagements, it was entitled to use force in self-defence after September 1998.

The Court relied on official UN reports and the findings of the Porter Commission6 to conclude that DRC consent to the Ugandan troop presence had been effectively withdrawn by August 1998. The Court found that the April 1998 Protocol on troop presence did not require more formal renunciation, and that later agreements, i.e., the Lusaka Agreement of 1999 and the Luanda Agreement of 2002,7 did not legalize the Ugandan troop presence in DRC, but rather served as modus operandi for the troop withdrawal.8

The Court dismissed Uganda's case of self-protection under Article 51 of the UN Charter. 9Uganda didn't guarantee that it utilized force against an expected assault. Hence the inquiries were whether there had been a genuine equipped assault on Uganda, and provided that this is true, whether the DRC was the party liable for it. Yet, Uganda never guaranteed it was enduring an onslaught from the military of the DRC,10 and the Court found no acceptable proof that the public authority of the DRC was engaged with the assaults by different powers that happened.

The Court accordingly dismissed Uganda's case without arriving at the inquiry whether Uganda's utilization of power met the need and proportionality necessities of self-defense.11 The Court noticed, nonetheless, that the taking of air terminals and towns a huge number of kilometers outside Uganda's line wouldn't appear to be proportionate to the series of transborder assaults it guaranteed had led to one side of self-preservation, nor to be important with that in mind.

The Court thus held that Uganda had violated the sovereignty and territorial integrity of the DRC, that Uganda's actions constituted an interference in the internal affairs of the DRC, and 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 Art. 2 paragraph 4 of the Charter.13

Issue of Belligerent Occupation
Before addressing the next two submissions made by the DRC, the Court determined that Uganda's presence and military activity in eastern DRC between August 1998 and June 2003 constituted belligerent occupation under international humanitarian law. 14In so holding, the Court rejected Uganda's argument that, because its troops were largely confined to border regions and it had not established a military administration, it was not an occupying power.

Citing the Israeli Barrier case,15 the Court noted that occupation can be found under the Hague Regulations of 1907 where the territory is actually placed under the authority of the hostile army, and that the occupation only extends to areas where such authority has been established and can be exercised. The test for occupation was thus whether Ugandan 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. The absence of a structured military administration was irrelevant.16

The Court concluded that Uganda was the occupying power in the Ituri district, where Ugandan troops were present and where it was undisputed that a commander of the Ugandan People's Defence Force (UPDF) 17 had in June 1999 created a province called Kibali-Ituri and had appointed a provisional governor.

Violations of International Human Rights Law and International Humanitarian Law
Having viewed Uganda as a possessing power in Ituri, the Court went to the DRC's dispute that Uganda was liable for infringement of worldwide common liberties and philanthropic regulation in that domain. Those supposed infringement included wide-scale slaughters of regular people, demonstrations of torment, and different types of unfeeling and debasing treatment.

Extra cases incorporated the unlawful seizure by Ugandan warriors of regular citizen property, the kidnapping and effective enrolment of a few hundred Congolese youngsters by the UPDF in 2000, and the disappointment of Ugandan powers to recognize soldiers and non-warriors, as expected under global philanthropic regulation. On this last option guarantee, the Court dismissed Uganda's conflict that, since it tended to battling in Kisangani in 2000 that elaborate Rwandan soldiers, the case couldn't heard missing assent from Rwanda.18

The Court found that the acts or omission of UPDF forces were attributable to Uganda, even where such acts may have been outside the scope of a soldier's or officer's authority, as the UPDF is a part of state. .It further noted that a State's obligations under human rights instruments ?do not cease in the case of armed conflict.

The Court concluded that the acts committed by UPDF and its officers and soldiers violated customary international law as reflected in Articles 25, 27, 28, 43, 46 and 47 of the 1907 Hague Regulations, and also violated the following treaty obligations of Uganda:

1. Fourth Geneva Convention Articles 27, 32, and 53 (obligations of an occupying power);
2. International Covenant on Civil and Political Rights, Articles 6, paragraph 1 and 7;
3. First Protocol Additional to the Geneva Conventions of 12 August 1949, Articles 48, 51, 52, 57, 58, and 75, paragraphs 1 and 2;
4. African Charter on Human and People's Rights, Articles 4 and 5;
5. Convention on the Rights of the Child, Article 38, paragraphs 2 and 3;
6. Optional Protocol to the Convention on the Rights of the Child, Articles 1, 2, 3 paragraph 3, 4, 5, and 6.

Illegal Exploitation of Natural Resources
The final submission of the DRC claimed that Uganda had violated international conventional and customary law, including the jus in bello duties owed by an occupying power, by engaging in the illegal exploitation of Congolese natural resources and looting and pillaging Congolese assets and wealth. While the Court stopped short of finding an official Ugandan governmental policy directed at exploiting resources in the DRC, it found 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.

The Court declined to find that plundering and pillaging of normal assets in the situation of unfamiliar military mediation added up to an infringement of DRC sway over its regular assets as characterized by earlier General Assembly goals focused on control of normal assets by post-pioneer new free states.19

Rather, the Court presumed that the activities of the UPDF powers who participated in the plundering and ravaging ought to be viewed as infringement of jus in bello under the Hague Regulations of 1907 (Art. 47) and the Fourth Geneva Convention of 1949 (Art. 33), which disallow plunder, and the African Charter (Art. 21) which requires compensation or remuneration for the situation or spoliation.

Remedy
The Court granted the DRC's request for reparations, noting under prior precedent 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.

In the event the parties fail to reach a settlement, the amount of reparations will be determined by the Court at a future proceeding because Uganda maintained troops in the DRC until June 2003 and because the Court found that Uganda actions up to June 2003 violated international law, the Court found that Uganda had failed to comply with the provisional measures order of July 2000.

Counter-Claims of Uganda
In its first counter-claim, Uganda alleged broadly that since 1994 it had been a victim of hostilities and other destabilizing activities of armed groups based in the DRC (until 1997, known as Zaire). Uganda alleged that these armed groups were supported by both Sudan and the DRC, and the activities against Ugandan forces were coordinated by Sudan and Congolese armed forces.

Uganda relied on the Corfu Channel case as a basis for the claim that, by allowing Sudan and other armed groups to attack Uganda, the DRC was in violation of the principle of non-use of force. Moreover, Uganda argued that the DRC's support between 1997 and 1998 for anti-Uganda irregular forces could not be justified on grounds of self-defense, as these activities predated Uganda's decision to deploy troops into the DRC.

The Court found the full counter-guarantee allowable. Regardless, it expressed that to the degree hostile to Ugandan military activity was occurring in eastern Zaire preceding May 1997, there was lacking proof to show that the Zairean government had the option to control those exercises. The Court additionally held that the proof was inadequate to help Uganda's case that the DRC upheld against Ugandan revolutionary gatherings somewhere in the range of 1997 and 1998.

During this time of collaboration among Uganda and the Kabila government, the DRC participated in counter-activities against hostile to Ugandan agitators and the DRC agreed to organization of Ugandan soldiers in the boundary regions. Those bits of the counter-guarantee connecting with movement preceding August 1998 were in this way dismissed.

The Court rejected the rest of the counter-claim relating to activities after August 1998 because the Court had held that Uganda was liable for illegal use of force against the DRC during that period, it followed that, under Article 51 of the UN Charter, the DRC was entitled to use force in order to repel Uganda's attack.

The second counter-claim involved allegations of the August 1998 storming of the Ugandan embassy in Kinshasa by Congolese soldiers as well as looting and misappropriation of Ugandan diplomatic properties in Kinshasa following the evacuation of the last Ugandan diplomats in September 1998. Uganda alleged that each of the actions breached international diplomatic and consular law, in particular the 1961 Vienna Convention on Diplomatic Relations (Vienna Convention).

The Court found that the Vienna Convention continues to apply regardless of whether a state of armed conflict exists, and further requires accommodation for safe evacuation of diplomatic personnel in the event of conflict. It also requires the respect of diplomatic property and premises in the event diplomatic relations are breached between the sending and receiving States. This principle was upheld in United States Diplomatic and Consular Staff in Tehran.

The Court rejected the DRC argument that the alleged breaches of the Vienna Convention were not factually related to the DRC claim of illegal use of force, noting that counter-claims do not have to be based on identical legal instruments of the claims to meet the connection test under Art. 80 of the Court's Rules. It also rejected the DRC's contention that Uganda's failure to exhaust local remedies rendered the claim inadmissible. The Court noted exhaustion of local remedies was not required because Uganda was not seeking remedy to injury to the individual victims, but was vindicating its own rights under the Vienna Conventions.

Turning to the merits, the Court found sufficient evidence to support a finding that attacks against the Embassy and mistreatment of Ugandan diplomats had taken place including mistreatment of diplomats outside the Embassy -- and that the DRC had breached its obligations under Articles 22 and 29 of the Vienna Convention.21 The Court further found that, to the extent looting of Ugandan diplomatic premises had been carried out by militia groups, the DRC had an obligation to prevent such actions.

The voting on each of the central judgments against Uganda was either unanimous or sixteen to one.22

References:

1. The original case was brought against Uganda, Burundi and Rwanda. The DRC discontinued the cases against Burundi and Rwanda in 2001 and filed a new submission against Rwanda in 2002. The public hearings in the Rwanda case have taken place and a final decision of the ICJ is pending.
2. The Lusaka Agreement, which set terms for a multilateral ceasefire in the conflict in the DRC, was signed in July 1999 by the DRC, Uganda, Rwanda, Burundi, Angola, Namibia and Zimbabwe.
3. Article 80 allows counter-claims that are directly connected with the subject-matter of the claim of the other party and come within the jurisdiction of the Court.
4. See ASIL Insight, Armed Activities on the Territory of the Congo: The International Court of Justice Orders the Parties to Refrain from Armed Action and Ensure Respect for Human Rights
5. The Porter Commission, an independent tribunal of inquiry established by the Ugandan government in 2001, issued its findings in May 2003.
6. The Luanda Agreement was an accord between the DRC and Uganda intended to govern the withdrawal of Uganda troops from DRC territory
7. Judge Parra-Aranguren, while concurring in the judgment, disagreed with this conclusion, noting that the Lusaka and Luanda agreements, along with two additional agreements governing troop disengagements, created a legal impossibility for Uganda
8. Article 51 states in part that nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member.
9. Many other factions were fighting in eastern Congo during the time period. The Court limited its finding to whether Uganda had been under attack from DRC forces.
10. Judge Simma noted in his separate opinion that the Court declined to adjudicate whether any cross-border attack my anti-Ugandan rebel groups would have been sufficient to reach the threshold of armed attack under Art. 51, a question the Court left open in the Nicaragua judgment.
11. I.C.J. Reports 1986, p. 108, para. 206, quoted in paragraph 164 of the current Judgment.
12. These are General Assembly resolutions 1803 (1962), 3201 (1974) (Declaration of the Establishment of the New International Economic Order), and 3281 (1974) (Charter of Economic Rights and Duties of States)
13. The Court cited Factory at Chorzów, Jurisdiction, 1927, P.C.I.J.,Series A, No. 9, p. 21; Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J.Reports 1997, p. 81, para. 152; and Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J. Reports 2004, p. 59, para. 119).