Case Concerning Armed Activities on the Territory of the Congo: The ICJ Finds Uganda Acted Unlawfully and Orders Reparations
On December 19, 2005, the International Court of Justice (ICJ) issued its final judgment in the Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). The Court held that the armed activities of Uganda in the Democratic Republic of Congo (?DRC?) between August 1998 and June 2003 violated the international prohibition against aggressive use of force as well as international human rights and international humanitarian law. The Court ruled in favor of Uganda on its counter-claim that the DRC violated obligations owed to Uganda under the Vienna Convention on Diplomatic Relations. The Court ordered Uganda to pay reparations to the DRC.
Background, Claims and Counter-Claims
The DRC filed its application to the ICJ in June 1999, alleging that ?acts of armed aggression? carried out by Uganda on DRC territory constituted a ?flagrant violation of the United Nations Charter and the Charter of the Organization of African Unity.? Jurisdiction was found under Article 36(2) of the Statute of the Court; the DRC and Uganda have accepted the compulsory jurisdiction of the Court.
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.
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. The 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 dispute??
Unlawful Use of Force and Violation of Territorial Sovereignty (paras 28-166)
In its first claim the DRC alleged that from August 1998 until June 2003, Uganda illegally maintained troops in the DRC. The DRC conceded that prior to August 1998, then-President Laurent Kabila had welcomed the presence of Ugandan troops to secure the eastern portions of Congo that could not otherwise have been secured following Kabila?s overthrow of President Mobutu Sese Seko in July 1997. This consent was confirmed in an April 1998 Protocol between the DRC and Uganda governing the presence of Ugandan troops. In July 1998, Kabila issued a decree calling for the withdrawal of Rwandan troops in the DRC, which the DRC contended also constituted a formal end to consent to the Ugandan troop presence. The DRC contended that by early August 1998, Kabila had withdrawn any prior consent to the Ugandan troops.
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-defense after September 1998.
The Court relied on official UN reports and the findings of the Porter Commission 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, did not legalize the Ugandan troop presence in DRC, but rather served as modus operandi for the troop withdrawal.
The Court rejected Uganda?s claim of self-defense under Article 51 of the UN Charter. Uganda did not claim that it used force against an anticipated attack. Thus the questions were whether there had been an actual armed attack on Uganda, and if so, whether the DRC was the party responsible for it. But Uganda never claimed it was under attack from the armed forces of the DRC, and the Court found no satisfactory evidence that the government of the DRC was involved in the attacks by other forces that did occur. The Court therefore rejected Uganda?s claim without reaching the question whether Uganda?s use of force met the necessity and proportionality requirements of self-defense. (Paragraphs 146-147.) The Court observed, however, that the taking of airports and towns many hundreds of kilometers outside 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.? (Paragraph 147.)
While the Court concluded that there was no credible evidence to suggest that Uganda created the Movement for the Liberation of Congo (MLC), an irregular force that fought against the DRC government, it found that Uganda provided training and military support to the MLC. Relying on its earlier opinion in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court affirmed 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.?
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 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 on the use of force expressed in Art. 2 paragraph 4 of the Charter.? (Paragraph 165.)
Issue of Belligerent Occupation (paras 167-180)
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. In 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, the Court noted that occupation can be found under the Hague Regulations of 1907 where 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.? (Paragraph 173.) The absence of a structured military administration was irrelevant.
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 Defense Force (UPDF)  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 (paras 181-221)
Having found Uganda to be an occupying power in Ituri, the Court turned to the DRC?s contention that Uganda was responsible for violations of international human rights and humanitarian law in that territory. Those alleged violations included wide-scale massacres of civilians, acts of torture, and other forms of inhumane and degrading treatment. Additional claims included the unlawful seizure by Ugandan soldiers of civilian property, the abduction and forcible conscription of several hundred Congolese children by the UPDF in 2000, and the failure of Ugandan forces to distinguish between combatants and non-combatants, as required under international humanitarian law. On this latter claim, the Court rejected Uganda?s contention that, since it addressed fighting in Kisangani in 2000 that involved Rwandan troops, the claim could not heard absent consent from Rwanda. (Paragraphs 203-204.)
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 State organ. (Paragraphs 213-214.) It further noted that a State?s obligations under human rights instruments ?do not cease in the case of armed conflict.? (Paragraph 216.)
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:
- Fourth Geneva Convention Articles 27, 32, and 53 (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. (Paragraph 219.)
Illegal Exploitation of Natural Resources (paras 222-250)
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.? (Paragraph 242.) The Court declined to find that looting and plundering of natural resources in the circumstance of foreign military intervention amounted to a violation of DRC sovereignty over its natural resources as defined by prior General Assembly resolutions aimed at control of natural resources by post-colonial new independent states. Rather, the Court concluded that the actions of the UPDF forces who engaged in the looting and plundering should be considered violations of jus in bello under the Hague Regulations of 1907 (Art. 47) and the Fourth Geneva Convention of 1949 (Art. 33), which prohibit pillage, and the African Charter (Art. 21) which requires restitution or compensation in the case or spoliation. (Paragraph 245.)
Remedy (paras 251-261)
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.? (Paragraph 259.) 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 (paras 266- 344)
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-claim admissible. Nonetheless, it said that to the extent anti-Ugandan military action was taking place in eastern Zaire prior to May 1997, there was insufficient evidence to show that the Zairean government was able to control those activities. The Court further held that the evidence was insufficient to support Uganda?s claim that the DRC supported anti-Ugandan rebel groups between 1997 and 1998. During this period of cooperation between Uganda and the Kabila government, the DRC engaged in counter-actions against anti-Ugandan rebels and the DRC consented to deployment of Ugandan troops in the border areas. Those portions of the counter-claim relating to activity prior to August 1998 were thus rejected.
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 attacks.? (Paragraph 304.)
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 (Judgment, I.C.J. reports 1980 p. 40, para 86).
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. Paragraph 330.)
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. (Paragraphs 337-338.) 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. (Paragraph 342.)
The voting on each of the central judgments against Uganda was either unanimous or sixteen to one.
The full text of the opinion can be found at http://www.icj-cij.org/icjwww/idocket/ico/ico_judgments/ico_judgment_20051219.pdf
About the author
Margaret E. McGuinness is an ASIL member and Associate Professor of Law at the University of Missouri-Columbia. She is co-editor of and contributing author to Words Over War: Arbitration and Mediation to End Deadly Conflict (Rowman and Littlefield 2000) and most recently is the author of Multilateralism and War: A Taxonomy of Institutional Functions, 51 Vill. L. Rev. 1 (2005). She is a contributing writer at Opinio Juris, a daily weblog on international law.
 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.
 Art. 36 (2) states: ? The States parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law;
(c) the existence of any fact which, if established, would constitute a breach of an international obligation;
(d) the nature or extent of the reparation to be made for the breach of an international obligation.?
 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.
 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.
 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,? Leopoldo Lovelace, Jr., July 2000.
 The Porter Commission, an independent tribunal of inquiry established by the Ugandan government in 2001, issued its findings in May 2003. Because the methods of inquiry followed broadly accepted standards and included testimony of Ugandan officials that contained statements against interest, the Court found the Commission?s factual findings particularly reliable.
 The Luanda Agreement was an accord between the DRC and Uganda intended to govern the withdrawal of Uganda troops from DRC territory.
 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 (i.e. it could not be in compliance with both the troop withdrawal timetables and international law governing non-intervention) and provided evidence of at least temporary DRC consent. Sep. Opinion of Judge Para-Aranguren, paras 1-20.
 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.?
 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.
 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. Sep. Opinion of Judge Simma at paras 4-15.
 I.C.J. Reports 1986, p. 108, para. 206, quoted in paragraph 164 of the current Judgment.
 In their separate opinions, Judges Elaraby and Simma argued that the actions of Uganda should have been adjudicated to amount to unlawful armed aggression.
 This was deemed a necessary threshold issue to determine the governing international humanitarian law as well as the duties owed by Uganda.
 Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 167 paras 78 and p. 172, para 89.
 Judge Kooijmans filed a separate opinion in which he disagreed with this conclusion, preferring instead a consideration of the degree to which the DRC was able to assert its authority in areas beyond Ituri where Ugandan troops were present. Sep. Opinion of Judge Kooijmans at paras 36-54.
 The UPDF is the Ugandan army.
 The Court relied on Certain Phosphate Lands in Nauru (Nauru v. Australia), in which the Court held that where ?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 may assert jurisdiction absent consent of the third State.
 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).
 The Court cited Factory at ChorzÃ³w, Jurisdiction, 1927, P.C.I.J.,Series A, No. 9, p. 21; GabcÃkovo-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).
 Article 22 requires respect for the inviolability of diplomatic premises; Article 29 requires respect for the inviolability of diplomatic persons.
 Judge James Kateka, the ad hoc appointee of Uganda under Art. 31 of the Statute of the Court (Judge Joe Verhoeven sat in as the ad hoc appointee of the DRC), dissented on three of the rulings. He objected to the failure of the Court to clarify the circumstances in which insurgent activities can constitute an ?armed attack,? and further criticized the factual findings of the Court as relying on evidence that was largely one-sided.