CR 2005/7
Cour internationale International Court
de Justice of Justice
LAAYE THAEGUE
ANNÉE 2005
Audience publique
tenue le lundi 18 avril 2005, à 10 heures, au Palais de la Paix,
sous la présidence de M. Shi, président,
en l’affaire des Activités armées sur le territoire du Congo
(République démocratique du Congo c. Ouganda)
________________
COMPTE RENDU
________________
YEAR 2005
Public sitting
held on Monday 18 April 2005, at 10 a.m., at the Peace Palace,
President Shi presiding,
in the case concerning Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda)
____________________
VERBATIM RECORD
____________________ - 2 -
Présents : M. Shi,président
Ricepra,ident
KorMoMa.
Vereshchetin
Higgimse
Parra-A.anguren
Kooijmans
Rezek
Al-Khasawneh
Owada
Simma
Tomka
Ajbresam,
VerhoMev.en,
jugetseka, ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 3 -
Present: Presienit
Vice-Presideetva
Judges Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Owada
Simma
Tomka
Abraham
Judges ad hoc Verhoeven
Kateka
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 4 -
Le Gouvernement de la République du Congo est représenté par :
S. Exc. M. Honorius Kisimba Ngoy Ndalewe, ministre de la justice et garde des sceaux de la
République démocratique du Congo,
comme chef de la délégation;
S.Exc. M.Jacques Masangu-a-Mwanza, ambassadeu r extraordinaire et plénipotentiaire auprès du
Royaume des Pays-Bas,
coagment;
M. Tshibangu Kalala, avocat aux barreaux de Kinshasa et de Bruxelles,
comme coagent et avocat;
M. Olivier Corten, professeur de droit international à l’Université libre de Bruxelles,
M. Pierre Klein, professeur de droit internationa l, directeur du centre de droit international de
l’Université libre de Bruxelles,
M. Jean Salmon, professeur émérite à l’Université lib re de Bruxelles, membre de l’Institut de droit
international et de la Cour permanente d’arbitrage,
M. Philippe Sands, Q.C., professeur de droit, dire cteur du Centre for International Courts and
Tribunals, University College London,
comme conseils et avocats;
M. Ilunga Lwanza, directeur de cabinet adjoint et conseiller juridique au cabinet du ministre de la
justice et garde des sceaux,
M. Yambu A Ngoyi, conseiller principal à la vice-présidence de la République,
M. Mutumbe Mbuya, conseiller juridique au cabinet du ministre de la justice,
M. Victor Musompo Kasongo, secrétaire particulier du ministre de la justice et garde des sceaux,
M. Nsingi-zi-Mayemba, premier conseiller d’am bassade de la République démocratique du Congo
auprès du Royaume des Pays-Bas,
Mme Marceline Masele, deuxième conseillère d’ ambassade de la République démocratique du
Congo auprès du Royaume des Pays-Bas,
commceonseillers;
M. Mbambu wa Cizubu, avocat au barreau de Kinshasa (cabinet Tshibangu et associés),
M. François Dubuisson, chargé d’enseignement à l’Université libre de Bruxelles,
M. Kikangala Ngoie, avocat au barreau de Bruxelles, - 5 -
The Government of the Democratic Republic of the Congo is represented by:
His Excellency Mr. Honorius Kisimba Ngoy Ndalewe, Minister of Jus tice, Keeper of the Seals of
the Democratic Republic of the Congo,
as Head of Delegation;
His Excellency Mr. Jacques Masangu-a-Mwanza, Amb assador Extraordinary and Plenipotentiary
to the Kingdom of the Netherlands,
as Agent;
Maître Tshibangu Kalala, member of the Kinshasa and Brussels Bars,
as Co-Agent and Advocate;
Mr. Olivier Corten, Professor of International Law, Université libre de Bruxelles,
Mr. Pierre Klein, Professor of International Law, Director of the Centre for International Law,
Université libre de Bruxelles,
Mr. Jean Salmon, Professor Emeritus, Université libre de Bruxelles, member of the Institut de droit
international and of the Permanent Court of Arbitration,
Mr. Philippe Sands, Q.C., Professor of Law, Director of the Centre for International Courts and
Tribunals, University College London,
as Counsel and Advocates;
Maître Ilunga Lwanza, Deputy Directeur de cabinet and Legal Adviser, cabinet of the Minister of
Justice, Keeper of the Seals,
Mr. Yambu A. Ngoyi, Chief Adviser to the Vice-Presidency of the Republic,
Mr. Mutumbe Mbuya, Legal Adviser, cabinet of the Minister of Justice,
Mr. Victor Musompo Kasongo, Private Secretary to the Minister of Justice, Keeper of the Seals,
Mr. Nsingi-zi-Mayemba, First Counsellor, Embassy of the Democratic Republic of the Congo in
the Kingdom of the Netherlands,
Ms Marceline Masele, Second Counsellor, Embassy of the Democratic Republic of the Congo in
the Kingdom of the Netherlands,
as Advisers;
Maître Mbambu wa Cizubu, member of the Kinshasa Bar (law firm of Tshibangu and Partners),
Mr. François Dubuisson, Lecturer, Université libre de Bruxelles,
Maître Kikangala Ngoie, member of the Brussels Bar, - 6 -
Mme Anne Lagerwall, assistante à l’Université libre de Bruxelles,
Mme Anjolie Singh, assistante à l’University College London, membre du barreau de l’Inde,
comme assistants.
Le Gouvernement de l’Ouganda est représenté par :
S. Exc. E. Khiddu Makubuya, S.C., M.P., Attorney General de la République de l’Ouganda,
comme agent, conseil et avocat;
M. Lucian Tibaruha, Solicitor General de la République de l’Ouganda,
comme coagent, conseil et avocat;
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre du barreau d’Angleterre, membre de la
Commission du droit international, professeur émérite de droit international public à
l’Université d’Oxford et ancien titulaire de la chaire Chichele , membre de l’Institut de droit
international,
M. Paul S. Reichler, membre du cabinet Foley Hoag, LLP, à Washington D.C., avocat à la Cour
suprême des Etats-Unis, membre du barreau du district de Columbia,
M. Eric Suy, professeur émérite à l’Université cat holique de Leuven, ancien Secrétaire général
adjoint et conseiller juridique de l’Organisation des Nations Unies, membre de l’Institut de droit
international,
S. Exc. l’honorable Amama Mbabazi, ministre de la défense de la République de l’Ouganda,
M. Katumba Wamala, (PSC), (USA WC), général de division, inspecteur général de la police de la
République de l’Ouganda,
comme conseils et avocats;
M. Theodore Christakis, professeur de droit in ternational à l’Université de Grenoble II
(Pierre Mendès France),
M. Lawrence H. Martin, membre du cabinet Foley Hoag, LLP, à Washington D.C., membre du
barreau du district de Columbia,
commceonseils;
M. Timothy Kanyogongya, capitaine des forces de défense du peuple ougandais,
comme conseiller. - 7 -
Ms Anne Lagerwall, Assistant, Université libre de Bruxelles,
Ms Anjolie Singh, Assistant, University College London, member of the Indian Bar,
as Assistants.
The Government of Uganda is represented by:
H.E. the Honourable Mr. E. Khiddu Makubuya S.C., M.P., Attorney General of the Republic of
Uganda,
as Agent, Counsel and Advocate;
Mr. Lucian Tibaruha, Solicitor General of the Republic of Uganda,
as Co-Agent, Counsel and Advocate;
Mr. Ian Brownlie, C.B.E, Q.C., F.B.A., member of the English Bar, member of the International
Law Commission, Emeritus Chichele Professor of Public International Law, University of
Oxford, member of the Institut de droit international,
Mr. Paul S. Reichler, Foley Hoag LLP, Washington D.C., member of the Bar of the United States
Supreme Court, member of the Bar of the District of Columbia,
Mr. Eric Suy, Emeritus Professor, Catholic University of Leuven, former Under Secretary-General
and Legal Counsel of the United Nations, member of the Institut de droit international,
H.E. the Honourable Amama Mbabazi, Minister of Defence of the Republic of Uganda,
Major General Katumba Wamala, (PSC), (USA WC), Inspector General of Police of the Republic
of Uganda,
as Counsel and Advocates;
Mr. Theodore Christakis, Professor of International Law, University of Grenoble II (Pierre Mendes
France),
Mr. Lawrence H. Martin, Foley Hoag LLP, Washington D.C., member of the Bar of the District of
Columbia,
as Counsel;
Captain Timothy Kanyogonya, Uganda People’s Defence Forces,
as Adviser. - 8 -
The PRESIDENT: Please be seated. The sitting is open. Before giving the floor to Uganda,
I would like to inform you that JudgesBuergentha l and Elaraby for reasons of which they have
duly notified me are unable to be present on the Bench today. Professor Brownlie, you have the
floor.
Mr. BROWNLIE: Thank you, Mr. President.
S ELF -DEFENCE
Introduction and Propositions
1. Mr. President, distinguished Members of the Court, it is an honour to appear before you to
present the argument on behalf of the Republic of Uganda.
2. If I may begin by stating some propositions which will provide an epitome of the case in
relation to the issue of lawful self-defence.
First, the Congo has throughout the pleadings, and beginning with the request for interim
measures, been long on accusations and short on matters of proof.
Second, Uganda has been faced with a long-term problem of border insecurity from at least
1994 and until April 1998. The problem reflecte d the endemic instability in the eastern provinces
of the Congo and the absence of adequate control of these areas by the central Government.
Third, after May1998, and until Uganda took the necessary palliative action in
September 1998, the short-term security situation deteriorated rapidly.
Fourth, a key element in the increased threat to Uganda’s security was the alliance between
the Congo and the Sudan in May 1998, and the major role assumed by the Sudan in training troops,
delivering weapons and, eventually, taking a comb at role in military me asures directed against
Uganda.
Fifth, by August1998, the Sudan, which had fo r long been involved in armed activities
against Uganda on the northern boundary of Uganda, had access to, and was making use of, a series
of military airfields in the northern Congo.
These propositions must be supplemented by an appreciation of the political background and
the presence of no less than seven groups of an ti-Uganda insurgents in eastern Congo, groups
which were used as an instrument of national policy by the Congo central Government. - 9 -
3. The armed groups present in the easter n Congo in August and September1998 were as
follows:
First
The Allied Democratic Forces (ADF). At the material time this was an anti-Uganda
insurgent group based in the Congo, supported by both the Government of the Congo and the
Government of the Sudan.
The ADF had a major role in the conflicts and threats to Uganda’s security and this role
begins in 1996. The anti-Ugandan activities of th e ADF have been described in Uganda’s written
pleadings (see the Counter-Memorial, paras. 19-20, 22-23, 387-396; and the Rejoinder,
paras.59-77, 81-82, 655-674). And it is appropria te for my learned friend, Mr.Reichler, to have
given prominence to the bloodstained record of th e ADF in his impressive overview of this case.
The evidence reviewed in the written pleadings and by Mr.Reichler establishes beyond any
reasonable doubt that the ADF was used as an instrument of national policy by the Congo acting in
conjunction with the Sudan. The ADF was responsib le for the appalling attacks within Uganda at
Mpondwe in 1996 and the series of attacks in 1998, including the murders at Kichwamba Technical
College.
Second
The West Nile Bank Front (WNBF). At the material time this was an insurgent group
organized by the Government of the Sudan. At the outset it consisted of the former members of the
armed forces of IdiAmin. Troops numbering 3, 500 were transported to the Congo by Sudan in
August1998 and then incorporated into the C ongolese armed forces (FAC) and used in military
operations against Ugandan Government forces in eastern Congo.
Third
The Uganda National Rescue Front II (UNRF II). At the material time this was an insurgent
group organized by the Government of the Sudan and deployed with the consent of the Congolese
Government on Congolese territory. - 10 -
Fourth
Forces Armées Ex-Far de Rwanda. These were the Rwandan armed forces under the
Government of President Juve nalHabyarimana, who carried out genocide against the Rwandan
Tutsi population together with moderate Hutus. Following their defeat by the Rwanda Patriotic
Front in 1994, ex-FAR members were organized in Congo to fight Congolese Tutsis and to
recapture the Government of Rwanda. In 1998, they were incorporated by President
Laurent Kabila into the Congolese Armed Forces to fight against Uganda and Rwanda.
Fifth
The Interahamwe. These forces were Rwandan Hutu militias that, together with the
ForcesArmées de Rwanda , carried out the genocide of Rwanda’s Tutsi population in 1994.
Afterwards, they fled to Congo and reorganized to fight Congolese Tutsis and the new Government
of Rwanda. In 1998, they were also incorporat ed into the Congolese Armed Forces by President
Laurent Kabila to fight against Uganda and Rwanda.
Sixth
The Lord’s Resistance Army (LRA). This is an anti-Uganda insurgent group organized by
Sudan and based in Sudan and the Congo. It became infamous for th e practice of committing
atrocities against Ugandan civilians. The activ ities of the LRA have been reported in recent
months in the international press and are currently under investigation by the ICC.
Seventh
The Former Uganda National Army (FUNA). This was an anti-Uganda insurgent group
composed of former soldiers of the dictator Id iAmin. It was organized by the Government of
Sudan in Congolese territory with the consent of the Congolese Government. Eventually it was
incorporated into the Congolese Armed Forces.
4. In addition and to complete the picture, it is necessary to refer to:
The National Army for the Liberation of Uganda (NALU) . This was an anti-Uganda
insurgent group organized in Congolese territory with the consent of the Congolese Government
and supported by the Government of Sudan. In the mid-1990s most of its structure and
membership were eventua lly incorporated into the Allied Democratic Forces (ADF), the Uganda - 11 -
insurgent group which I introduced earlier. Because this group was incorporated in the ADF, it
does not fall within the total of seven armed groups taking action against Uganda.
5. These seven insurgent armed groups supported by the Congo and the Sudan were all
present in the eastern Congo inAugustandSeptem ber1998. Their role as long-term players is
established by the provisions of the Lusaka Agr eement concluded on 10July1999. The “armed
groups” in the Congo, to be disarmed and demobiliz ed in accordance with the Lusaka Agreement,
included the ex-FAR, ADF, LRA, UNRF II, Interahamwe, FUNA, FDD (Forces for the Defence of
Democracy of Burundi), WNBF and UNITA (National Union for the Total Independence of
Angola). This list, in Annex A of the Lusaka Agreement, Chapter 9, includes the seven “armed
groups” I have itemized.
6. It is to be recalled that elements of these seven anti-Uganda armed groups were supported
by the Sudan and fought in co-operation with the Sudanese and Congolese armed forces. The
circumstances are described in more detail in the Counter-Memorial (paras.19-23, 47-50) and in
the Rejoinder (paras. 57-77, 655-674).
7. In the period 1994 to April1998 Uganda faced the problem, already alluded to, of
long-term border insecurity, involving Ugandan dissidents based in the Congo: I refer to the
Counter-Memorial, at paragraphs 334 to 339.
8. In this period a number of substantial arme d attacks were perpetrated by groups based in
the eastern Congo. The situation has been described in the Counter-Memorial, paragraphs 3 and 4.
“3. The evidence shows that Uganda h as been the victim of armed aggression
emanating from Congo continuously since 1994. For seven years, without
interruption, Uganda has been subjected to devastating cross-border attacks on a
regular basis from armed insurgents based in eastern Congo. Except for a brief period,
their activities have been co-ordinated by, and subject to the command and control of,
the Congolese Government. The purpose of these attacks has been, and remains, to
terrorize northern and western Uganda, to seize territory and destabilise and ultimately
overthrow the Ugandan Government by force of arms.
4. Various anti-Uganda insurgent groups ⎯ some professing loyalty to
IdiAmin, the notorious former Ugandan dictator ⎯ have operated from Congolese
territory during this period, with the full support of successive Congolese governments
headed, respectively, by Presidents Mobutu Ssese Seko, Laurent Kabila and
Joseph Kabila.” - 12 -
9. Mr. President, this picture provided in the Counter-Memorial of Uganda is confirmed by a
series of passages in the Reply of the DRC. The fact is that the Government of the Congo has
officially acknowledged the presence of all these groups on its territory.
10. In these paragraphs from the Reply the DRC admits the activities of the named groups on
its territory but fails to refer to the nature ofthe relationship between the rebel groups and the
Government of the Congo and the collaborati on involved. The passages in the Reply are
paragraphs 3.13 to 3.16 inclusive.
11. And so, Mr.President, distinguished Member s of the Court, it isevident that from at
least 1994 until June1998, the situation was as follows. On her northern boundary Uganda was
faced with a hostile neighbour, the Sudan. In addition, on her long border with the Congo, Uganda
faced the chronic problem of trans-boundary attacks by well-established armed bands.
12. Thus far I have focused upon the background to the events of August and
September 1998, and the background is relevant in order to understand the security problems faced
by Uganda.
13. By early September1998 the situation in the border regions consisted of the following
critical elements.
First , the realignments of political and military alliances by President Laurent Kabila in May
and June 1998 and the resulting adoption of policies hostile to Uganda.
Second, the formation of a military alliance between the Congo and the Sudan, in May 1998,
an alliance which was reaffirmed on 23August 1998, and again on 18September1998. In the
result Uganda was faced with a military threat on two fronts. (Counter-Memorial, paras.38-39,
49-50).
Third, the presence of substantial formations of anti-Uganda rebels in eastern Congo.
Fourth , Uganda’s knowledge of the command structure involving the Congolese armed
forces, the Sudanese armed forces, and the anti-Uganda armed groups. As Uganda has
demonstrated in her Counter-Memorial, by August1998 the anti-Uganda rebels were no longer
merely working in co-ordination with the Congolese armed forces, but were now incorporated into
the Congolese armed forces and thus formed part of their command structure. - 13 -
Fifth and last, the Sudanese armed forces were using a series of military airfields in northern
Congo for their operations and were sending troops to fight with the ADF.
14. It is not surprising, in these circumstanc es, that the States of the region gave explicit
recognition of the security concerns of Uganda rela ting to the endemic civil strife in the Congo, as
in the Heads of State Meeting on 7 and 8Sept ember1998, the Second Victoria Falls Summit, I
refer to the Counter-Memorial at paragraphs 299 and following.
15. I now reach the period when Uganda c ould no longer postpone her decision on what
action to take in face of an immediate threat to her territorial integrity. Here are the facts.
16. By 23 August 1998, Ugandan military inte lligence had learned that, while in Khartoum,
President LaurentKabila had reaffirmed his m ilitary alliance with the Sudan, and arranged for
more Sudanese military assistance to his Govern ment, including the contribution of a Sudanese
brigade to the taking up of positions hostile to Uganda in eastern Congo. The following day,
President Laurent Kabila met with Sudanese Vice-P resident Ali Othman Taha in Gbadolite, where
they agreed on joint military measures against Uganda, including a direct combat role for the
Sudanese army and air force, the further incorpor ation of Sudanese-trained anti-Uganda insurgents
into the Congolese armed forces, and an increase in weapons and logistical support to its insurgents
operating in eastern Congo. On 26August1998, Su danese Antonov aircraft bombed positions of
the Ugandan army at Bunia just across the borde r with Congo. On 2September1998, Sudanese
Colonel Ibrahim Ismail Habiballah delivered a pl aneload of weapons to the Congolese army in
Gbadolite for use by UNRF II units that had been incorporated into the Congolese armed forces. A
few days later, a Sudanese army brigade of approximately 2,500 troops, under the command of
Sudanese Lieutenant General Abdul Rahman Sir Khat im arrived in Gbadolite; it quickly deployed
to Businga, and prepared to engage the Uganda n forces in eastern Congo. On 14 September 1998,
President Kabila’s aides announced that the DRC and Sudan had agreed to jointly reinforce their
deployment along the Congo’s borders with Uganda and Rwanda. On 18September1998,
President Kabila again went to Khartoum, where he received pledges of additional Sudanese troops
and military equipment; he also met there with leaders of the ADF, WNBF, UNRF II and LRA. I
refer to the Counter-Memorial, Annex 90 (pp. 16-18). - 14 -
17. Mr.President, at this point the danger to Uganda was clear and present. Its forces in
eastern Congo, a small force limited to the border area, was extremely vulnerable. The combined
Congolese Government and allied forces ⎯ including FAC, ADF, WNBF, Interahamwe, and
Chadian and Sudanese brigades ⎯ positioned between Gbadolite and the Congo-Uganda border
outnumbered them by more than ten to one. Faced with this enormous and direct threat, Uganda
had two choices: either to withdraw its forces from Congo and suffer the consequences of
conceding the entire eastern region of the Congo to the Sudan and the anti-Uganda insurgents, or to
reinforce its troops in the Congo and deny the Suda n and the insurgents the strategic positions they
required to escalate their armed aggression agains t Uganda. To defend its borders against
numerically superior forces, Uganda had no alternative but to deploy more troops to eastern Congo
and to gain control of the strategic airfields in northern and eastern Congo before the Sudanese and
Chadian forces and other allied forces could occu py them. Since there are no highways in the
region, transport of military supplies and equipment is necessarily by airplane. Control of the
airfields was vital to prevent the resupply of th e Congolese army units, anti-Uganda insurgents and
Interahamwe operating in the border region, and to deny forward bases to Sudanese, Chadian and
other Congolese troops from which they could strike at Uganda directly. As Uganda’s Minister of
State for External Affairs reported to the Un ited Nations General Assembly: “Against the
perceived threat of increased destabilisation of Uganda especially by the Sudan using Congolese
territory as it had previously done, Uganda deploye d additional forces to counter this threat.”
(Counter-Memorial, Ann. 42, p. 15.)
18. Uganda’s decision to take the n ecessary action was made on 11September1998,
following the arrival and deployment in the Congo of hostile Sudanese troops. The Government of
Uganda’s decision was recorded in a confidentia l, internal document entitled: “Position of the
High Command on the Presence of the UPDF (Uganda People’s Defence Forces) in the DRC.”
The reasons for the Government’s decision to “m aintain forces of the UPDF in the DRC” were
stated as follows:
“1. To deny Sudan the opportunity to u se the territory of the DRC to destabilize
Uganda;
2. To enable UPDF to neutralize Uganda dissident groups which have been
receiving assistance from the Government of the DRC and the Sudan; - 15 -
3. To ensure that the political and ad ministrative 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 had been launching attacks on the people of Uganda from the DRC, from
continuing to do so;
5. To be in a position to safeguard the territorial integrity of Uganda against
irresponsible threats of invasion from certain forces.” (Counter-Memorial, Ann. 27.)
19. The action which followed the decision of 11 September 1998 consisted of a series of
linked operations with the aim of removing the key military airfields from the control of the Sudan.
The measures taken to remove the threats to Uganda ’s territorial integrity consisted of operations
against the following airfields.
⎯ Isiro (20 September 1998);
⎯ Buta (3 October 1998);
⎯ Bumba (17 November 1998);
⎯ Lisala (12 December 1998);
⎯ Gbadolite (3 July 1999).
20. These actions prevented the Congo and Sudan from using these airfields to attack
Uganda or to reinforce and resupply insurgent groups hostile to Uganda. The details are set forth in
the Counter-Memorial (paras. 53-54, and 61-64).
21. The pressure of events and the Ugandan responses are inevitably reflected in the public
statements of Ugandan leaders and diplomats. On 24 August 1998 President Museveni stated that
“if unilateral action intensifies, Uganda may be forced . . . to take its own independent action in the
protection of its own security interests” (Reply of the Democratic Republic of Congo, Ann. 108;
IRIN 486). Such contemporaneous statements are of particular importance.
22. In November1998 the Government of Uganda published a substantial statement
concerning the “Conflict in the Democratic Republic of Congo”. This appears in the
Counter-Memorial at Annex31. This addresses both the problem of genocide in neighbouring
areas of the Congo and the security concerns of Uganda. The document as a whole deserves
careful study. Of particular importance are the passages dealing with the aggressive activities of
the Sudan, which are as follows: - 16 -
“The situation was not helped when the current rebellion erupted in the DRC on
2 August 1998. Sudan, the main backer of Ugandan rebels, has continued to play an
active role. Uganda cannot afford to leave a vacuum lest Sudan takes advantage of the
situation and intensifies its support to Ug andan rebels on DRC territory. Indeed,
Sudan has since mobilized more Ugandan rebel factions and moved them to the DRC
with motives to launch massive attacks on Ug anda. This could only happen with the
tacit approval of the authorities in Kinshasa.
The military incursions that have been inflicted on Uganda by Sudan are well
known. These include the yearly aerial bomba rdments and cross border incursions on
Ugandan territory. Initially Sudan was using its own territory as the launching pad for
Ugandan rebels. When they ⎯ that is the Sudan ⎯ lost much of it in Southern Sudan
to the SPLM/SPLA, they increasingly started to use the DRC territory. There is
evidence that during the fight for Kindu between DRC forces and Congolese rebels,
the latter captured many Ugandan rebels of different factions backed by Sudan . . .”
The document continues:
“All along, Sudan has been designing plans to use the many and larger
airports/airfields in Eastern DRC to launch massive aerial attacks on Uganda.
Following the events of 2August1998, this advantage could not be allowed them.
For its security and because there was no semblance of Congolese authority in Eastern
Congo bordering us, Uganda had no alternative, but to take control of key
airports/airfields in Eastern DRC.
Sudan has been indirectly destabilizing Uganda from DRC since 1993; and
since eruption of war in the DRC on 2August1998, diplomatic and other contacts
between DRC and Sudan have increased. C onsequently Sudan’s involvement in the
DRC war intensified leading to the depl oyment of its troops (including Ugandan
rebels based in Sudan) to Kisangani and Kindu. Some of the Ugandan rebels captured
when these two towns fell to Congolese rebels, testified that they were recruited from
refugee camps in Sudan by President Kabila ’s son and Taban Amin, son of Uganda’s
former dictator Idi Amin who is also sponsoring Ugandan rebels.
Sudan directly sponsors and provides bases to several rebel groups opposed to
the Uganda government. These include West Nile Bank Front (WNBF), Uganda
National Rescue Front II (UNRF II), and Lord’s Resistance Army (LRA) whose
Camps in Sudan are at Jabelin, Nes itu, Lilia, Rojo Hills and Juba.”
(Counter-Memorial, Ann. 31, pp. 10-11.)
23. In his important speech in the General Assembly on 23March1999, Mr.Mbabazi, the
Defence Minister of Uganda, also provided a de tailed analysis of the crisis facing Uganda in
August 1998 (Counter-Memorial, Ann. 42).
24. A further statement on the subject was made by Minister Mbabazi on 8 September 1999
(Counter-Memorial, Ann. 48).
25. From this sequence of statements by the mo st senior Ugandan sources it is apparent that
the primary purpose of the Ugandan action beginning in September 1998 was self-defence and the - 17 -
removal of the causes of cumulative and persistent vi olations of the territorial integrity of Uganda
and the murder of its citizens.
Mr. President, it is now time to deal with the relevant legal questions.
26. Uganda relies upon the inherent right of self-defence in general international law which
is reserved in Article 51 of the United Nations Charter. The authoritative legal sources reviewed in
the Counter-Memorial justify the following submission:
“For the purposes of applying the provisi ons of Article51 of the Charter, the
concept of an ‘armed attack’ includes th e following elements, taken both separately
and cumulatively:
(a)The sending by a State of armed bands to the territory of another State in
conditions in which, had the operation been carried out by regular armed forces, it
would have been classified as an ‘armed attack’ (rather than as a mere frontier
incident).
(b) The sponsoring of armed bands by a State by the provision of logistical support in
the form of weapons, training or financial assistance; in these circumstances, and
in the presence of a shared purpose, the armed bands become agents, or ‘ de facto
organs’ of the sponsoring State.
(c) The operations of armed groups which form part of the command structure of the
armed forces of the State concerned, what ever the nomenclature used to describe
individual units.
(d) In other circumstances in which there is evidence of a conspiracy between the
State concerned and the armed bands fighting against the State taking action in
self-defence.”
27. The status of the activities of armed bands as a form of armed attack has been recognized
by various authorities.
theIn Nicaragua case (on the merits) the Court stated the position as follows:
“In the case of individual self-defence, the exercise of this right is subject to the
State concerned having been the victim of an armed attack. Reliance on collective
self-defence of course does not remove the n eed for this. There appears now to be
general agreement on the nature of the acts which can be treated as constituting armed
attacks. In particular, it may be considered to be agreed that an armed attack must be
understood as including not merely action by regular armed forces across an
international border, but also ‘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’ (inter alia) an actual armed attack conducted by
regular forces, ‘or its substantial involvement therein’. This description, contained in
Article 3, paragraph (g) of the Definition of Aggression annexed to General Assembly
resolution 3314, may be taken to reflect cu stomary international law. [And the Court
concludes]: The Court sees no reason to deny t hat, 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 - 18 -
classified as an armed attack rather than as a mere border incident had it been
carried out by regular armed forces. ” ( I.C.J. Reports 1986, p. 103, para. 195.)
(Emphasis added.)
28. Moreover, the legal literature provides firm support for the view that the use of armed
bands operating from the territory of a host State ag ainst another State as an instrument of national
policy constitutes an armed attack within the meaning of Article 51 of the Charter. The sources are
set forth in chronological order in the Counter-Memorial (para. 349), and I do not propose to repeat
them here.
29. In this context it is submitted that the gi ving of logistical support to armed bands with
knowledge of their objectives constitutes an armed attack.
The definition of aggression adopted by th e General Assembly in 1974 by consensus
provides as follows in Article 3:
“Any of the following acts, regardless of a declaration of war, shall, subject to
and in accordance with the provisions of Ar ticle2, qualify as an act of aggression.
[As the Court pointed out]:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) The sending by or on behalf of a state of armed bands, groups, irregulars or
mercenaries, which carry out acts of ar med force against another state of such
gravity as to amount to the acts liste d above, or its substantial involvement
therein.” (Emphasis added.)
30. The final paragraph of this definition ca lls for some commentary. Such activity is
characterized not as “indirect aggression” but as an “act of aggression”. Moreover, the phrase “or
its substantial involvement therein” strongly indi cates that the formulation extends to the provision
of logistical support. The drafting history is examined in the dissenting opinion of Judge Schwebel
in the Nicaragua case (I.C.J. Reports 1986, pp. 341-347, paras. 162-171).
31. The other relevant provision in the General Assembly’s definition of aggression is
paragraph (f), which includes:
“(f)The action of a state in allowing its territory, which it has placed at the disposal of
another state, to be used by that other state for perpetrating an act of aggression
against a third state.”
In the light of the substantial evidence relating to the role of the Sudan in carrying out actions
jointly with the Congo, using Congolese territory, the relevance of this element is self-evident. - 19 -
32. It is necessary to refer next to the D eclaration of Principles of International Law
Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of
the United Nations.
First of all, the Declaration sets forth various principles of which the first is as follows:
“The principle that States shall refrain in their international relations from 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.”
The commentary attached to this text includ es a number of more specific principles, two of
which are of particular relevance.
First:
“Every State has the duty to refra in from organizing or encouraging the
organization of irregular forces or armed bands, including mercenaries, for incursion
into the territory of another State.”
And second:
“Every State has the duty to refrain from organizing, instigating, assisting or
participating in acts of civil strife or te rrorist acts in another State or acquiescing in
organized activities within its territory dir ected towards the commission of such acts,
when the acts referred to in the present paragraph involve a threat or use of force.”
33. The two paragraphs of commentary provide si gnificant clarifications. In particular, the
second paragraph makes clear that the principle pr ohibiting the use of force applies to forms of
assistance in acts of civil strife in another State. The second paragraph also confirms that
acquiescence in “organized activities . . . directed towards the commission of such acts” is unlawful
“when the acts referred to in the present paragraph involve a threat or use of force”.
34. The majority in the Nicaragua case did not accept that the provision of weapons or
logistical support to rebels constituted an “armed at tack”. However, this position was criticized in
the substantial dissenting opinions of Judg es Schwebel and Sir Robert Jennings (I.C.J. Reports
1986, pp. 331-347 and p.543). The reasoning of the Court has also been the subject of careful
criticism by JudgeHiggins, as she now is, in he r General Course at the Hague Academy, which
was published as Problems and Process in 1994 (pp. 250-251).
35. In any event, the circumstances of the pr esent case are substantially at variance with the
facts on which the Court relied in the Nicaragua case. In the present case the organized activities
aimed at Uganda were much more powerful in effe ct than the provision of weapons or logistical - 20 -
support. The armed bands formed part of a command structure which involved the central
Government of the Congo and co-ordination with a third State, the Sudan.
The application of the law to the facts
36. Mr. President, it is now necessary to apply th e law to the facts. For this purpose I shall
use four separate elements of the concept of armed attack.
37. The first element is as follows: the sending by a State of armed bands to the territory of
another State in conditions in which, had the opera tion been carried out by regular armed forces, it
would have been classified as an armed attack, rather than as a mere frontier incident.
38. Commencing in MayandJune1998, the Government of the DRC co-ordinated the
military operations of the ADF against Uganda, through senior officers of the Congolese armed
forces, the FAC, who planned and supported cro ss-border attacks by the ADF in and against
Uganda (Counter-Memorial, paras. 33-41). Follo wing the Congo’s alliance with the Sudan and its
more open collaboration with the anti-Uganda insurgents, FAC officers co-ordinated and supported
ADF attacks on: Kichwamba Technical School, 8June1998, when more than 100 Ugandan
civilians were killed; Kanyamura, 10 June, when five civilians were killed; Banyangule, 26 June,
when 11 were killed or wounded; Kiburara, 5 Ju ly, when 19 people were abducted; Kasese, 1
August, when three people were killed; and ma ny more, as described in the Counter-Memorial at
paragraphs 40, 62 and 95 to 97. The planning, size, frequency and destructiveness of these assaults
against Ugandan territories and nationals demonstrate that they were not mere “frontier incidents”,
but full-fledged “armed attacks” within the meaning of Article 51.
39. The second element of the concept of an ar med attack can now be applied. It is as
follows: the sponsoring of armed bands by a State by the provision of logistical support in the form
of weapons, training or financial assistance; in these circumstances, and in the presence of a shared
purpose, the armed bands become agents, or “de facto organs”, of the sponsoring State.
The ADF, WNBF and other anti-Uganda insu rgent groups regularly received logistical
support, weapons, training and financial assistance directly from the Government of the Congo, and
from the Government of the Congo acting in collaboration with the Government of the Sudan. The
“shared purpose” of the Government of the C ongo and the anti-Uganda rebels, as well as the - 21 -
Government of the Sudan, was to destabilize Uganda’s Government by means of armed attacks and
aerial bombardment from Congolese land and air bases. Among other ways, “the shared purpose”
is established by the planning and co-ordination by the Congo’s armed forces of ADF attacks
against Uganda and the incorporation into th e Congolese armed forces and deployment against
Ugandan Government forces of thousands of WNBF combatants (Counter-Memorial, paras. 34-36,
47-50, 54).
40. I now move to the third element in the c oncept of armed attack: the operations of armed
groups which form part of the command structur e of the armed forces of the State concerned,
whatever the nomenclature used to describe individual units.
Approximately 3,500 troops of the West Nile Bank Front were airlifted by the Government
of the Sudan to points in the Congo, at the direction of the Government of the Congo, and
incorporated into the official Congolese armed forces, where they fought alongside Congolese
army units and were subject to the command and control of Congolese army officers
(Counter-Memorial, paras.47-50, 52 and 62-63). ADF participation in the command structure of
the Congolese armed forces is demonstrated by the planning and co-ordination by senior Congolese
officers of the ADF’s attacks against Uganda.
41. The fourth element of an armed attack is as follows: in other circumstances in which
there is evidence of a conspiracy between the State concerned and the armed bands fighting against
the State taking action in self-defence.
Further evidence of what was in fact a tripartite conspiracy between the Government of the
Congo and the anti-Uganda insurgents is provided by the frequent consultations and co-ordination
in September 1998 between President Laurent Kab ila and the leaders of the ADF, Yusuf Kabanda,
and the WNBF, Taban Amin, about military strategy and operations against Uganda
(Counter-Memorial, paras. 35-36).
42. In her Reply, the Congo contends that the response of Uganda to the situation was not
proportionate. The proportionality of Uganda’s respon se is attested by the following factors all of
which were operative at the material time:
First, the conclusion of an alliance between Pres identKabila and other forces, hostile to
Uganda; - 22 -
Second, the long history of terrorism and aggr ession by armed bands established on the
territory of the Congo and the appalling effects of that aggression against the population of Uganda,
as in the atrocity at Kichwamba on 8 June 1998;
Third, the results of the formation of the military alliance between President Laurent Kabila
and the Sudan and the extent of the Sudanese involvement (Counter-Memorial, paras.38-41 and
78-88). The Sudanese forces were established in a series of locations in northern Congo and their
presence and the existence of a Sudanese-related command structure, were the subject of a licence
from the Congo; and
Fourth, t he appearance of Sudanese armed forces in the Congo was a new and serious threat
to Uganda’s territorial integrity, especially in the light of the Sudan’s long history of aggression
against Uganda, her stepped-up role in training and delivering materiel to the FAC and anti-Uganda
insurgents, and her efforts to rally other States, including Chad, against Uganda .
43. Mr. President, the four factors indicated, and their cumulative effects, constitute a test of
the outer limit of proportionality, that is to say, an absence of excessive reaction. But there are
several other sources of evidence to the effect that the action taken by Uganda was not out of scale
to the threats to her security.
44. In the first place the reaction of the Security Council was cautious and the Council
avoided accusations of aggression. Thus at the meeting held on 31August 1998 the President of
the Security Council made the following statements on behalf of the Council:
“The Security Council expresses its deep concern about the current conflict in
the Democratic Republic of the Congo, whic h poses a serious threat to regional peace
and security. The Security Council expresse s alarm at the plight of the civilian
population throughout the country.
The Security Council reaffirms the obligation to respect the territorial integrity
and national sovereignty of the Democratic Republic of the Congo and other States in
the region and the need for all States to refrain from any interference in each other’s
internal affairs. In this context, the Council calls for a peaceful solution to the conflict
in the Democratic Republic of the Congo, including an immediate ceasefire, the
withdrawal of all foreign forces, and the initiation of a peaceful process of political
dialogue with a view to national reconciliation.” (Emphasis added.)
45. A similar formulation appears in the statement by the President on 11December1998
(S/PRST/1998/36). And, Mr. President, in both these statements the President of the Council calls
for the withdrawal of all foreign forces without qualification. - 23 -
46. The first resolution of the Council on the situation in the Congo was resolution1234
adopted on 9 April 1999. The consideranda of the resolution include the following:
“ The Security Council:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Expressing its firm commitment to preserving the national sovereignty,
territorial integrity and political independe nce of the Democratic Republic of the
Congo and all other States in the region,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Recalling the inherent right of individual or collective self-defence in
accordance with Article 51 of the Charter of the United Nations,
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Welcoming the appointment by the Secretary-General of his Special Envoy for
the peace process for the Democratic Republic of the Congo,
Stressing that the present conflict in th e Democratic Republic of the Congo
constitutes a threat to peace, security and stability in the region.” (Emphasis added.)
And the operative paragraphs included:
“The Security Council
1. Reaffirms the obligation of all States to respect the territorial integrity,
political independence and national soverei gnty of the Democratic Republic of the
Congo and other States in the region, including the obligation to refrain 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, and
further reaffirms the need for all States to refrain from any interference in each other’s
internal affairs, in accordance with the Charter of the United Nations.”
47. The Statement of the President of the Council on 24June1999 reflected the previous
statements and the content of resolution 1234 (S/PRST/1999/17) to which I have already referred.
48. The statements of the President of the Council also reaffirmed the support of the Council
for the regional mediation process facilitated by the President of Zambia on behalf of the SADC in
co-operation with the OAU and with support from the United Nations. The regional peace process
prospered and on 10July1999 there was signed the Lusaka Ceasefire Agreement. The
consideranda in the Agreement included the following item:
“[The Parties to this Agreement]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 -
Cognisant of the fact that addressing the security concerns of the DRC and
neighbouring countries is central and would contribute to the peace process.”
49. In resolution 1258 adopted on 6 August 1999, the Security Council:
“1. Welcomes the signing of the Ceasefire Agreement... in Lusaka on
10July1999 which represents a viable basi s for a resolution of the conflict in the
Democratic Republic of the Congo.”
50. Mr.President, the documents of this peri od clearly reflect the sense within the Security
Council, within the region, and within the OAU, th at the security concerns which were central to
the peace process and the situation overall were those of neighbouring countries in addition to
those of the Congo.
51. These considerations relate to the general context of the issue of proportionality and are
by no means the most pertinent criterion for the purposes of a legal appreciation of the facts.
52. Other concrete indications of the propor tionality of the Ugandan response to aggression
form part of the more immediate context. In the first place at all material times the Ugandan troops
on Congolese territory were significantly outnumbered. As Mr. Reichler has already pointed out,
inAugust1998 the combined Congolese Govern ment and allied forces positioned between the
Uganda border and Gbadolite outnumbered the Uga ndan forces based in the Congo by more than
ten to one.
53. And, furthermore, a particularly cogent consideration is the decision embodied in the
Lusaka Agreement of 10July1999 to allow Uganda to keep all of her troops deployed without
reduction. The text of the Agreement is at tab 5 in the judges’ folder.
54. Mr.President, the substance of proportiona lity consists of the elements of purpose,
necessity and causation. If an armed attack is m ounted by an insurgent group into or against the
territory of Uganda, the question whether this constitutes an armed attack justifying a response
against the territory of the Congo, and the bases of operation of the insurgents, will depend on the
following criteria:
First, were the operations carried out with the purpose, shared with the Government of the
Congo, of destabilizing Uganda?
Second, did the attacks consist of operations mounted, in military terms, from within the
Congo?
Third, were the attacks mounted by armed groups acting on behalf of the Congo? - 25 -
55. The evidence presented on behalf of Uga nda indicates an affirmative answer in each
case. The nature of the situation faced by Uganda ov er a period of years is to be analysed with the
aid of certain necessary analytical tools and within the appropriate context.
56. The superficial but unhelpful choice is between a doctrine of anticipatory or preventive
action and the requirement of direct attacks across a boundary. This dichotomy is not appropriate
in relation to several scenarios met with in practice. In elaborating the concept of armed attack and
putting it to work, the analytical tools called for by legal logic are causation and the principles of
State responsibility, which are applicable in combination.
57. In present circumstances, whilst the focus is in the first place upon the general definition
of armed attack or aggression, it is ultimately also upon the identification of the source, that is, the
responsible government, in relation to specific attacks or patterns of specific attacks.
Consequently, it is logical and indeed essential to apply the principles of State responsibility to the
precise subject-matter.
58. In my submission, the key is the principle of agency and it is not su rprising to find that
Article 8 of the Draft Articles adopted on first reading by the International Law Commission
provided in part as follows:
“ Article 8. Attribution to the State of the conduct of persons acting in fact on
behalf of the State
The conduct of a person or group of persons shall also be considered as an act
of the State under international law if
(a) it is established that such person or gro up of persons was in fact acting on behalf
of that State;” (YILC, 1974, II (Part One), 283).
59. The counterpart Article in the Articles on State Responsibility adopted on the second
reading in 2001 is as follows:
“Article 8
Conduct directed or controlled by a State
The conduct of a person or group of pers ons shall be considered an act of a
State under international law if the person or group of persons is in fact acting on the
instructions of, or under the direction or control of, that State in carrying out the
conduct.” (Report of the International Law Commission, Fifty-third session, 2001,
p. 103.) - 26 -
60. On the basis of this sound legal logic State responsibility is generated for armed attacks
perpetrated by armed groups which are in fact agents or de facto agents of the DRC.
61. The principles of State responsibility are thus applied in conjunction with the concept of
armed attack.
The proportionality, and the military or fact ual necessity, of action in response to armed
attacks is enhanced if there is a pattern or sequence of linked attacks. This is not offered as an
independent proposition of law but as a proposition of fact based upon standard conceptions of
security and common sense.
62. In completing this analysis I shall return to the role of purpose and causation.
The primary attribute of an armed attack is its seriousness: and that is a matter of
appreciation by the Court.
The element of seriousness is in the present cont ext to be related both to the degree of force
employed and to other factors. What is defensive, and what is proportionate or reasonable, depends
on several factors apart from the degree of force. One such factor is the pu rpose: which in this
case was to destabilize the Governme nt of Uganda and to destroy or weaken her public order
system.
63. A further factor is the agency, that is , the organizational connection between the armed
group carrying out the operation, and the central Government of the Congo. Indeed, there was also
a tripartite relationship involving the armed groups, the Governments of the Congo and the Sudan.
64. It is these causal connections which justify a defensive reaction to neutralize the bases
from which the armed groups operated as de facto organs of the Congolese Governments and of the
Sudan.
65. And, Mr. President, a significant element in the causation, the engine of necessity, is the
sudden increase in the tempo and gravity of the arme d attacks in June to August1998. At this
point it is appropriate to recall the sequence of armed attacks which took place in the period from
June until August 1998. The relevant map is attached as tab 1 of the judges’ folder.
66. The sequence of armed attacks was as follows.
First, on 8 June 1998 the attack at Kichwamba: as Uganda has pointed out, the results of the
alliance between the Congo and the Sudan incl uded the attack by the ADF on Kichwamba - 27 -
Technical School on 8June 1998. A force of more than 100insurgents, armed by the Congo and
the Sudan, carried out this merciless attack on innocent technical school students. According to the
ADF participants themselves, the attackers divi ded themselves into three units: one group of 24
staged an ambush on the way to the school to prevent Ugandan soldiers from rescuing the students;
a second unit of 36 attacked the school, armed with high-powered weapons and “8 jerricans of
petrol”; and the third unit attacked the Uganda army detachment at nearby Kanyamura. The
students were either burned alive in their dormitories, shot and killed while trying to escape the
flames, or abducted and forcibly taken back to the Congo (Count er-Memorial of Uganda, Anns. 20
and 82). More than 50 students were burned alive and at least as many were shot and killed trying
to escape.
Second, on 10 June 1998 there was a further attack in th e same area, resulting in the deaths
of five Ugandans.
Third, on 26 June 1998 an ADF attack took place at Banyangule village in Bundibugyo
district, leaving 11 victims dead or wounded.
Fourth, on 5 July 1998 at Kiburara in Kasese district, 19 seminarians were abducted from
St. John’s Seminary.
Fifth, on 1 August 1998 the ADF attacked Kasese to wn, burning shops and houses and
killing three people.
Sixth, on 6 August 1998 the ADF attacked the town of Kyarumba near Kasese, killing
33 people.
67. This sequence of attacks involved the purpose of destabilizing Uganda’s Government
and weakening its public order system, a purpose shared with the central Government of the
Congo. The attacks were carried out by groups supported by the central Government of the Congo
and acting as its agents. The se quence constituted a pattern of armed attacks for which the Congo
was responsible and which were mounted from bases within its territory. In the result military
action against those bases within the Congo became an operational necessity within the framework
of a continuum of attacks from Congolese territory, and the escalation of the military action against
Uganda in the period June to August 1998.
Mr. President, if it were convenient, that would be a good place for me to stop. - 28 -
The PRESIDENT: You may continue.
BMRO. WNLIE:
68. This series of destabilizing attacks preceded and partly coincided with the events I have
already described, namely the formation of a m ilitary alliance between the Congo and the Sudan,
the threat to Uganda on two fronts, the evidence that, in August 1998, the anti-Uganda rebels were
incorporated into the Congolese armed forces, and the evidence that the Sudanese armed forces
were using a series of military airfields in northern Congo for their operations. The armed attacks
accelerated as the Sudan brought in more troops and supplies. These threats continued to develop
in intensity in early September, 1998.
69. In the result Uganda’s decision to ta ke the necessary military action was made on
11September1998 in face of the deployment in the Congo of further hostile Sudanese armed
forces.
Criticisms by the Democratic Republic of the Congo
70. That, Mr. President, is the case on behalf of Uganda, but it remains for me to examine the
response of the Congo to the written pleadings of Uganda on the question of self-defence. I shall
be as brief as possible, not least because the difficulties presented by this case concern at the end of
the day the application of the pertinent lega l principles and not the reiteration of familiar
propositions.
71. In a general sense the Parties have joined issue on the state of the law. Both the
Counter-Memorial of Uganda and the Reply of the Congo contain substantial discussions. But
some substantial differences remain. The C ongolese position remains much more dogmatic and
simplistic than that of Uganda. Uganda has pointed out that the legal position involves the
construction and application of the phrase “armed attack”. As I ha ve sought to demonstrate today,
there are situations in which it is unrealistic anpractically impossible to insist on a distinction
between a direct response to an armed attack and anticipatory or preventive action.
72. My distinguished opponent, ProfessorCorten, presents a two-dimensional view of the
matter. In the first place he fails to report the Ugandan position correctly. Uganda’s legal position - 29 -
is not based upon the concepts of self-protec tion or vital interests or preventive action or
pre-emptive action (CR 2005/3, paras. 6, 32 and 35).
73. Uganda’s position is not contradicted, as my opponent suggests, by the legal literature
and he refers to the Reply of Congo at page212 for citations. The fact is, Mr.President, that the
legal literature has nearly always failed to examine the specific issue of the persistent activities of
armed bands and the concept of an armed attack. Thus, the alleged unanimity of writers is not very
impressive in qualitative terms.
74. Moreover, it is not always appropriate to apply the democratic principle to the counting
of writers. The treatment of the authorities by the Congo is superficial. Thus,
ProfessorYoramDinstein is not given any prominence, although he is the author not of a few
paragraphs in a textbook but of a well-known m onograph now in a third edition on the subject of
War, Aggression and Self-defence . He is also a long-standing member of the Institut de droit
international. Dinstein is one of the few aut horities to provide a sophisticated discussion of the
problems, and his views appear in the Counter-Memorial at pages 199 to 201.
75. In this same general context the Congo is affronted by the fact that Uganda should
indicate the existence of an alternative view to th at espoused by the majority of the Court in the
Nicaragua case (see the Reply, para. 3.127, and Professor Corten, CR 2005/3, para. 21). But each
case must be decided on its own facts and the facts of the present case are by no means similar to
those of the Nicaragua case. Moreover, for what it matters, the Court does not adhere to the rigid
doctrine of precedent. This is familiar and h as been pointed out by the leading authorities,
including HerschLauterpacht, The Development of International Law by the International Court,
published in 1958, at pages 8 to15.
76. I come now to one of the most serious flaws in Professor Corten’s argument. On the one
hand, he asserts that there were no “armed a ttacks” by the Congo against Uganda (CR2005/3,
paras.10-13). These assertions are to be unders tood as statements that the attacks on Uganda
launched by armed bands based in the Congo were not under the control of the Central Government
of the Congo. At the same time, the Congo admits the presence on its territory of long-established
groups of militia (see the Rejoinder of Uganda, paras. 65-67). - 30 -
77. The missing link is provided by the principles of State responsibility and the duty to
prevent the use of national territory by armed bands launching armed actions against neighbouring
States. My opponent fails to recognize that, in accordance with the principles of State
responsibility, the Congo is responsible for the ar med attacks of the various rebel groups. This
responsibility arises in the conditions set forth in the Definition of Aggression of 1974 in which
paragraph (g) calls for the direct involvement of a State. But, Mr.President, it also exists in
accordance with the principles of ge neral international law in cond itions where there is simply a
failure to control the activities of armed bands. In her Reply (para. 3.131) the Congo seeks to argue
that the responsibility of the territorial sovereign is limited by the provisions of Article8 of the
Articles on State Responsibility adopted by the International Law Commission on a second reading
in 2001. This Article has been quoted already, and it refers to conduct directed or controlled by a
State. According to the Congo this provision applies a stringent test to the attribution to a State of
the acts of private persons.
78. This is a debating point and is misleading in its result. Article8 of the Articles is not
concerned with matters of self-defence, which is dealt with in Article 21 of the draft, by a reference
(in general terms) to the provisions of the Charte r. Article56 of the Articles makes it clear that
other principles of general international law remain in place. And, in this context, it may be
recalled that on Wednesday afternoon of last week, both ProfessorSands and ProfessorSalmon
referred repeatedly to the duty of prevention, or of vigilance.
Moreover the last Article of the codification by the International Law Commission provides
that: “These Articles are without prejudice to the Charter of the United Nations.”
79. Where does this reasoning lead? It inevitably leads back to Article51 of the Charter,
which reserves the right of self-defence in terms of customary law “if an armed attack occurs”.
80. As in the case of the other aspects of the concept of an armed attack, 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. - 31 -
81. I shall now move on to an examination of the argument presented by ProfessorKlein.
His first proposition is that Uganda has not respected the condition of necessity (CR2005/3,
para.4). Necessity is therefore seen by hi m as a separate and a dditional requirement of
self-defence.
82. Mr.President, there is probably no harm in adding such a requirement but it is surely
tautologous and unnecessary. Self-defence itself is a special form of necessity, after all. The
concept of necessity simply implies that the conduct remain within the appropriate purpose. This is
the burden of the letter from Webster to the British Government in the Caroline correspondence,
which states that “the act justified by the necessity of self-defence, must be limited by that
necessity”.
83. It is reasonably clear that the limits are more effectively set by the principle of
proportionality, and this requirement I have alread y addressed this morning. In any event in the
context of customary law the Court in the Nicaragua case tended to combine the criteria of
necessity and proportionality ⎯ I refer to I.C.J Reports 1986 , paragraph194, and this passage is
quoted in paragraphs 43 and 74 of the Judgment in the Oil Platforms case.
84. ProfessorKlein then gives a partisan and truncated account of the problem of
proportionality. His analysis is confined to th e action taken and ignores the causes of the action
and the factual context.
85. I have already presented an analysis of the pressing and cumulative factors which created
Uganda’s necessity of self-defence. As the Court will appreciate the applicant State has failed to
provide an adequate picture of the relations between the Congo and Uganda in the critical period
since 1996.
86. Professor Klein, like the Congolese Reply, refers to the allegedly large area involved in
the Uganda operations. But Mr. Reichler has shown that this assertion is not rooted in the facts, by
pointing to the Harare Disengagement Plan map (see CR2005/6, paras.101-102). According to
the evidence, Uganda’s forces were largely confined to the immediate border area, and to securing
strategic airfields in eastern and northern Congo.
87. ProfessorKlein also refers to the depth of penetration of the Congo by Ugandan forces
(see CR 2005/6, para. 19). This is a perfect example of taking one element in the situation, and in - 32 -
the whole sequence of events, and seeking to give it a pivotal role. But, as Mr.Reichler has
pointed out, it is artificial to apply an all-purpose mileage formula for measuring the
proportionality of a defensive operation (see CR 2005/6, para. 83). According to the evidence, the
penetration was dictated by the need to stop Uganda’s enemies from continuing to use certain
airfields to supply and reinforce the rebel groups that were conducting armed attacks against
Uganda.
88. Several of our distinguished opponents have referred to the length of time entailed in the
Ugandan operations. This complaint plainly ignores a whole range of circumstances, including the
persistence of border attacks, the overall strength of the armed groups receiving assistance from the
Congolese and Sudanese Governments, the weakness of Congolese institutions, and the operation
of the Lusaka system of public order in the Congo.
89. ProfessorKlein also invokes the principle that peaceful methods of settlement must be
exhausted prior to a resort to the use of force (see CR 2005/3, paras. 9-16). Professor Klein quotes
only one source for the alleged principle: a report of ProfessorAgo to the International Law
Commission. But, with all respect to Judge Ago’s memory, the principle does not constitute a
limitation upon the right of self-defence if that ri ght is justified on its normal bases. It is not
surprising to find that the commentaries of the Commission to the Articles eventually adopted on a
second reading in 2001 make no reference to such a limiting principle.
90. In this context, ProfessorKlein seeks to draw advantage from the fact that in the key
period between May and September1998 Uganda made no formal protests to the Congo (see
CR2005/3, para.13). The facts are that Presi dentMuseveni made several explicit public
complaints about the threats to Uganda’s territori al integrity emanating from the Congo and this is
recognized in the Congo’s Reply (paras.3.56-3.61). PresidentMuseveni made statements on
24 August and 16 September 1998.
Mr. President, I have nearly finished.
The PRESIDENT: We will have a break in ten minutes. Will that be enough for you?
Mr. BROWNLIE: I am literally going to finish in two minutes. - 33 -
The PRESIDENT: All right, you may continue.
BMRO. WNLIE:
91. But there is much more to be recalled than particular statements by President Museveni,
significant though they were. Early inAugust19 98, Uganda had launched a major diplomatic
effort to bring the conflict in the Congo to an e nd. This effort resulted in a succession of summit
meetings, including Victoria FallsI on 7 and 8August1998 and Victoria FallsII on
7 and 8 September 1998. The participants released a Joint Communiqué indicating that the security
concerns of the neighbouring States, as well as those of the Congo, needed to be addressed as part
of an effective settlement. In the words of the Joint Communiqué:
“We agreed on the need to address the security concerns of the Democratic
Republic of the Congo and those of the nei ghbouring countries. In this regard, we
declare our preparedness to assist in wh atever ways possible, to achieve that
objective.” (Counter-Memorial of Uganda, Ann. 26, p. 2.)
ProfessorKlein referred to Uganda’s assistan ce to the MLC Congolese rebel organization.
As Mr. Reichler pointed out on Friday, the MLC was a party to the Lusaka Agreement. Tomorrow,
in his discussion of Lusaka, he will point out the special status given to the MLC by the parties to
the Lusaka Agreement, including the DRC Government.
92. Mr. President, before closing it may be he lpful to the Court if I present a summary of the
Ugandan position on the legal issues concerning the activities of armed bands.
First, in the case in which the territorial s overeign tolerates the activities of armed bands and
the armed attacks which they launch against a nei ghbouring State, the failure to control renders the
State harbouring such armed bands susceptible to action in accordance with Article51 by the
victim State. This consequence is the result of the application of well-recognized principles of
State responsibility and the existence of direction and control by the territorial sovereign is not
necessary.
It will be apparent to the Court that the applicant State does not deny the existence of the
facts to which that formulation applies.
Secondly, there is responsibility for the armed attacks and a liability to face defensive action,
in those cases in which there is direct involvement in accordance with the General Assembly’s - 34 -
definition of aggression. Such direct involvement is denied by the Congo in spite of the substantial
evidence to the contrary.
Mr.President, there is one final point. If the concept of necessity of self-defence is to be
applied on the basis of effectiveness and common sen se, it is surely the view of the victim State
and its nationals which must prevail. And that view must be based upon an objective standard
related to the effects of the armed attacks. The consequence is that, for the victim State, the results
remain the same and the necessity remains the same, whether the State from which the armed
attacks emanate is directly involved or is only responsibl e for harbouring or tolerating the armed
bands responsible.
And in any event, in this case the evidence presented by Ug anda, which was described by
Mr. Reichler on Friday, and which will be further discussed by the two speakers who follow me to
the podium, demonstrates that the DRC is respons ible not only for harbouring and tolerating the
armed bands, but for incorporating them into its own armed forces and otherwise supporting and
co-ordinating their activities against Uganda both dir ectly and, especially, in collaboration with the
Sudan.
That concludes my presentation. I would thank the Court for its patience.
The PRESIDENT: Thank you, Professor Brownlie. The Court now goes into recess for ten
minutes, after which the hearings will be continued.
The Court adjourned from 11.30 to 11.40 a.m.
The PRESIDENT: Please be seated. I now give the floor to the counsel and advocate,
His Excellency the Honourable Amama Mbabazi.
Mr. MBABAZI: Thank you, Mr. President.
Introduction
1. Mr.President, distinguished Members of the Court, it is a great honour to appear before
you today. I am grateful for the privilege this distinguished Court has given me, and given Uganda, - 35 -
to address the claims of armed aggression that have been made against Uganda by her neighbour,
the Democratic Republic of the Congo.
2. I feel it is most appropriate for me to begin my presentation by introducing myself to the
Court. I am, first of all, a lawyer. I was edu cated at Makerere University, Kampala and received
my law degree in 1975. Today, I am privileged to serve as the Minister of Defence of the Republic
of Uganda. From 1986 to the present, I have held the following positions in the Government of
Uganda:
⎯ between 1986 and 1992, I was Director General of the External Security Organization in the
President’s Office;
⎯ from 1992 to 1997, I was Minister of State for Defence;
⎯ between 1997 and 1998, I was Minister of State in the President’s Office in charge of Political
Affairs;
⎯ from 1998 to 2001, I was Minister of State for Foreign Affairs, in charge of Regional
Co-operation; and
⎯ since 2001, I have been Minister of Defence. I am also currently the Chairman of the Ugandan
Army’s Historical Command.
3. In each of the positions I have held si nce 1986, I have had significant responsibility for
managing relations between Uganda and Zaire, as it was then called, or the Congo, as it is called
today; I communicated directly and frequently with the highest officials of the Congo and Zaire
about our bilateral relations; I represented Uga nda in bilateral and regional conferences that
involved relations between Uga nda and the Congo; I was privy to all of the Ugandan
Government’s intelligence concerning political and military matters in the Congo; I participated in
all strategic decisions taken by the Government of Uganda in relation to the Congo; I represented
Uganda in meetings with the United Nations Se cretary-General, the Security Council and the
General Assembly concerning the conflict in the Congo; I co-chaired the negotiating sessions at
Lusaka, Zambia in early July 1999 that produ ced the international agreement known as the Lusaka
Agreement, by which all of the parties to the conf lict in the Congo agreed to end the war, remove
its causes, establish a new government of national unity in the Congo and ultimately to withdraw
all foreign forces; and I have continued to par ticipate in all subsequent peace conferences, and - 36 -
bilateral discussions between Uganda and the Con go, with a view to maintaining the peace and
promoting friendly relations between our two States.
4. Mr. President, drawing on my direct involvement in all of these matters from 1986 to the
present moment, I am in a unique position to speak for the Government of Uganda about five
specific points, which I propose to discuss today. First , the fact that Uganda has suffered armed
aggression emanating from Congolese territory since at least 1994. Second, the fact that Uganda
had no role in the Congolese rebellion against President Laurent Kabila that began on
2August1998, or in any other offensive milita ry operations in the Congo during the month of
August 1998. Third, the fact that Uganda decided to send new military forces into the Congo, and
to deploy them beyond the immediate border areas, on 11September1998, and the reasons why
she did this. Fourth , the fact that the parties to the Lusaka Agreement, signed in July1999,
expressly recognized that the armed attacks agains t Uganda from rebel forces based in the Congo
were sufficiently serious as to justify the introduction and continued presence of Ugandan armed
forces into Congolese territory until the groups were disarmed and disbanded; and the fact that in
the Lusaka Agreement the Government of the D RC expressly consented to the maintenance of
Ugandan military forces in the Congo until such tim e as the conditions fixed in the Agreement for
their departure were fulfilled. And fifth, the fact that Uganda and the Congo signed a bilateral
peace agreement at Luanda, Angola in September 2002, in which the DRC again consented to the
presence of Ugandan military forces in regions of the Congo where the armed groups continued to
operate, and provided an agreed timetable for the withdrawal of all other Ugandan forces, which, in
accordance with the Luanda Agreement, were fu lly and finally withdrawn from Congo, as of
2 June 2003.
I. The armed aggression against Uganda during the Mobutu era
5. Mr. President, I will now turn to my first poi nt; that is, the fact that Uganda has suffered
armed aggression since at least 1994 emanating from the territory of what was once Zaire and is
now the Democratic Republic of the Congo. Alth ough both Mr.Brownlie and Mr.Reichler have
addressed this issue, I would like to revisit it brie fly today so that the Court may better appreciate - 37 -
the context in which Uganda has been forced to make her national security decisions concerning
the defence of her borders.
6. As Mr.Reichler described last Friday, Uganda had three distinct, though ultimately
linked, forces launching attacks against her from Congolese territory during the Mobutu era. The
first of these forces consisted of the various bands of anti-Uganda rebels using the eastern Congo as
their home base from which to conduct cross-border attacks against Uganda: these included the
Former Uganda National Army, or FUNA; the Uganda National Rescue Front II, or UNRF II; the
National Army for the Liberation of Uganda, or NALU; the Allied Democratic Forces, ADF; the
West Nile Bank Front, WNBF; and the Lord’s Resistance Army, LRA.
7. These groups consisted mainly of former sold iers and other supporters loyal to one or the
other of Uganda’s two former dictators: Idi Amin and Milton Obote, each of whom presided over
murderous régimes that killed or imprisoned hundreds of thousa nds of innocent Ugandans, and
terrorized the country between 1971 and 1986. Du ring that period, the name Uganda had the
misfortune of being synonymous with brutal, corrupt, dictatorial rule. These groups were the
remnants of those terrible régimes. The goal of each of these groups after 1986 was to overthrow
the Government led by President Yoweri Museveni and restore the old order; or, in the case of the
Allied Democratic Forces, to establish a religious fundamentalist State along the model of the
Sudan. The groups all had bases in eastern Congo, adjacent to western Uganda.
8. Beginning in 1994, President Mobutu of Zair e deliberately gave them sanctuary, supplied
them, and increasingly took part in co-ordinating th eir activities against Uganda. In this manner,
Zaire itself became the second aggressor against Uganda. I hope the Court will indulge me for a
few minutes while I explain the phenomenon of Zaire’s support for the anti-Uganda groups,
because it introduces a theme that acquires even mo re significance later, in 1998 and 1999, when
Congolese aggression against Uganda was renewed and escalated, ultimately leading to Uganda’s
decision to act in self-defence.
9. The primary catalyst for President Mobutu’ s alliance with the anti-Uganda armed groups
operating from his country was the fall of the Gove rnment of Rwanda led by President Juvenal
Habyarimana in 1994. President Mobutu was an ally and a strong supporter of President
Habyarimana, whose Government was dominated by members of the Hutu ethnic group, and which - 38 -
was engaged in a civil war against the Rwandan Patriotic Front (the RPF), which was composed
mainly of members of the Tutsi ethnic group. President Mobutu was a main supplier of arms to
President Habyarimana and his Government. President Habyarimana died in a plane crash on his
return from successful peace negotiations with the RPF, which promised to end the civil war in
Rwanda. That successful peace conference had b een arranged and facilitated by Uganda’s
President, Yoweri Museveni, who witnessed the signing of the peace agreement.
10. Following President Habyarimana’s tragic death, Hutu extremists in his army and in
army-supported militias known as “Interahamwe” ⎯ all of whom opposed a peace agreement ⎯
launched a virulent anti-Tutsi campaign in Rwanda. They committed genocide ⎯ the slaughtering
of more than 800,000 Tutsis and moderate Hutus, over a 90-day period in 1994. The Security
Council of the United Nations did nothing to stop th is massive killing, despite the urgent pleas of
Uganda and several African States, among others. In fact, instead of sending peacekeepers to stop
the killing, the United Nations withdrew those who were already there, removing the last protective
barrier and leaving to their horrible fate the Tutsis of Rwanda, and those Hutus who heroically
opposed the mass murder. I am afraid that we Africans learned a terrible, but necessary, lesson
from this: that we could not count on the Secur ity Council or the international community at large
to care enough about Africa to help us keep the peace. If even the premeditated mass slaughter of
more than 800,000 African civilians was not e nough to bring United Nations peacekeepers to our
part of the world, there was little or no reason to believe that anything less destructive of human
life than that would bring them. We learned th at we must rely on ourselves to assure our own
security and safety.
11. The genocide destroyed any possibility that the peace agreement between the warring
Rwandan factions brokered by President Museveni would hold up. The result was that the
predominantly Tutsi RPF initiated a military offensive, took the capital Kigali, and established a
new Government. The remnants of the Former Rwandan Armed Forces, the army of the defeated
Rwandan Government, and the Interahamwe militia, fled across the border to Zaire (along with
more than a million Hutu refugees who feared re prisal from the new Government). President
Mobutu welcomed them and gave th em sanctuary. He also helped the former Rwandan soldiers
and militiamen reorganize themselves; he rearmed them, and he gave them logistical support in - 39 -
attacks against the forces of the new Government of Rwanda. They also attacked the Tutsi
communities of eastern Congo, along the border with Rwanda, killing thousands of Congolese
citizens.
12. As Mr.Reichler stated last Friday, President Mobutu supported and encouraged attacks
against Uganda as well as Rwanda because he saw Uganda as the ally of the new Government of
Rwanda, and its chief source of support. He hoped that, by tying Uganda down with the defence of
her own borders with Zaire, she would be less capable of assisting Rwanda, whose Government he
wanted to bring down through his support of the former Rwandan soldiers and militias. So,
President Mobutu simultaneously supported these Rwandan groups against the new Government of
Rwanda, and the Ugandan rebel groups that had long been based in eastern Congo against the
Government of Uganda.
13. In addition to the Government of Presi dent Mobutu and the anti-Uganda rebel groups
based in his country, the third force opposed to the Government of Uganda was the Sudan,
Uganda’s neighbour to the north. There had long been enmity between Uganda and the Sudan,
largely as a result of the Sudan’s close relationship with and support of Idi Amin while he was in
power, and the remnants of Idi Amin’s army whic h were given sanctuary in southern Sudan after
Idi Amin was driven from power. The Sudan helped to organize, arm, train and co-ordinate the
activities of such groups as the Former Uga nda National Army (FUNA), the Uganda National
Rescue Front II (UNRF II), West Nile Bank Front (WNBF), and the Lord’s Resistance
Army(LRA). The LRA became notorious for kidnapping thousands of Ugandan children,
brutalizing them, and forcing them to become child soldiers or sex slaves. As Mr.Brownlie said
earlier this morning, based on the formal referral of this matter by the Government of Uganda, the
LRA leaders are the subject of an investigation by the International Criminal Court.
14. Sudan did not operate only within her own borders. Instead, after 1994, she actively
collaborated with President Mobutu and helped to organize, arm, train and co-ordinate the activities
of the anti-Uganda groups based in eastern Congo, and in particular, those that were loyal to former
dictator Idi Amin. Between 1994 and 1997, the S udan and Zaire became partners in crime against
Uganda. Under the terms of their alliance, th e Sudan stepped up its activities against Uganda,
including the arming and training of anti-Uganda re bels, and Zaire agreed to make her territory, - 40 -
including her airfields, available for the purpo ses of supplying the insurgents and attacking
Uganda. The consequence of this alliance was a sharp increase in the armed attacks against
Uganda.
15. The armed aggression against Uganda, and the responsibility of President Mobutu and
his Government, between 1994 and 1997 cannot be disputed. As Mr.Reichler has previously
described, Uganda introduced the statements of numerous former or captured insurgents directly
testifying to the relevant facts in Uganda’s C ounter-Memorial. I should emphasize here that these
statements were not taken or manufactured for the purpose of this case. These are
contemporaneous official records of interrogati on of prisoners and defectors by Ugandan military
and intelligence personnel; and they were considered sufficiently reliable by the Government of
Uganda at the time they were taken so as to form the basis for critical decisions on political and
military strategy and tactics that Uganda ultimately made. In Uganda’s considered view, they fully
demonstrated the complicity of PresidentMobutu’s Government in the armed attacks against
Uganda throughout this period. This was c onfirmed to me by Congolese officials in the
Government of President Laurent Kabila after President Mobutu was gone from the scene.
16. The war against PresidentMobutu in 1996 and 1997 was carried out ⎯ and won ⎯
largely by the army of Rwanda. There was, of course, involvement by Congolese rebel forces
themselves, under the leadership of Laurent Kabila , who became the new President of the country
in May1997. But the bulk of the fighting was carried out by the Rwandan army, which invaded
the Congo and ultimately took Kinshasa and installed Mr.Kabila as President. This is a fact that
everyone in the region recognizes, including the Congolese. That is why, even after he was
installed in power, and for more than a year thereafter, President Kabila’s army consisted mainly of
the Rwandan soldiers who brought him to power. Mr. Reichler described this fact to the Court on
Friday, and I understand that the DRC has admitted it before this Court.
II. Uganda did not support the rebellion against President Kabila or engage in
offensive military operations in the DRC during August 1998
17. Mr. President I shall now proceed to my second point ⎯ the fact that Uganda played no
role in the August 1998 rebellion against President Laurent Kabila, and that she did not engage in
any offensive military activities in the Congo during August 1998. - 41 -
18. Uganda watched with growing concern as the stability of President Kabila’s Government
slowly eroded from the time he assumed power in May1997 until May 1998. The last thing
Uganda wanted was instability in her large neighbo ur to the west, because that could only mean
greater instability for the remote eastern region of the Congo, the region that bordered Uganda.
The factor that appeared to cause the most tr ouble for President Kabila with the Congolese people
was his near total dependence on Rwanda, and on the Congolese Tutsis whom the Rwandan forces
brought to Kinshasa and installed in key positions in the new army and security establishment.
Many Congolese were offended by what they saw as the subordination of Congolese national
interests to those of Rwanda. Nationalist pride was stirred, and hostility against Rwanda spread. In
its uglier form, this manifested itself as we ll in hostility to the CongoleseTutsis, who were
regarded by other Congolese as agents of Rwanda. Accusations that President Kabila had sold out
his country to Rwanda and its Congolese Tutsi allies proliferated, and led to mass anti-government
demonstrations.
19. President Kabila’s response to nationalist attacks on his Government was to terminate his
military dependency on Rwanda. He did this by Presidential Decree on 27July1998. In that
decree, he ordered all Rwandan armed forces to leave the DRC immediately. The Decree expelling
Rwandan forces was greeted enthusiastically by the Congolese population, many of whom
celebrated by rampaging against Congolese Tutsis, whom they considered Rwandan sympathizers.
Many Tutsis were slaughtered by government-incited mobs in the closing days of July1998. To
replace the departing Rwandan soldiers, President Kabila expedited efforts to form a new army
composed of the only other experienced military and paramilitary forces in the Congo, the former
soldiers of PresidentMobutu, the former sold iers of the armed forces of Rwanda and the
Interahamwe militiamen who had served the former (Hutu) Government of Rwanda, and the
anti-Uganda rebel groups operating in eastern Congo.
20. On 2August1998, directly following th e expulsion of the Rwandan soldiers and the
slaughter of the Congolese Tutsis, several battalions of the Congolese army stationed in eastern
Congo declared themselves in rebellion against th e Government of PresidentKabila. Rwanda
immediately sent thousands of troops across the borde r into Congo. Within two weeks, they had - 42 -
swept across much of eastern Congo, and seriously threatened to continue on to Kinshasa and
remove President Kabila from power.
21. After the war against President Laurent Ka bila broke out on 2 August 1998, Uganda was
asked by Rwanda to send in the UPDF in support. Uganda considered this request at the highest
levels. Uganda understood Rwanda’s reasons for intervening militarily in the Congo.
PresidentKabila’s alliance with the forces that had committed genocide in Rwanda, and which
were preparing to invade Rwanda to retake power, was clearly unacceptable to the régime in
Kigali, as was the government-instigated assault on Congolese Tutsis. Uganda, too, criticized these
actions by PresidentKabila and his Government, but told PresidentKagame of Rwanda that she
would not intervene militarily in the Congo. Pr esidentMuseveni made the firm decision that
Uganda would remain completely neutral with re gard to the fighting in the Congo. Instead of
supporting either side, PresidentMuseveni launc hed a vigorous campaign for a regional peace
conference to stop the fighting, and to address ev eryone’s security concerns, including Rwanda’s
about PresidentKabila’s alliance with the form er Rwandan soldiers a nd militias, and Uganda’s
concerns about renewed Congolese support for the anti-Uganda groups.
22. PresidentMuseveni’s efforts led to a Summit among the Heads of State of Uganda,
Zimbabwe, Tanzania, Zambia, Na mibia, Rwanda and the DRC convened on 7 and 8 August 1998
(five days after the outbreak of fighting in the DRC) at Victoria Falls in Zimbabwe. As Minister of
State for Regional Co-operation, I was a senior me mber of President Museveni’s delegation. The
outbreak of fighting in Congo was the topic of discussion at the Summit. I plainly recall that
President Kabila’s Minister of Justice at the time, Mwenze Kongolo, angrily accused Rwanda (and
only Rwanda) of fomenting the rebellion against PresidentKabila and invading Congolese
territory. He did not make any such charges ag ainst Uganda because, as he very well knew,
Uganda was not involved in any of these actions.
The PRESIDENT: May I interrupt you for a moment. The Court considers that your
statement is being made, not in your own name, but in the name of the Republic of Uganda, and
your statement will be given the treatment as is nor mally given to the statement made by any other
counsel and advocate. Please continue. - 43 -
Mr. MBABAZI: Thank you, Mr. President.
23. Only much later, did the DRC begin to accuse Uganda of “invading it” in early
August 1998. As I have stated to the Court, this accusation is completely untrue. To the contrary,
Uganda made a deliberate decision at the time not to send troops into Congo, but to pursue a
regional peace settlement instead. It is true that Uganda already had some troops in eastern Congo
when the rebellion against PresidentKabila and his Government broke out at the beginning of
August. There were three battalions of UPDF (Uganda People’s Defence Force), in the border
areas. These troops were in the Congo with the consent of the Congolese authorities, including
President Kabila himself. As my colleagues have already described to the Court, President Kabila
invited Uganda to station her forces in eastern Co ngo to pursue and subdue the rebel bands that
attacked Uganda from Congolese bases. This invitation was reconfirmed in the written Protocol of
27 April 1998, signed by Uganda and the DRC. This Protocol is included in the judges’ folder at
tab 11. The consent given by the DRC to the pr esence of Ugandan forces in Congolese territory in
the border areas was never revoked or withdrawn. The DRC’s advocates in these proceedings are
mistaken when they argue that PresidentKabila’s decree of 27July1998 formally expelled
Ugandan soldiers from the Congo. That decree wa s directed expressly at the Rwandan soldiers in
the DRC, and only at the Rwandan soldiers. It made no mention of Ugandan soldiers. It was
certainly the understanding of both Uganda and the DRC at the time that decree was issued that it
had no bearing on the Ugandan forces in the border areas of the Congo with the express consent of
the DRC Government. I should like to add, as well, that Uganda never received any
communication from the DRC Government, formal or informal, direct or indirect, withdrawing that
consent.
24. Uganda did not materially add to her troops inside the Congo, or deploy them beyond the
immediate border areas during the month of August 1998. After Ugandan forces in the DRC came
under heavy attack by the ADF and some Congolese ar my elements at Beni on 7 August 1998, the
Ugandan forces pursued the attackers north to Bunia, and took control of Bunia Airport on
13 August. On that same date, the UPDF sent to Bunia some reinforcements. The following day,
the UPDF deployed a small number of troops to Wa tsa, also in the border area, to the north of - 44 -
Bunia, to monitor the situation in that area. All of the Ugandan forces were confined to the border
area.
25. Since she began these proceedings, the DRC has attempted to place Ugandan soldiers at
the scene of various battles in early August, especial ly Kitona, in western Congo. As Chairman of
the UPDF Historical Command and Minister of State for Regional Co-operation at the time, I am
aware of all of the decisions that were made regarding the security threat from the Congo, and
Uganda’s responses to it, including the positioning and deployment of Ugandan forces inside the
DRC. I affirm to the Court, in the name of the Government of Uganda, that no forces under
Ugandan command participated in any activities in Kitona in August 1998 or at any other time. No
Ugandan prisoners, therefore, were taken at those locations. I have personally investigated whether
a Mr. Salim Byaruhanga, or anyone with a name similar to that, was ever in, or associated with, the
Ugandan armed forces; and I can report to this Cour t that the answer is in the negative. If such a
person was ever in the custody of the DRC, he can only have been a civilian detainee. He was
never a Ugandan soldier. The Russian T-55 tank that may have been found near Kitona may be
similar to tanks operated by the UPDF. However, it is not ours. Nor is there any reason to
conclude that it is. Almost all of the States that had military forces in the Congo ⎯ including
Rwanda, Angola, Zimbabwe, the Sudan and the DRC itself ⎯ had and operated Russian-built
T-55tanks. Since that particular T-55 tank did not belong to Uganda, Mr. President, I can only
assume that it belonged to one of those States.
III. Uganda’s decision in September 1998 to send troops into the Congo
26. I shall now address my third point, that is , the fact that Uganda introduced substantial
military forces into the Congo in the middle ofSeptember1998, in self-defence against the
persistent armed attacks from the Congo and the grave and imminent threat to her security posed by
these attacks and the combined efforts of the anti-Uganda groups, the Government of
President Kabila and the Government of the Sudan who were then all united against Uganda.
27. Mr.Reichler has described for the C ourt the evidence showing that, by August and
September1998, Uganda was under attack from armed bands concentrated in eastern Congo,
which had been incorporated into the army commanded by President Kabila and were supplied and - 45 -
directed by the Sudan. The Sudan itself had deployed several thousand of its own troops, along
with thousands more Chadian troops, in easter n Congo whence larger-scale attacks and aerial
bombardments could easily be launched against Ug anda. Mr.Brownlie has explained how these
events constituted illegal armed aggression against Uganda, and how they justified the introduction
of Ugandan armed forces into Congo as a lawful exercise of Uganda’s inherent right to
self-defence. Tomorrow morning, the Court will hear from Major General Edward Katumba
Wamala, who is a military and intelligence expert and who served as commander of several of
Uganda’s military units, including the Ugandan military force in the DRC from 2000 to 2001.
General Katumba Wamala will further describe the evidence about the attacks of the armed bands,
and the support they received from the Government of the DRC and the Government of the Sudan,
in the period leading up to early September 1998.
28. In broad outline, here is what we saw from our positions as senior members of the
Ugandan Government, responsible for the security of our nation: in early August, as I mentioned,
the Congolese rebellion broke out. The collaboration between PresidentKabila and both the
anti-Uganda groups and the Sudan accelerated. The anti-Uganda groups, with the assistance of the
Sudan, were merged into the Congolese armed forces . Taban Amin, son of Idi Amin and a leader
of the West Nile Bank Front, one of the anti-Uganda groups nurtured by Sudan, was later given the
rank of Major General in the Congolese army and appoi nted to President Kabila’s General Staff in
Kinshasa. The Sudan airlifted her own troops into several locations in eastern and northern Congo,
and began taking control of all ai rfields in those parts of that country, at the invitation of
President Kabila. And at the Sudan’s behest, Chad entered the fighting at her side. Amidst all this,
Congolese soldiers forced their way into Uganda’s embassy in Kinshasa, held the ambassador and
other diplomats at gunpoint and threatened them. Then, at a meeting on 24 August, the Sudan and
the DRC agreed on still further joint military measures against Uganda, including additional
assistance to the groups in eastern Congo. The Ugandan troops in the Congo, pursuant to the
earlier invitation of the DRC Government, came unde r increasing threat and suffered several direct
land and aerial assaults, including bombardment by Sudanese aircraft.
29. At a policy level, Uganda’s choice was th is: either (1) withdraw her troops from the
border areas in eastern Congo and suffer the consequences to her ability to protect her borders - 46 -
against the forces that were already attacking her, as well as those who were on their way to attack
her; or (2) introduce sufficient military forces into the Congo to deny Uganda’s attackers the
strategic positions they needed to launch their armed attacks against her, and to eliminate the armed
groups and drive the hostile Sudanese and Chadian forces out of the Congo.
30. This was not an easy decision for the Government of Uganda to make. Sending her
combat forces onto foreign soil was not something Uganda favoured. The Government was deeply
troubled by the high cost of doing so, primarily in terms of loss of life but also in terms of the
economic costs and the terrible financial strains these would place on the budget of a poor country.
And, in war, the outcome is never assured. But Uganda had tried to the best of her ability to
initiate a regional peace settlement, and we generate d little interest. President Kabila himself had
failed even to attend the summit meetings we arra nged in VictoriaFalls and Windhoek, Namibia.
Zimbabwe, Angola and to a lesser extent Namibia had sent their troops into the DRC to support
PresidentKabila against Rwanda. The Sudan and Chad had sent troops to fight against Uganda.
Uganda had no choice but to recognize the reality of the situation. There was a war going on, and
Uganda was a target of some of the warring pa rties. Taking military action in self-defence
presented itself as Uganda’s only viable alternative.
31. On 11 September 1998, the High Command met with President Museveni. Mr. Brownlie
has read to the Court from the contemporaneous, internal document memorializing the High
Command’s decision. The document was not prepared for public disclosure or public relations; it
was labelled “Secret”, and it was intended to remain so. Only after this case was filed, and at the
urging of her counsel did Uganda decide to declassify it so that it could be submitted to the Court.
The document sets forth the High Command’s reasons ⎯ its only reasons ⎯ for sending her forces
into the Congo. I would like to recall for the Court the first two of those reasons:
“1 . To deny Sudan the opportunity to use the territory of the DRC to destabilize
Uganda.
2 .To enable UPDF to neutralize Uganda dissident groups which have been
receiving assistance from the Government of the DRC and the Sudan.”
32. Uganda thus dispatched her combat troops to the Congo in exercise of her right of
self-defence. Because Uganda’s mission was a self-defensive one, her strategy and operations
were at all times dictated by the imperatives of self-defence. The UPDF went no further and sent - 47 -
no more men into the Congo than were absolutely necessary to achieve Uganda’s mission: to deny
her attackers the strategic positions they needed to continue launching cross-border attacks against
her; to eliminate the armed groups operating ag ainst Uganda; and to drive Sudanese and Chadian
forces out of the Congo. By July1999, after Ug anda’s forces had taken the airfield at Gbadolite
and succeeded in expelling Sudanese and Chadia n forces from the Congo, PresidentMuseveni
made it very clear to all parties that the war w as essentially over for Uganda, and that the UPDF
would now begin to disengage from the front lines.
33. At the beginning of the conflict, Uga nda and other States called upon the Security
Council to take action to help stop the fighting and to assure the security of the borders of the DRC
and neighbouring States, including Uganda. The ci rcumstances did not permit Uganda to wait for
Security Council action before the introduction of Ugandan troops into the Congo. As of
11September1998, the gravity of the armed att acks against Uganda, the military collaboration
between the DRC and the Sudan on behalf of the rebels who were conducting those attacks, and the
rapid approach toward Uganda of hostile Sudanese and Chadian army contingents made immediate
action on our part in self-defence of Uganda impe rative. We knew we c ould not count on timely
intervention by the Security Council to head off the crisis. The Council’s inaction in the face of the
genocide in Rwanda was still fresh in our minds. As it was, it took the Security Council until
April 1999 to adopt its first resolution on the conflict. By that time, efforts among the States of the
region, including Uganda and the DRC, were alre ady far advanced towards the achievement of a
comprehensive peace settlement.
IV. The Lusaka Agreement
34. That brings me to the fourth point I would like to present to the Court, that is, the fact
that the Lusaka Agreement constituted consent for Uganda’s troops to stay in the DRC pending the
disarming and disbanding of the armed groups whos e cross-border attacks had caused Uganda to
send troops to the DRC in the first place.
35. I personally led Uganda ’s delegation to Lusaka and was her chief negotiator in
connection with the treaty. I also served as co-chair of the negotiating sessions. I am thus not only
intimately familiar with the terms of the Agreemen t, I am familiar as well with the spirit that - 48 -
motivated them, and the understandings of the par ties. As such, I believe I am well qualified to
present to the Court the position of the Governme nt of Uganda with respect to the Lusaka
Agreement.
36. The negotiations culminated on 10July1999 when the Heads of State of Uganda, the
DRC, Rwanda, Zimbabwe, Angola and Nami bia signed the Lusaka Agreement. The
three Congolese rebel organizations ⎯ the MLC, RCD-K and RCD-G ⎯ signed the Agreement at
the end of July.
37. From Uganda’s perspective, there are two main points to be drawn from the Lusaka
Agreement. The first is the multilateral recognition that Uganda had legitimate security concerns
in the DRC. The second is the fact that the Agreement authorized Uganda to keep her troops in the
DRC pending fulfilment of the parties’ prior obliga tions thereunder, including steps designed to
eliminate the threat to Uganda.
38. Last Friday, Mr.Reichler began the process of analysing the text to demonstrate the
ways in which these points are manifested in the Agreement. He will continue doing so tomorrow,
when he addresses the Court on the subject of the consent given by the DRC for the stationing of
Ugandan troops in Congolese territory between 10 July 1999 and 2 June 2003. It is not my purpose
to repeat or preview either of Mr. Reichler’s presentations here.
39. Instead, I will address myself today to th e intentions of the parties to the Lusaka
Agreement, as expressed in the text and in their subsequent conduct pursuant to the Agreement.
The text reflects the fact that, throughout the ne gotiations that led to the Agreement, Uganda was
insistent that any settlement must take proper account of her security concerns. From the beginning
of the conflict, Uganda had been the leading voice for a negotiated settlement. She was not,
however, prepared to sacrifice her security for an artificial peace. The other delegates not only
understood this, but repeatedly expressed their unde rstanding of the harm Uganda had suffered at
the hands of the armed groups based in eastern Congo, especially while they were supported by the
Governments of the DRC and the Sudan. The multilateral recognition of the threat the armed
groups posed to Uganda found clear expression in the text of the Agreement itself, especially in the
explicit identification, by name, of different ar med groups of anti-Uganda rebels that had been
attacking Uganda from Congolese territory, and in the commitment to eliminate all of the groups - 49 -
through their disarmament, demobilization, resettlement and reintegration. Further, because of the
seriousness of the threat posed by the enumerated armed groups, the parties agreed, and the Lusaka
Agreement expressly provided, that the fore ign forces then present in Congolese territory,
including Uganda’s forces, should remain in place until the disarmament and demobilization of the
armed groups was completed.
40. Mr. President, the DRC’s advocates have argued that the Lusaka Agreement set an
unconditional, six-month deadline for the withdrawal of foreign troops from the Congo. Again,
Mr.Reichler will explain the textual reasons why this argument cannot stand, when he addresses
this Court tomorrow. From the perspective of Uganda’s lead representative in Lusaka, and co-chair
of the negotiations, I can assure the Court that none of the parties to the Agreement, including the
DRC, had any intention of creating such a fixed and artificial deadline. It was a premise of the
negotiations on which all parties, including the DRC, agreed that the time frames set up in the
Agreement were contingent on the fulfilment of prior deadlines set forth in the Agreement. No one
disagreed. It was universally understood.
41. I respectfully refer the Court to tab 5 of the individual judges’ folder. The
implementation calendar to the Agreement cont ained in AnnexB provides that the twelfth
“ceasefire event”, after disengagement of forces and other matters, shall be the opening of a
“national dialogue” designed to yield a “new politi cal dispensation” in the DRC. The thirteenth
“ceasefire event” is the closure of the national di alogue. No.16, after the establishment of new
institutions and the deployment of United Nations peacekeepers, is the “disarmament of armed
groups”, including the anti-Uganda insurgents. Then, No.17 is th e “orderly withdrawal of all
foreign forces”.
42. This is not and was never meant to be a si mple list of unco-ordinated events. Each prior
step was designed to pave the way for the next; each subsequent step was designed to build on the
one before it. Saying No. 17, i.e. the withdrawal of foreign forces, could occur before No. 16, that
is the disarmament of armed groups, if the disarmament happened to be delayed for any reason,
makes no more sense than saying No.13, that is the closure of the national dialogue, could come
before No. 12, that is the opening of the national dialogue, if the opening of the dialogue happened
to be delayed. - 50 -
43. I can put the same point as follows: the Congolese national dialogue envisioned in the
Lusaka Agreement was intended to create the conditions under which new institutions could be
created, including a new broadly inclusive national government and a new army, which in turn
would create the environment in which peacekeepe rs could be deployed, which, in turn, was
necessary to create the conditions in which the di sarmament of armed groups could take place.
Only after all this was accomplished was the withdrawal of foreign troops envisioned.
44. This was never disputed by anybody, includi ng the DRC. The fact that the DRC herself
understood that the withdrawal of foreign troops, including Uganda’s, was not an artificial deadline
untethered to the other ceasefire events is demonstrated by her subsequent actions. Acting pursuant
to the Lusaka Agreement, on 8April2000 ⎯ that is to say nine months after the Lusaka
Agreement had been signed and three months after the initial 180-day target for the withdrawal of
foreign forces ⎯ a formal plan for the disengagement of forces in the Congo was signed in
Kampala by all the parties to the Lusaka Agreement, in cluding the DRC. Known in the region as
the Kampala Disengagement Plan, this document is located at tab6 of the judges’ folders. It
reconfirmed the consent that had been given in the Lusaka Agreement to the presence of Ugandan
and other foreign forces in the Congo pending the disarmament, demobilization, resettlement and
reintegration of the armed groups that had been utilizing Congolese territory to destabilize Uganda
and other neighbouring States. Never once during the negotiations of the Kampala Disengagement
Plan did the DRC voice a suggestion that foreign troops should have left earlier, or that they should
leave immediately, or that they should leave at any time before the problem of armed groups was
resolved ⎯ through their demobilization, disarmament, repatriation and reintegration.
45. Mr.Reichler referred on Friday to the f act that the Secretary-General himself took the
position that foreign forces should not be withdrawn until the armed groups were properly
neutralized. In April 2001, President Museveni a nnounced that Uganda would be withdrawing her
troops from the DRC immediately; that is, even before the armed groups were fully disarmed, as
stipulated in the Lusaka Agreement and subseq uent disengagement plans. Because of the
international implications of our actions, I travelled to New York to meet with the
Secretary-General and deliver PresidentMuseven i’s message. We met in his office at the
UnitedNations Headquarters in New York and I explained to him that PresidentMuseveni had - 51 -
decided to withdraw Ugandan troops because it ha d never been intended by the parties to the
Lusaka Agreement that Ugandan forces would be responsible for maintaining public order in
eastern Congo. That was supposed to have been the responsibility of United Nations peacekeeping
forces, and was a role that Uganda neither wanted nor felt capable of performing. The
Secretary-General responded by stating that a un ilateral Ugandan withdrawal would destabilize the
peace process and quite possibly leave a vacuum th at could be exploited by the enemies of the
Congo. He urged us in the strongest terms to keep our troops in place in the Congo and remain
engaged in the peace process in accordance with the Lusaka Agreement.
46. I told the Secretary-General that Uganda would consider his request, but, in light of the
burden on Uganda, we would be grateful if he would put it in writing. He did so in his 4 May 2001
letter to President Museveni attached at tab 13 of your individual judges’ folder. Mr. Reichler will
review the actual text of the letter with the Court tomorrow. For the moment, I will just add that
the Secretary-General is an exceptional man and an extraordinarily skilled diplomat. His letter is
necessarily couched in carefully chosen diplomatic language. Even so, Mr.President and
distinguished Members of this Court, its meani ng is clear. Taking account of the context makes it
clearer still: the fulfilment of the Lusaka Agreem ent required Uganda to keep its troops in the
DRC pending completion of other aspects of the Agreement, including the disarming and
disbanding of the designated armed groups.
V. The Luanda Agreement between Uganda and the DRC
47. I have now come to the fifth and final point in my presentation; that is, the fact that the
bilateral agreement signed by Uganda and the D RC at Luanda, Angola, inSeptember2002 again
recognized the threat to Uganda’s security posed by armed groups of anti-Uganda rebels operating
from bases in eastern Congo, and extended the D RC’s consent for the presence of Ugandan troops
in Congolese territory to protect against cross-bor der armed attacks by these rebels. The Luanda
Agreement included a timetable for the gradual w ithdrawal of Ugandan forces from the DRC, and
the DRC incrementally increased its capacity to police the border region with its own security
forces. Although the timetable had to be extended by mutual agreement, it eventually provided that - 52 -
Ugandan forces would be fully and finally withdr awn from the Congo by the end of May 2003. In
fact, the last Ugandan troops departed from the Congo on 2 June 2003. None have gone back.
48. The Luanda Agreement, signed by Uganda and the DRC on 6 September 2002, is at tab 8
of your individual judges’ folder. Tomorrow, Mr. Reichler will offer the Court a textual analysis of
the Agreement and its legal implications in this case, especially as regards the issue of consent by
the DRC to the stationing of Ugandan forces in Congolese territory.
49. By September2002, relations between Uganda and the Congo had progressed to the
point where both Parties felt it would be appropriate to take further steps towards a final peace.
Uganda still remained very concerned about her secur ity situation. Despite Uganda’s best efforts,
bands of rebels remained in eastern Congo. Civilia n authority in the region remained inadequate.
Neither the Congolese central Government nor the local authorities responsible for the area had
succeeded in dealing with that threat.
50. Having participated in the negotiations of the agreement reached at Lusaka, I believe I
can ably reflect the Government of Uganda’s views on it. As reflected in the text of the
Agreement, the Congolese delegation at Luanda, including President Joseph Kabila, recognized the
gravity of the continuing threat to Uganda posed by the rebels based in eastern Congo. They
agreed ⎯ once again ⎯ that it would be appropriate for Ug andan troops to remain in the DRC
until another mechanism for guaranteeing Uganda’s security was put in place. In this connection, I
respectfully refer the Court to Article 1, paragraph 4, of the Luanda Agreement, which provides:
“The Parties agree that the Uganda n troops shall remain on the slopes of
Mt.Ruwenzori until the Parties put in place security mechanisms guaranteeing
Uganda’s security, including training and coordinated patrol of the common border.”
51. Thus, as of September2002, the DRC expressly acknowledged that Uganda’s security
concerns still were sufficiently weighty, and th e absence of effective Congolese authority in the
region sufficiently problematic, as to necessitate the maintenance of Ugandan troops on Congolese
territory. The DRC’s consent to the presence of Ugandan troops in eastern Congo, given three
years earlier in the Lusaka Agreement, was in this manner reconfirmed and extended for an
additional period.
52. For her part, Uganda agreed at Luanda to withdraw from the DRC all Ugandan troops,
except those expressly authorized by the DRC to remain “on the slopes of Mt.Ruwenzori”. - 53 -
Uganda fulfilled her obligations under the Agreement and withdrew her troops from the DRC. In
fact, Uganda went beyond the Agreement and w ithdrew all her troops from the Congo, including
those which were authorized to remain on the slopes of Mount Ruwenzori. As I have stated,
Uganda’s last troops were withdrawn from the DRC on 2June2003. On that date, Uganda’s
military presence in the Congo terminated.
Conclusion
53. Mr. President and Members of the Court, I have now reached the end of my presentation.
I trust I have shown that Uganda introduced her military forces into the Congo for the sole and
legitimate purpose of self-defence, in response to the armed aggression, and grave and imminent
threats to her security from armed groups acting in concert with the Governments of the DRC and
the Sudan, including Sudanese armed forces th emselves operating from Congolese territory with
the sole purpose of attacking and destabilizing Ug anda. In Uganda’s vi ew, Uganda’s actions
constituted a lawful exercise of our inherent right of self-defence under Article51 of the
United Nations Charter and customary law. I trust the Court will reach the same conclusion.
54. Thank you, Mr. President and Members of the Court, for your kind and patient attention
to my remarks, and for allowing me the privilege of appearing before you today.
PTRheSIDENT: Thank you, Your Excellency.
Now I would like to reiterate that the Court considers the Honourable Mr. Mbabazi to have
taken the floor as counsel and advocate, a member of the Uganda delegation. That is the capacity
in which you were listed and not as an expert or witness called by Uganda to give evidence.
Besides, the procedures set out in Article 57 and Article 63 of the Rules of Court had anyway not
been followed and the Honourable Mr. Mbabazi had not been called upon to make a declaration as
a witness or as an expert under Article64 of the Rules of Court. The Court considers that the
statement made by the Honourable Mr.Mbabzi had been made not in his own capacity but in the
name of the Republic of Uganda and your statemen t will be given the treatment as is normally
given to the statements made by any other counsel and advocate. - 54 -
Finally, this brings to a conclusion this morning’s hearings. The next session of the hearings
will be held tomorrow morning at 10 o’clock. The sitting is adjourned.
The Court is rose at 1.05 p.m.
_____________
Audience publique tenue le lundi 18 avril 2005, à 10 heures, au Palais de la Paix, sous la présidence de M. Shi, président