CR 2005/6
Cour internationale International Court
de Justice of Justice
LAAYE THAEGUE
ANNÉE 2005
Audience publique
tenue le vendredi 15 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 Friday 15 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
Buergenthal
Elaraby
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
Buergenthal
Elaraby
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 session is open. The Court meets today to hear
the first round of oral argument of Uganda. Uganda will take the floor this morning and then on
Monday 18 April at 10 o’clock; on Tuesday 19 April at 10 o’clock; and on Wednesday 20 April at
10o’clock and 3o’clock in the afternoon. I shall now give the floor to His Excellency the
Honourable Khiddu Makubuya, the Agent of Uganda.
Mr. MAKUBUYA:
I. Introduction
1. Mr.President, distinguished Members of the Court, I am honoured to appear before this
Court as Agent, counsel and advocate for the Re public of Uganda. Uganda accepted compulsory
jurisdiction of the Court under Article 36(2) in 1963, less than a year after she became an
independent State. She is very proud of this. In the 40 years since, she has never wavered in her
commitment to, and respect for, the Court, or the principle that the rule of law must prevail in
relations among States. Uganda is mindful of th e gravity of these proceedings and, especially, of
the allegations made against her, but she is comforted by the knowledge that, in this most
honourable judicial forum, the Parties’ respective claims and pleadings will be decided impartially,
and strictly according to the law and the evidence.
2. Terrible allegations have been made against my country by the Democratic Republic of
the Congo, both in her written pleadings and in he r presentations to the Court earlier in the week:
military aggression; looting of resources; systemat ic violations of human rights. As Attorney
General of the Republic of Uganda , I am more than ready, today, to begin Uganda’s response to
these unfortunate allegations.
3. As I reviewed the speeches from the first round of the DRC’s oral pleadings, I was struck
most of all by just how far they are from reality ⎯ both the reality of the historical events at issue,
and the reality of the close and co-operative rela tionship that exists between Uganda and the DRC
today. What transpired the first three days of th is week was evidently desi gned to cater to certain
constituencies inside and outside the DRC, rather than to elicit the truth of the past and present
relationship between our countries. - 9 -
4. From what has been said so far, one woul d scarcely guess that bilateral relations are warm
and growing stronger every day, a nd that co-operation on security matters is excellent. In reality,
the signing of the Luanda Agreement between Ug anda and the DRC in September 2002 ushered in
a new era of collaboration and demonstrated a mutual desire to put the past behind us. Indeed, I
must note that the DRC’s unilateral request to put this case back on the Court’s calendar stands in
tension with the Parties’ joint undertaking in paragraph 4 of the Luanda Peace Agreement “to find a
1
mutually acceptable formula for resolving any existing or arising legal issues between them”.
5. Still, the other elements of collaboration envisioned in the Luanda Agreement have come
to fruition. For example, the Luanda Agreem ent envisioned that the two States would work
together to create an Ituri pacification committee to help bring an end to the ethnic fighting that has
raged in that troubled district in eastern Congo. And I am pleased to report that this commitment to
work together has been fulfilled due to the dedicated, co-operative efforts of many men and women
in both Uganda and the DRC.
6. Since the establishment in June 2003 of th e Transitional Government of National Unity in
Kinshasa headed by President JosephKabila, ti es between Uganda and the DRC have improved
still further. In fulfilment of her undertaking in the Luanda Agreement, Uganda completed her
troop withdrawal from the DRC that same month; that is, inJune2003. Since that time, not a
single Ugandan soldier has been deployed inside the Congo. Let me pause on this point just a
moment. In his opening comments to the Court on Monday, Ambassador Masangu-a-Mwanza said
that there are still Ugandan troops in the DRC. He quoted President Museveni as having stated that
Uganda was continuing to maintain a battalion of the Uganda Peoples’ Defence Force ⎯ UPDF ⎯
at Bundibugyo, which, he suggested, is on Congolese territory. But I am afraid
AmbassadorMwanza is confused. The presence of Ugandan troops in Bundibugyo should shock
no one, for the simple reason that Bundibugyo is in Uganda!
7. In 2004, our countries continued to deepen their co-operation. We established a joint
mechanism to monitor and eliminate border viola tions, particularly by rebel groups still operating
in the frontier region of the DRC. And after the unfortunate attempted coup against
1
“une formule ả l’amiable”. - 10 -
President Joseph Kabila in June 2004, the Ugandan military helped train members of his
Presidential Guard to safeguard not just Preside nt JosephKabila, but also the fragile, on-going
process of national reconciliation in the DRC. InOctober2004, Uganda and the DRC came
together again in a Tripartite Agreement on Region al Security in the Great Lakes, pursuant to
which our two countries ⎯ together with Rwanda ⎯ once again committed themselves to work
together to eliminate security threats posed by arme d groups that continue to operate in the DRC.
As I speak to you today, a Congolese ambassador is in residence in Kampala, Uganda, and the
Ugandan Embassy is open again in Kinshasa, alt hough it is currently operating in leased premises
due to the vandalization of the embassy building in August 1998.
8. With the end of the Congolese civil war, the establishment of a new Transitional
Government of National Unity in Kinshasa, the withdrawal of all Ugandan forces from Congolese
territory, and the excellent bilateral co-operati on on border and security issues, Uganda wonders
why the DRC chose unilaterally to reactivate this case and request that the Court schedule the oral
hearings. Given the promising political steps towards peace and stability in the Great Lakes region,
one must ask whose interests it really serves to c ontinue to make sensationalist allegations against
Uganda that are untrue and anachronistic?
9. Whatever the true answer to these questions, they can evidently not be answered here
today. Uganda must respond to the allegations that stand in unfortunate c ontradiction to the close
bilateral ties that officials in both countries know to be the reality of the situation. I am proud to
introduce Uganda’s response to the allegations and insinuations that have been made in the written
and oral pleadings of the DRC to date.
II. Military aggression
10. I shall turn first to thecentral element of the DRC’s case ⎯ the allegation of military
aggression. There are certain facts that are well established, beyond dispute, upon which all must
agree. These facts are six in number and they are: one, between at least 1994 and 1997, when
PresidentMobutu was in power in the Congo, then known as Zaire, his government tolerated,
encouraged ⎯ from time to time aided and abetted ⎯ armed bands of anti-Uganda insurgents who
regularly launched cross-border armed attacks ag ainst Uganda from their sanctuaries in eastern - 11 -
Congo. Thus, long before Uganda’s alleged aggression against the DRC commenced, which the
DRC posits as at August1998, Uganda was the victim of armed aggression from the Congo, for
which the Congolese Government bears responsibility under international law.
11. Fact two: after President Mobutu fell from power in May1997, his successor,
PresidentLaurent Kabila, invited Uganda to deploy troops in eastern Congo for the purpose of
combating the armed bands who were threatening Uganda’s security. The DRC’s consent
authorized the presence of Ugandan forces in eastern Congo continuously between May 1997 and
August 1998.
12. Fact three: in the middle ofSeptember1998, Uganda dispatched her combat troops to
the DRC in response to a grave and imminent th reat from anti-Ugandan armed bands, who by that
time, had been formally incorporated into the Congolese army and were escalating their
cross-border attacks against Uganda and, most c onspicuously, the imminent threat from the armed
forces of the Government of Sudan which, by vi rtue of a military alliance between the DRC and
Sudan, had sent thousands of Sudanese troops to eastern Congo where they
took up positions
directly threatening Uganda. Notwithstanding what you have heard, there is no truth whatsoever
in ⎯ or even evidence to support ⎯ the DRC’s claim that Uga nda supported in any way the
rebellion against PresidentLaurent Kabila’s Government that broke out on 2August1998, or that
she participated in Rwanda’s military interv ention in the DRC in support of theAugust1998
rebellion. In fact, Uganda declined Rwanda’s invitation to join forces with her against
PresidentLaurentKabila, and tried unsuccessfully to persuade Rwanda not to intervene militarily
in the DRC, and not to fight against President Laurent Kabila.
13. Fact four: when Uganda ultimately did send her troops into the Congo in the middle of
September 1998, it was not to fight primarily against President Laurent Kabila’s forces directly, but
to neutralize the armed bands that had been att acking her, and to expel the hostile Sudanese and
Chadian forces from the Congo. Uganda’s troop st rength, military equipment and operations were
limited to what was necessary to accomplish these strategic objectives. Uganda’s actions were
fully consistent with the needs of her self-defence.
14. Fact five: in July 1999, the Lusaka Agre ement was signed. As the Court has previously
recognized in its Order on interim measures, this was a binding international agreement. The - 12 -
parties, including the DRC and Uganda, recognized that the armed bands that attacked Uganda
from the Congo represented a serious threat to Ug anda’s security, and covenanted that no support
would be provided to them, and that they w ould be disarmed, demobilized, repatriated and
reintegrated into Uganda. The parties furt her agreed that, pending the disarmament and
demobilization of the armed groups, Ugandan forces would remain in the DRC to protect Uganda’s
security. The Lusaka Agreement, therefore, constituted a renewal of the DRC’s express consent to
the presence of Ugandan forces in the Congo, until such time as the armed groups were disarmed
and demobilized.
15. Fact six: in September2002, while th e Lusaka Agreement was still in force, the
Governments of the DRC and Uganda executed a bi lateral agreement at Luanda, Angola, in which
the DRC again recognized the threat to Uga nda posed by armed bands operating from DRC
territory, and again authorized Uganda to maintain troops in eastern Congo for the purpose of
defending herself against them. The Luanda Agreem ent also provided a timetable for the eventual
withdrawal of Ugandan forces from the Congo. By subsequent mutual agreement, the timetable
was eventually extended to the end of May 2003. And, in fact, Uganda fulfilled her commitment to
withdraw her troops from the Congo in accordance with the Luanda Agreement. As I have said,
the last Ugandan troops left the DRC on 2 June 2003. Since that date, there has not been a single
Ugandan soldier deployed in the DRC.
16. These facts are all well established and shoul d be beyond controversy. What Uganda
vigorously denies is that her actions in Augus t and September1998 a nd thereafter constituted
military aggression against the DRC. The ev idence establishes that this was necessary
self-defence, and fully lawful under Article51 of the United Nations Charter and customary
international law. The DRC herself accepted this fact when she agreed, at Lusaka in July 1999 and
again at Luanda in September2002, that Uganda could continue to maintain troops in the Congo
until the armed bands, whose armed attacks threatened her security, were eliminated.
III. The claim of looting of Congolese wealth
17. Among the allegations put forth by the D RC in her written pleadings is the claim that
Ugandan forces went into the DRC for the purpose of looting the Congo’s wealth. This is false. - 13 -
The reason Uganda sent her armed forces into the DRC was for self-defence. The argument that
Uganda sent her troops into the Congo to enrich he rself is also illogical. The Court can readily
imagine how much it costs to maintain troops on foreign soil for five years. It was despite the
economics, despite the enormous costs, that Uganda sent her forces into eastern Congo, because the
attacks against her were so grave that she had no other alternative.
18. PresidentMuseveni repeatedly reiterated th at Uganda’s troops had to abstain from all
business activities in the Congo. Thus, when th e DRC Government first began to complain
publicly about the “illegal” exploitation of C ongo’s natural resources, Uganda wholeheartedly
supported the call for the establishment of a United Nations panel to investigate. Uganda felt, and
still feels, that she has nothing to hide.
19. The report ultimately produced by the first United Nations panel was so problematic that
the Security Council reconstituted the panel, repl aced some of the members, and commissioned a
second, and then even a third, report. Notwith standing the shortcomings of the United Nations
panel reports, and well before the Security Coun cil, in resolution1457 of 24January 2003, called
on States to do so, the Government of Uganda formed an independent judicial commission, known
as the Porter Commission, to investigate the a llegations contained in the reports. To her
knowledge, Uganda remains the first and only State to submit herself to an independent and
exhaustive investigation ⎯ still a further demonstration of her commitment to the rule of law in
international relations, her respect for the United Nations, and her willingness to deal transparently
with allegations of wrongdoing against her.
20. My esteemed colleagues will discuss the Porter Commission’s findings, and their
relevance and significance to these proceedings. I will simply emphasize at this point that the
Porter Commission found that there was no Uganda n governmental policy to exploit the DRC’s
natural resources. In fact, the Commission confirmed that the Ugandan Government’s policy was
exactly the opposite: that its officers and soldie rs were forbidden to engage in any business or
commercial activities in the Congo, and were instructed to respect all property as well as persons in
the DRC. In cases where the Porter Commissi on found there was evidence to support allegations
that individual soldiers acting contrary to or ders improperly engaged in commercial activities or
enriched themselves, it recommended that criminal investigations be initiated against the alleged - 14 -
offender. The Government of Uganda formally accepted the Commission’s recommendations, and
criminal investigations were ope ned by Uganda’s State prosecutorial authorities. Uganda has
committed itself to punish those officers and soldie rs whom the courts find guilty according to the
law.
IV. The claim of human rights violations
21. I will now turn to the allegation of widespread violation of human rights. Uganda denies
that her troops systematically mistreated the civilian population during their stay in the Congo. It
was always the firm policy of the Ugandan Gove rnment that her troops treat the Congolese people
in full conformity with international norms. This policy was communicated directly by the
President, and repeated often by our senior Ministers and military officers. In fact, Ugandan forces
played a key role in ensuring that foodstuffs, medicines and all other necessary supplies for the
civilian population of eastern Congo ⎯ normally furnished from western Congo, but no longer
available from that part of the country because of the war ⎯ were delivered from neighbouring
countries to the east, including Uganda.
22. The Court has heard and read a great deal, from counsel for the DRC and the
international news media, about the tragic bloodl etting in the Ituri region of eastern Congo. The
atrocities committed by the local ethnic militias were, indeed, outrageous, and properly merited the
strong international condemnation that they generate d. What is not proper, however, is to blame
Uganda for these crimes because some Ugandan for ces were stationed in some parts of Ituri.
Ugandan troops were not even present in the villages where most of the killing took place.
23. Uganda did not ignore the killing, however. Over a period of more than two-and-a-half
years, from early 2001 until the middle of 2003, Uganda pleaded with the Secretary-General of the
United Nations and the Security Council to send in United Nations peacekeepers. Uganda warned
the international community that her troops were not sufficient in number or preparation to control
the ethnic violence in Ituri, and that only an international security force under United Nations
mandate could do so. However, just as the inte rnational community delayed and eventually failed
to act to prevent genocide in Rwanda, it delayed a nd failed to act in Ituri for more than two years, - 15 -
during all of which Uganda and ot hers constantly cried out for a United Nations security force.
While doing so, we did whatever we could to stem the violence in the region.
V. Conclusion
24. Mr.President and Members of the Court, my distinguished colleagues and fellow
counsel and advocates for Uganda will now take up each of these themes that I have briefly
outlined ⎯ military aggression, looting of resour ces, and violation of human rights ⎯ and discuss
the evidence and the law in much greater detail than it has fallen on me, as Agent, to describe.
25. Following me to the podium today will be my distinguished colleague from the United
States of America, Mr. Paul Reichler, who will pr esent the Court with a comprehensive review of
the evidence pertaining to the issue of self-defence. Mr. Reichler will use the balance of Uganda’s
time during today’s session. Mr.Reichler will appear in front of the Court again when Uganda’s
first round of oral proceedings continues next week to demonstrate the fact that the Congo
consented to the presence of Ugandan troops in the DRC from the signing of the Lusaka
Agreement in July 1999 through her final withdrawal in June 2003.
26. Also next week, my learned friend, IanBrownlie, Q.C., will address the Court three
times; first, to analyse the issues relating to self-defence, second, to examine the issue of the
consent of the DRC to the presence of Uga ndan troops in the Congo between May1997 and
August1998, and third, to analyse the DRC’s allegations that Ugandan soldiers engaged in
widespread violations of human rights.
27. In addition, Uganda’s Minister of Defe nce and former Minister of State for Regional
Co-operation, the Honourable Amama Mbabazi, will also address the Court concerning the armed
attacks Uganda suffered from the territory of the DRC, as will Major General
Edward Katumba Wamala of the Uganda People’s Defence Forces.
28. Last, but certainly not least, ProfessorEricSuy, former Under-Secretary-General and
Legal Counsel to the United Nations, will take up twotopics: the facts and law pertinent to
Uganda’s two counter-claims, a nd the DRC’s allegations that Uganda illegally exploited the
Congo’s natural resources. - 16 -
29. Mr.President, distinguished Members of the Court, I thank you for your time and
attention. With your permission, I will now ask you to call Mr. Reichler to the podium.
The PRESIDENT: Thank you, Your Excellency. I now give the floor to Mr. Reichler.
RMEr. HLER:
OVERVIEW OF THE FACTS BEARING ON THE ISSUE OF SELF -DEFENCE
Introduction
1. Mr.President, distinguished Members of the Court, I am honoured to appear before this
Court again, and to appear before you this time on behalf of the Republic of Uganda.
2. It is often said that, in war, truth is trst casualty. This is perhaps inevitable. When
wars are fought, by definition the most vital interests of the warring States are involved.
Sometimes their very survival as States, or as independent States, is at risk. Governments may rise
or fall. Territory may be won or lost. Entire cities may be destroyed. Many, many human lives are
tragically ended. In such circumstances, p assions run extremely high, making objectivity all but
impossible. In war, every State sees herself as the innocent victim, and her foe as the malevolent
aggressor. In war, no State recognizes a justifica tion for her adversary’s actions or motives; nor
does she recognize any responsibility of her own fo r her enemy’s hostile behaviour. To do so
might legitimize the enemy’s cause, or otherwise appear to the public as disloyal or unpatriotic. As
a result, inconvenient facts are overlooked, ignored or distorted, out of blind loyalty or a misguided
sense of duty to country.
3. Mr.President, distinguished Members of the Court, we have heard a passionate
presentation from the representatives of the Democr atic Republic of the Congo. They have
depicted their country, as we might have expected, as the innocent victim in this conflict. And they
have portrayed Uganda as an unmitigated evil-doer. To be sure, their country has suffered a great
deal. But for them, there are no complexities, no nuances, no grey areas, no possibilities that there
might be another side to the story. Rather, this is simply a case of good versus evil, or of Congolese
angels versus Ugandan demons.
4. Life is never that simple, and neither is this case. - 17 -
5. It is not my intention to present to the Court a mirror image of the DRC’s arguments, and
describe a similar contest between good and evil, only this time with Ugandan angels and
Congolese demons. I will try instead to avoid passion and hyperbole, to eschew ridicule and
sarcasm, to make no accusations of misrepresentation or bad faith or ignorance of the law by my
distinguished colleagues on the other side of the podium. I will most certainly not use loaded
words like lebensraum to describe the DRC’s attitude or conduct, or attribute arguments to the
other side that I know they did not make solely to discredit them before the Court. Instead, I will
present, as best I can, and with a proper degree of humility in this august setting, what I hope the
Court will consider a balanced, even clinical, review of the evidence concerning a fundamental
issue in this case: whether Uganda’s introductio n of military forces into the DRC in 1998 was a
lawful exercise of her right of self-defence, or whether it was an unlawful intervention. By
proceeding in this manner, I hope to better assist the Court in its task of rescuing and reviving that
first casualty of war ⎯ the truth (veritas) ⎯ so it can, as it should, form the basis of the judgment
that the Court will ultimately render. I will leav e it to my esteemed colleagues, Mr. Ian Brownlie
and ProfessorEricSuy, respectively, to address next week the claims relating to human rights
violations and exploitation of resources by Ugandan forces inside the Congo.
6. Mr.President and Members of the Court, the armed conflict on the border between
Uganda and the DRC did not commence inAugust 1998, or inSeptember1998. It has deeper
roots, which go back at least to 1994, and arguably as far back as 1986. From then, almost without
interruption to the present time, and continuing still, Uganda has been plagued by persistent armed
attacks by rebel bands based in Congolese territory. Th is is not a partisan statement. It is admitted
by the DRC in her written pleadings, and nothing to the contrary was said during her oral
presentation. To properly appreciate Uganda’s position in August and September 1998, when
crucial decisions were made, it is necessary to unde rstand the critical events leading up to that
period, which informed the judgments that were made both by Uganda and the DRC. Accordingly,
the first part of my presentation today will review the evidence from the initial period, from 1986
through the end of July1998, and especially the evidence of persistent armed attacks against
Uganda from Congolese territory throughout that period ⎯ evidence, that as I have said, the DRC
herself does not dispute. - 18 -
7. In the second part of my presentation ⎯ presumably after the mid-morning break ⎯ I will
review the evidence of the events of August and September1998, leading to the introduction of
new Ugandan forces into the DRC and their depl oyment, for the first time, beyond the immediate
border region. Again, my focus will be on the evidence of armed attacks against Uganda by bands
of rebels based in the DRC, which the DRC does not dispute. However, my discussion of the
events of August and September1998 will also focus on the evidence of collaboration and
co-ordination between the Ugandan rebels based in the DRC and the Government of the DRC, as
well as evidence of collaboration of the Governme nt of Sudan and her armed forces with both the
Ugandan rebels and the Government of the DRC in attacks against Uganda.
8. The third and final part of my presentation will address the evidence pertaining to the
post-ceasefire period, which began with the sing of the Lusaka Agreement inJuly1999 and
continued until the final withdrawal of Ugandan military forces from the DRC, which was
completed on 2June2003. Uganda ’s withdrawal of her forces from the Congo was carried out
pursuant to and in conformity with the Lusaka Agreement, and with th e subsequent bilateral
agreement signed by Uganda and the DRC at Luanda, Angola, in September2002. As the
Honourable Attorney General of Uganda has just confirmed, there have been no Ugandan military
forces in the DRC since 2 June 2003.
PART ONE : THE ROOTS OF THE CONFLICT ⎯ FROM 1986 TO JULY 1998
9. The first part of my presentation begins in 1986, when Marshal Mobutu Ssese Seko was
Head of State of the country that is now the DRC, and was then known as Zaire. It extends through
the overthrow of President Mobutu in Ma1y997, his replacement in office by
President Laurent Kabila, and the first 15 months of President Kabila’s rule. As I have stated, the
evidence is undisputed that Uganda suffered armed attacks from Congolese-based insurgents
persistently during this period. From at l east 1994 until he was removed from power, President
Mobutu and his Government actively supported the rebels who carried out these attacks.
10. The DRC admits that the attacks on Uganda from Congolese territory began soon after
the current Government of Uganda took office in 1986. At paragraph 6.21 of her Reply, for
example, Congo states: “As regards rebel move ments operating in the border zone between the - 19 -
two States, it should be recalled that Ugandan rebel movements had existed since at least 1986, the
year when President Museveni came to power.”
11. These insurgent groups included, among others, the Former Uganda National Army
(“FUNA”), the West Nile Bank Front (“WNBF”), the Uganda National Rescue Front II (“UNRF
II”), the National Army for the Liberation of Uga nda (“NALU”) and the Allied Democratic Forces
(“ADF”). Again, the DRC agrees. At paragraph 3.45 of her Reply, the DRC states:
“Admittedly, as has already been poi nted out, Uganda was faced with
continuing operations by a number of armed movements in the border areas, in the
north as well as the west. The NALU (National Army for Liberation of Uganda) may
also be mentioned, in addition to the ADF (Allied Democratic Force), the LRA [that
is, Lord’s Resistance Army], and the WNBF.”
As the DRC explained at paragraph 3.10 of her Reply: “[I]t should be recalled first and foremost
that the zone in question has always been a hotbed of insurgent activity.”
12. Uganda protested repeatedly to President Mobutu about the presence of these rebels on
his territory, to no avail. The threat to Uganda did not yet warrant, however, military action by
Uganda on the Congolese side of the border. Bu t the threat escalated dramatically in 1994,
following the tragic genocide in Rwanda , when the Rwandan armed forces and
government-controlled “Interahamwe” militias slaugh tered 800,000 Rwandan Tutsis and moderate
Hutus. Even as the world recoiled in horror, the Rwandan Government, dominated by Hutu
extremists, received President Mobutu’s active backing. His support was not enough to save that
murderous Government, however. In the chaos th at was Rwanda at the time, rebels from the
Rwandan Patriotic Front took power in Rwanda. Hundreds of thousands of Hutus fled across the
border into eastern Zaire, including tens of thousands of armed génocidaires of the former
Rwandan armed forces and Inte rahamwe militias. With Preside nt Mobutu’s support, they
established tight control over the Hutu refugee camps in Zaire, rearmed and reconstituted
themselves as military units, and received military training from President Mobutu’s armed forces
to prepare for taking back power in Rwanda. With President Mobutu’s assistance, the génocidaires
expanded their military strength and launched attacks both inside Rwanda and against the Tutsi
population native to eastern Zaire. These are historical facts and none of them are contested by the
DRC. - 20 -
13. Uganda joined with the new Government of Rwanda in vigorously protesting President
Mobutu’s shameful support for the genocidal fo rces in their attacks on Rwanda, and their
preparations to return to power there. Uganda also joined the new Government of Rwanda, and
much of the international community, in calling upon President Mobutu to disarm the former
Rwandan soldiers and militiamen, and to remove the refugee camps that they dominated to the
interior of Zaire, away from the Rwandan bor der. President Mobutu ignored these legitimate
demands.
Zaire’s support for the Ugandan rebels
14. He reacted to this criticism, instead, by identifying Uganda as the new Government of
Rwanda’s ally, and therefore as his own enemy. The anti-Uganda rebels already operating in
eastern Congo afforded a ready vehicle for him in his efforts to punish Uganda, and to keep her so
occupied with defending herself that she could not come to Rwanda’s aid. He began by providing
arms, training and logistical assistance to the Ugandan rebels ⎯ just as he was doing with the
former Rwandan soldiers and m ilitiamen, who often trained togeth er with the Ugandan rebels ⎯
and he later co-ordinated activities and participat ed in joint operations with the rebels against
Uganda. The collaboration between the Mobutu régime and the rebels is described at some length
in Uganda’s Counter-Memorial and is supported by detailed first-hand evidence. In addition, my
learned friend and colleague, ProfessorEricSuy, will have more to say on this subject in
connection with his presentation on Uganda’s counter-claims next week. To avoid repetition, I will
not dwell longer on this point.
15. To give the Court a sense of the eviden ce on the issue, however, let me quote from just
one of the numerous first-hand accounts Uganda has offered detailing the connections between
President Mobutu’s régime and the anti-Ugan da rebels. This account comes from one
BwambaleAli, a Ugandan national who joined the anti-Uganda group known as the “Allied
Democratic Forces” or “ADF” in May 1996. It is included in the record as Annex 62 to Uganda’s
Counter-Memorial. After discussing the fact th at ADF weapons were “being ferried on Zaire
government trucks escorted by Mobutu's soldiers to our location”, Mr. Ali states:
“Zaire Generals never visited our battle field but they could always come to
coordinate our operations at our Hqs in Beni . . . During Mobutu’s regime, its Zairean - 21 -
troops who were providing us with security and they were the ones coordinating our
operations. They were the ones escorting our commanders to Kinshasa for meetings
with Mobutu and Sudanese Government officials.” (Errors in original.)
16. Mr.Ali’s testimony provides a useful linkage to another point that is critical to
understanding the threats to Uganda coming from Congolese territory during the Mobutu era, and
afterward. That is, the role of Sudan.
Sudan’s support for the Ugandan rebels
17. Uganda’s relations with Sudan were strain ed ever since Uganda’s Government came to
power in 1986. Sudan had been a close ally and supporter of Uganda’s former dictator, Idi Amin.
From the time of Idi Amin’s downfall through at least 1998, Sudan had a radical régime that sought
to export its brand of religious fundamentalism to other States. To many in the international
community, Sudan was officially labelled a “State sponsor of terrorism” during this period. It is an
established fact that in the 1990s, and as late as 1998, Osama bin Laden made his headquarters in
Khartoum and enjoyed the protection of the Sudanese Government. During this period, Uganda
was one of Sudan’s principal targets. Sudan gave refuge to the former soldiers of IdiAmin, and
organized them in Sudanese territory as the West Nile Bank Front, or WNBF. Later, beginning in
mid-August1998, Sudan transporte d up to 7,000 of these WNBF combatants to the DRC to fight
against Uganda. Sudan also supported and provided sanctuary for the terrorist group known as the
Lord’s Resistance Army, which became infamous for its attacks against northern Uganda, in which
it brutally murdered and mutilated thousands of innocent civilians, and kidnapped (over a 17-year
period) more than 20,000 Ugandan children, forc ing the young boys to b ecome killers and the
young girls to become sex slaves.
18. Following the Rwandan genocide of 1994, President Mobutu and Sudan were quick to
recognize their common interests, at least in resp ect of Uganda. They established an informal
alliance pursuant to which President Mobutu made airfields in eastern Zaire available to the
Sudanese air force for purposes of arming and suppl ying anti-Uganda rebels and attacking Uganda
directly. Also, with President Mobutu’s consent, Sudan set up new bases for the West Nile Bank
Front and Lord’s Resistance Army inside Zair e across Uganda’s north-western border. In 1996,
Sudan facilitated the formation of a new group of Ugandan rebels, composed of religious
extremists committed to turning Uganda into a fundamentalist State; it was called the Allied - 22 -
Democratic Forces, or ADF. They were based in eastern Zaire, well to the south of the Sudanese
border, on the west side of the Ruwenzori mountains that divide Zaire from Uganda.
The increase in armed attacks against Uganda
19. The result of the de facto alliance among the anti-Uganda groups, Zaire and Sudan was
an increase in the attacks on Uganda. In 1996 alone, major attacks against Uganda occurred in
April, May, July and November. The November attack deserves mention. There is a map at tab 1
of the judges’ folder depicting the cities, town s and villages in Uganda that were attacked by
Congo-based rebel forces. For the Court’s convenience, it is also projected behind me. On
13November1996, a force of over 800 rebels from the Allied Democratic Forces launched a
three-pronged assault that overwhelmed the Uga ndan border posts at Mpondwe and Bwera in
western Uganda, and simultaneously attacked the nearby town of Karambi.
20. The attack was facilitated by the Gove rnments of Sudan and Zaire. Annex60 to
Uganda’s Counter-Memorial c onsists of Ugandan intelligence obtained from CommanderBenz
Munyangondo, former ADF Chief of Staff, who turned himself in to Ugandan authorities:
“In 1996 before the Mpondwe attack, ADF received several weapons from
Sudan government with the help of Zair e government. Weapons received included
more than 1500AK 47, 2012.7mm AAC, GPMGs, RPGs, G2s, 60/82mm mortars
and a lot of assorted ammo.”
21. The objective of the November 1996 attack w as to take Kasese, a regional centre with an
important airfield, which the Sudanese air force wo uld then use to resupply the insurgents for a
further assault on Mbarara, the biggest city in south-western Uganda. Although Uganda’s army
(the “UPDF”) ultimately repelled the attack, the insurgents managed to hold Ugandan territory for
several days, during which they killed more than 50 people, most of them civilians.
22. Uganda was not silent in the face of these attacks. It repeatedly voiced its objections and
concerns to Zaire and the international community. In response to the April1996 attack, for
example, Uganda submitted a formal protest letter to the Security Council dated 12June1996
(attached as Annex 7 to Uganda’s Rejoinder) in which it stated:
“On 26April1996 a group of Ugandan dissidents led by one Haji Kabeba
based in Zaire attacked Kisoro, in south-western Uganda, through Busanza and killed
three Uganda People’s Defence Forces (UPD F) soldiers, two soldiers’ wives and one
child. This group was repulsed, seven of the bandits were killed and three captured - 23 -
alive. Information gathered from t hose who were captured revealed that they were
linked to the Sudan-based West Nile Bank Front . . .” (Emphasis added.)
23. Similarly, in response to the ADF’s attack on the border post at Mpondwe
inNovember1996, Uganda lodge d another protest letter with the Security Council dated
12 December 1996:
“The Ugandan border town of Mpondwe was shelled by forces from the Zairian
border town of Kasindi. During the shelling some armed groups from inside Zaire
attempted to re-enter Uganda’s territory . UPDF again responded by destroying
positions that the invading forces were using for launching their attacks against
Uganda territory.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Ugandan dissidents have been living in Zaire, with the full knowledge of the Zairian
authorities. These have taken advantage of the prevailing situation and attacked
Uganda from Zairian territory.” (Emphasis added.)
This protest is included in the record as Anne x10 to Uganda’s Rejoinder. Similar attacks
and protests are recorded in Annexes13, 14 and 15. The Security Council took no action, and
President Mobutu ignored Uganda’s protests, leaving her to fend for herself against increasingly
more frequent and damaging attacks from Congolese territory.
The first Congolese civil war
24. Because of President Mobutu’s support for the ADF and other anti-Uganda rebel groups,
and his facilitation of Sudan’s support for these groups, Uganda was not displeased when he was
driven from power in May 1997. Uganda, in fact, lent her political support to the rebel forces that
were opposed to the Zairean President. However, Ug anda played no role in the military effort to
remove President Mobutu. That military role was played by Rwanda, which as I have said, and as
is well known, had her own special grievances against President Mobutu.
25. There is a tendency in some quarters to view Uganda and Rwanda as uniformly sharing
the same policies and participating in the same actions. The international news media are
especially guilty of this. And, it must be stated here, so too is the DRC in some of her specific
accusations against Uganda in this case, which I w ill come to a bit later. In the Mobutu period,
Uganda and Rwanda both objected to Presi dent Mobutu’s support for the Rwandan génocidaires
and the anti-Ugandan rebels directly across th eir borders, but there were differences in the
magnitudes of the respective threats, and the policies each State developed in response. When - 24 -
Congolese rebel leader Laurent Kabila approach ed Ugandan President Yoweri Museveni and
requested military assistance in his struggle against the Mobutu régime, President Museveni turned
him down. Uganda’s rationale was clear. As President Museveni put it in a speech ⎯ Annex 21 to
Uganda’s Counter-Memorial ⎯ foreign military intervention in civil conflicts is not a good thing.
It “artificially distorts the outcome of the conflicts ; one gets artificial ‘winners’ and ‘losers’; the
political problems, therefore remain unresolved because the winners win artificially and the ‘losers’
lose artificially”.
26. Rwanda felt differently. She simply coul d not tolerate, directly across her borders, the
perpetrators of the monstrous genocide, rearming and preparing to return to power, and already
engaged in ethnic cleansing against the local Tutsi population of eastern Zaire. This was a much
graver and more immediate threat to Rwanda a nd her people than the threat faced by Uganda.
Rwanda, therefore, seized the opportunity presen ted by Mr.Kabila’s re bellion and launched her
own all-out invasion of Zaire to remove Preside ntMobutu from power and install Mr.Kabila as
President.
27. Rwanda’s paramount role in the war agai nst PresidentMobutu, wh at is now sometimes
called the First Congolese Civil War, is undisputed. Indeed, in an interview included as Annex 16
to Uganda’s Rejoinder, Rwandan President PaulKagame expressly claimed credit for the
overthrow of PresidentMobutu and the installati on of President Kabila. Uganda, by contrast,
consistently urged Mr.Kabila to seek dialogue with PresidentMobutu and strongly opposed the
use of foreign troops in the internal affairs of the Congo. Uganda’s refusal to participate militarily
in the First Congolese Civil War is demonstrated by a number of sworn statements, including
Annexes 59, 61, 65 and 66 to the Rejoinder. This was not the first time that Uganda and Rwanda
differed sharply in their respective policies toward the Congo, and it would certainly not be the last.
28. In fact, Uganda and Rwanda strongly disagreed about the DRC from the moment the new
Government under PresidentKabila was established. In particular, Uganda complained about the
fact that the new Congolese army serving Presi dentKabila’s Government was commanded and
controlled by Rwandan officers loyal to Rwanda. This fact is admitted by the DRC. According to
paragraph 2.19 of the DRC’s Reply: “[I]t was a Rwandan army contingent commanded by Colonel
JamesKabarebe, that made up the elite forces a nd the hard core of the Congolese Armed Forces - 25 -
(FAC)... In any event, in 1998 the entire high command of the FAC was in the hands of
Rwandan officers.” In addition to the army, the Government itself was inclined toward Rwanda.
The Congolese Tutsis, who fought alongside the Rwandan army to bring Mr. Kabila to power, were
disproportionately represented in senior ministerial and decision-making positions.
PresidentKabila’s near-total dependence on Rwanda and the Congolese Tutsis was bound to, and
did, bring him serious problems with Congolese nationalists and other Congolese ethnic groups.
President Kabila’s invitation to Ugandan forces
29. Despite her misgivings about President Kabila’s relationship with Rwanda, Uganda
enjoyed good relations with his Government fo r a time. PresidentKabila was grateful for
Uganda’s diplomatic support during the rebellion, and for her training of his police force after he
took power. And upon his taking office, the Cong olese Government ended collaboration with the
anti-Uganda rebels in eastern Congo. Under the command of Rwandan Colonel Kabarebe, the new
armed forces of the DRC ⎯ the “FAC” ⎯ co-operated with the Ugandan military in an attempt to
defeat the rebels. These facts are confirmed in the DRC’s Reply, for example, at paragraphs 3.37
and 3.38.
30. The capacity of the new DRC army to arrest the Ugandan rebels on its own was limited,
however. According to paragraph 3.27 of the DRC’s Reply: “Many sources refer to the difficulties
encountered by the new Congolese authorities on coming to power inMay1997 in ensuring
security of the whole of their vast territory.” As a result, from the very beginning of his
Government, President Kabila invited Uganda to station troops on the Congolese side of the border
to arrest the activities of the anti-Uganda rebel groups. According to a report cited with approval at
paragraph3.37 of the DRC’s Reply: “[T]he Congolese Government troops... are unable to
properly police the hinterland and areas bordering Rw anda and Uganda. As a result, the DRC has
permitted Ugandan military forces to carry out operations and in some cases to conduct joint patrol
activities.” In the DRC’s own words from the same paragraph of her Reply: “[J]oint operations of
the armed forces of the two States inside the border region were thus planned right from
September 1997” (ibid.). - 26 -
31. Operations against the Ugandan rebels we re, in fact, becoming more and more urgent.
Notwithstanding the co-operative attitude of the Congolese Government in the early period under
President Kabila, the lethal cross-border attacks ag ainst Ugandan towns in the west persisted. On
23 July 1997, ADF rebels killed 28 Ugandan civilians and abducted 14 others at Ntokoro, depicted
on the map at tab1 of the judges’ folder and pr ojected behind me. In August, they killed 35 at
Karambi; and in September, another 30 were slaughtered in Nyakahuka. According to
paragraph 3.15 of the DRC’s Reply, the attacks continued
“when the new regime came to power in Kinshasa. As they had always done in the
past, the forces of the ADF continued to seek refuge in Congolese territory. It seems
that fromMay1997 certain ex-FAZ (Zairi an Armed Forces) and ex-FAR (former
Rwandan army) joined this rebel force. The ADF then briefly seized positions in
western Uganda, and its operations continued with renewed vigour.”
32. Given the persistent cross-border a ttacks against Uganda, inDecember 1997,
PresidentKabila invited Uganda to augment her military forces in the Congo, beyond those
engaged in joint operations with the Congolese ar med forces. Next week, my colleagues will
present the particular facts surrounding this De cember1997 invitation from PresidentKabila. In
response to it, Uganda sent two battalions, roug hly 1,200 men, into eastern Congo to supplement
the smaller force that had been sent earlier in th e year. The two battalions set up camps near the
Congolese cities of Beni and Butembo, close to the Ugandan border. A third battalion was
deployed to eastern Congo in April1998, the same month Uganda and the DRC reaffirmed
PresidentKabila’s invitation to Ugandan troo ps in a written Protocol signed by the two
Governments. Again, none of this is contested.
33. My distinguished colleague IanBrownlie will have more to say about the April1998
Protocol between Uganda and the DRC in his pr esentation next Tuesday, in which he will address
the subject of the DRC’s consent to the presence of Ugandan troops in the Congo. Even so, I think
it is worth drawing the Court’s attention to the Protocol now and underscoring its significance.
34. For the period before April 1998, the D RC’s consent to the presence of Ugandan forces
on her soil is amply demonstrated by her conduct. As I have already stated, at paragraph3.37 of
her Reply, the DRC herself approvingly cites a re port that states: “[T]he DRC has permitted
Ugandan military forces to carry out operations and in some cases to conduct joint patrol - 27 -
activities.” In a similar vein, paragraph3.38 of the Reply states: “[V]arious Ugandan military
actions were conducted on Congolese territory with the agreement of the local authorities.”
The Protocol of April 1998
35. The April1998 Protocol marks the first time ⎯ but not the last ⎯ that the DRC’s
consent was put in writing. For the Court’s convenience, a copy of the Protocol, which is entitled
“On Security Along The Common Border”, is attached at tab 11 of your individual judges’ folder.
As you can read, the purpose of the Protocol was “to put an end to the existence of the rebel groups
operating on either side of the common border . . .” . Like the earlier invitations from the DRC to
Uganda, the Protocol sought to eliminate the threat to Uganda’s security emanating from eastern
Congo by providing for the deployment of Ugandan tr oops there. To this end, it provided that “the
two armies agreed to co-operate in order to assure peace and security along the common border”.
36. I am dwelling here on the Protocol because its importance is at least twofold. First, it
represents an unmistakable manifestation of C ongolese consent to the presence of Ugandan troops
on DRC territory. The specific language of the Protocol cited by ProfessorSalmon on Tuesday,
especially the reference to “rebel groups operating on either side of the common border” (emphasis
added) should not cause even a moment’s confusio n. There were no rebel groups operating on the
Ugandan side of the border ⎯ except, of course, when the Congolese-based groups launched
attacks into Uganda. Both Professor Salmon and Professor Corten suggested ea rlier this week that,
because the Protocol spoke of “either side of the common border”, it did not expressly authorize
Ugandan forces to operate on the Congolese side. But this interpretation of the Protocol is
inconsistent with what they said about it in the DRC’s written pleadings: in paragraph 5.23 of the
Memorial, for example, the DRC admitted: “Pri or to 28July1998, Ugandan troops were present
on the territory of the Democratic Republic of th e Congo with the consent of the country’s lawful
Government.” In any event, the conduct of the Parties after the signing of the April 1998 Protocol,
including Uganda’s stationing of troops on the Congolese side of the border and the DRC’s
tolerance of and co-operation with those troops, fully demonstrates what they understood the
Protocol to mean. - 28 -
37. The second reason the Protocol is important is that it represents the first in a series of
written acts of recognition by the DRC that the de ployment of Ugandan forces inside the Congo
was a necessary measure to protect Uganda agai nst armed attacks by the rebel groups based in
Congolese territory. There is no other reason why the DRC Government would have freely
consented to the presence of Ugandan military forces in its territory. Nor was this the only or the
last time the DRC consented in writing to the presence of Ugandan forces in Congolese territory,
expressly in order to protect Uganda against att acks by the rebels based on the Congolese side of
the border. Later in my presentation ⎯ the final part ⎯ I will discuss how the DRC again
acknowledged that rebel attacks against Uganda from the Congo justified the presence of Ugandan
forces in Congolese territory, and again consented to the presence of Ugandan forces inside the
Congo, in the multi-party Lusaka Agreement of July 1999, and in the bila teral Luanda Agreement
between Uganda and the DRC in September 2002.
President Kabila’s difficulties
38. Unfortunately for both States, their bilate ral relationship took a turn for the worse not
long after tAepr1l 98 Protocol was signed, and it deteriorated steadily
between May and Augustof that year. By May of 1998, after a year in power, President Kabila’s
popularity had fallen dramatically. In great measure, this was through no fault of his own. He
inherited from his predecessor, Mr. Mobutu, a State that had been robbed of practically everything
of material value for 37years, not to mention its prior history of prolonged colonial exploitation.
He had no effective State administration or instituti ons to help him govern when he took office. It
was thus inevitable that he would fail to meet the high and unrealistic expectations unleashed
among the populace by the fall of the Mobutu dictatorship.
39. President Kabila’s situation was further complicated, however, by the narrowness of his
political base, and especially by his total military dependence on Rwanda and the Rwandan officers
who commanded his army. As opposition to PresidentKabila grew, it expressed itself in
threatening accusations that he was a puppet of th e Rwandans and their Congolese Tutsi allies, and
that he had sold out the country to them. - 29 -
40. As demonstrations against him grew increasingly aggressive, it became imperative, for
the survival of his Government, that President Kabila lessen his dependence on Rwanda and the
Congolese Tutsis. The DRC acknowledges this in her Reply at paragraph 2.09:
“Thus President Kabila removed certain Tutsi political figures from his
entourage in order to maintain a measure of political equilibrium in the country,
contemplated the recruitment of Congolese into the national army and proposed the
appointment of Congolese officers in order to reduce the influence of foreign officers
within that army.”
41. Among the problems President Kabila faced was finding Congolese officers and soldiers
to replace or reduce the influence of the Rwandans. The only readily available source consisted of
former soldiers of the FAZ, President Mobutu’ s army, which had been formally disbanded but
whose members were still around. Large numbers were thus incorporated into the FAC, the army
under President Kabila. Among the former FAZ sold iers brought into PresidentKabila’s army
were several who had previously served in east ern Congo, along the border with Uganda, and who
had been instrumental figures in PresidentMobutu ’s strategy of supporting the Uganda rebels.
These officers were reassigned by PresidentKab ila to eastern Congo, and as my colleagues will
detail for you next week, they quickly took up their old ways, and renewed contacts with the rebels,
especially the ADF.
President Kabila’s turn to Sudan
42. During the same month ofMay 1998, PresidentKabila sought to reduce still further his
dependence on Rwanda by obtaining political and military support from other neighbouring States.
At paragraph2.09, the Reply states that “in the international arena, the DRC widened its contacts
with countries such as Angola, Congo-Brazzav ille and the Central African Republic, doing so
without any prior consultation of Uganda and Rwanda”. While the DRC does not specifically
identify Sudan as a country from whom she sought support, it is conspicuous that nowhere in any
of her written pleadings does she ever deny that sh e did seek support from Sudan. Nor did any of
her representatives at these proceedin gs deny that fact. In the circumstances of this case, the
absence of such a denial is worth noting.
43. In fact, as my colleagues will describe next week, Uganda learned from her agents inside
Sudan, and confirmed via friendly sources in the Congolese army and Government, that - 30 -
PresidentKabila flew to Khartoum to meet w ith Sudanese PresidentOmar el-Bashir precisely to
solicit military support from Sudan, so that he could reduce and eventually eliminate his
dependence on Rwanda. Uganda wa s not troubled by PresidentKabila’s decision to reduce his
military dependence on Rwanda. As I indicated, from the beginning, Uganda tried to convince
both PresidentKabila and Rwanda that it was a mi stake for Rwanda to exercise control over the
Congolese army. For this reason, Uganda had no problem with PresidentKabila’s effort to
broaden his military support.
44. Until, that is, he sought the support ofSudan. Sudan had never stopped supporting the
ADF, the WNBF, the LRA and other groups of Uga ndan rebels in the DRC. The DRC has made
no effort to deny Sudan’s critical role in supporting the anti-Uganda rebels. In her final written
pleading, entitled “Additional Written Observati ons” on Uganda’s Counter-Claims submitted in
February2003, the DRC claimed to have no offici al position on Sudan’s role in connection with
the rebels. Prior thereto, however, in her Repl y, she adopted as evidence numerous reports of
ostensibly neutral observers who are quite clear that Sudan played a key role in supporting the
anti-Uganda rebels. According to a report quoted by the DRC at paragraph3.23 of her Reply:
“The ADF is led by an illiterate Muslim cleric named JamilMukulu and is financed by the
Salaf Muslim sect, based in Iran and Sudan . . . Exploiting the incapacity of the Congolese Armed
Forces, the ADF has managed to control areas of North Kivu neighbouri ng Uganda.” The DRC
also cites the same report as follows: “[T]he ADF conflict puts Uganda under siege . . . The ADF
is financed by Sudan”. Sudan’s role in supporting the Congolese-based Ug andan rebels is thus
admitted.
The armed attack on Kichwamba
45. President Kabila’s meeting with President el-Bashir in Khartoum was soon followed by
the most notorious attack on Uganda to date. On 8 June 1998, the Kichwamba Technical School,
in western Uganda, was attacked by Sudan-s upported rebels from the ADF operating from bases
inside the DRC. The Congo does not deny this. On 8June, these rebels left their bases in the
DRC, crossed into Uganda and attacked Kichwamba, a secondary school with no military function
whatsoever. The attackers herded scores of Ugandan high school students, children really, into - 31 -
their dormitories, locked the doors, and set the build ings on fire. Then they watched as more than
50innocent children burned to death, and coldly shot and killed at least that many more as they
jumped out of windows to escape the flames. The after-effects in Uganda should not be difficult
for the Court to apprehend. A sense of insecurity pervaded the entire western part of the country,
as thousands of villagers crowded into larger towns and hastily erected centres for internally
displaced persons. The entire citizenry clamoured for protection by the Ugandan Government, and
strong measures to prevent further attacks from across the border. Yet, further attacks followed, for
example, at Banyangule village on 26 June 1998.
The DRC’s attacks on Congolese Tutsis
46. The picture continued to grow more dangerous still. By July 1998, President Kabila felt
sufficiently independent of Rwanda to lend hi s support to the public demonstrations against
Rwanda, and against the Congolese Tutsis. An astute politician, he cleverly turned to his
advantage the nationalist, anti-Rwanda and anti-Tutsi sentiments of large segments of the
Congolese population, which previously had challenged his own nationalist credentials. While this
policy shored up his internal political support, it ha d serious consequences. Anti-Tutsi riots broke
out in Kinshasa and other major cities, resulting in the massacre, arrest and disappearance of
Congolese citizens for the sole crime of being born a Tutsi. Senior members of President Kabila’s
Government either encouraged or defende d these attacks. These are the words of
PresidentKabila’s former Foreign Mini ster, Mr.Yerodia Ndombasi, who is now ⎯ today ⎯ a
Vice President of the DRC. He is, by the way, a highly educated man, a professional
psychoanalyst. These are his words about the Tutsis:
“a psychoanalyst must refuse rabble. A psychoanalyst cannot perform miracles.
When there are rabble, one has to condemn them to be rabble, and the psychoanalyst
can do nothing. And when one says ‘vermin’ ⎯ and I repeat again, these are
vermin ⎯ a vermin is something that introduces itself insidiously into a body, or a
piece of wood, or a plant, or clothes, and moves on. That’s what they did.”
(Counter-Memorial, Ann. 75.)
President Kabila’s break with Rwanda
47. With the DRC Government’s attacks on Congolese Tutsis, and on Rwanda, it found
common cause with the former Rwandan soldiers and Interahamwe militiamen, the remnants of the - 32 -
régime that carried out the genocide against the Tutsi population in 1994, who had lived as
refugees in the DRC and neighbouring countries ever since. President Kabila recruited thousands
of them into special units of the Congolese army, th e FAC. By late July1998, a majority of the
army thus consisted of former FAZ ⎯ that is, former soldiers of President Mobutu’s army ⎯ and
former Rwandan soldiers and In terahamwe militiamen. He had become fully prepared for a
complete break from Rwanda. On 27July1998 , President Kabila issued a momentous decree
ordering that all Rwandan military personnel must leave the DRC immedi ately, including the
senior commanders of his own armed forces. With the departure of the Rwandan forces,
celebrating Congolese crowds launched attacks agains t Tutsis, and others suspected of Rwandan
heritage, all across the DRC, especially in eastern Congo, near the border with Rwanda, where
most Congolese Tutsis lived. Many perished, including many women and children.
The situation at the end of July 1998
48. This brings me to the end ofJuly1998, and the conclusion of the first part of my
presentation of the relevant evidence, covering the period from 1986 untilJuly1998. I spent
considerable time discussing this period because it was ignored completely by the representatives
of the DRC during their three days at the podium. They commenced their version of the facts only
in August1998. I will not comment about their reasons. I will simply state that this is an
important period and the evidence that I have discussed is essential to an understanding of the
critical decisions taken, and the decisive events that unfolded, in August and September 1998, and
thereafter. In summary, the evidence shows that as this period came to an end, the situation that
Uganda faced consisted of the following: 12y ears of persistent cross-border armed attacks by
anti-Uganda rebels based in Congolese territory; three years, between 1994 and 1997, of more
aggressive attacks by these rebel groups with the support of Zaire and Sudan; a recent alliance
between the new Congolese Government and Suda n, which facilitated Sudan’s continued support
for the rebels; a growing collaboration with the rebels by elements of President Kabila’s own
army ⎯ especially former Zairian officers who ha d previously supported the rebels under
PresidentMobutu, and former Rwandan sold iers and Interahamwe militiamen who likewise
considered Uganda an enemy; and an escala tion of attacks by the rebels against Uganda, - 33 -
commencing in June1998 with the horrific as sault on the Kichwamba Technical School and the
burning alive of her students.
Mr.President, this would be a convenient opportunity for the mid-morning break. I have
reached the end of partone of my presentation. will be prepared to start the parttwo when we
resume.
The PRESIDENT: Thank you, Mr.Reichler. The Court goes into recess for ten minutes,
after which you may continue.
The Court adjourned from 11.25 a.m. to 11.50 a.m.
The PRESIDENT: Please be seated. Mr. Reichler, please continue.
Mr. REICHLER: Thank you, Mr. President. I now come to the remainder and slower part
of my presentation.
PART TWO : THE OUTBREAK AND CONDUCT OF THE WAR ⎯ FROM
A UGUST 1998 TO JULY 1999
49. Mr.President and distinguished Members of the Court, this period started explosively.
On 2August1998, at least four brigades of Congolese soldiers, composed mainly of Congolese
Tutsis stationed in eastern Congo, mutinied and d eclared themselves in open rebellion against the
Government of President Kabila. This was the start of the so-called Second Congolese Civil War.
They quickly took control of the cities and towns where they were based, including Kisangani,
Goma, Bukavu and Kindu. The mutiny of the Co ngolese soldiers was a direct consequence of
PresidentKabila’s expulsion of their Rwandan commanders, and his Government’s nationalist
campaign against members of their own Tutsi trie. They quickly organized themselves as the
RCD rebel organization, and immediately received the full political and military backing of
Rwanda.
Rwanda’s invasion of the DRC
50. In support of these RCD rebels, Rwandasent thousands of her own troops across the
border into the DRC, and rapidly advanced north-east to Kisangani and then west across the heart - 34 -
of the DRC. Within weeks, Rwanda occupied almost half of the DRC, and might have gone all the
way to Kinshasa had it not been for the timely in tervention of troops from Angola and Zimbabwe,
which entered the conflict in support of President Ka bila. These are now historical facts, and they
are not contested. It is not my role, or Uganda ’s, to defend Rwanda. I should like merely to state
that, given her history, Rwanda’s unilateral interv ention in the DRC is not surprising. This is a
country that was traumatized by genocide. Her new leaders vowed, above all else, that they would
not permit it to recur; nor would they permit the perp etrators of that genocide to return to power.
Yet, here was PresidentKabila following in PresidentMobutu’s footsteps ⎯ at least in Rwanda’s
eyes ⎯ and aligning himself with the former Rwandan soldiers and militiamen who carried out the
genocide, and either launching or at least tolerating ethnic violence against Congolese Tutsis,
especially in the border area with Rwanda.
The positioning of Uganda’s forces during August 1998
51. Uganda’s situation at the time was peril ous, but certainly not the same as Rwanda’s. As
my colleagues will describe next week, Uganda rejected Rwanda’s entreaties to join in the
intervention into the DRC. Uganda understood, and sympathized with, Rwanda’s determination to
prevent more genocide against members of the Tutsi tribe. But Uganda’s principal concern was to
protect herself against the increasingly aggressive attacks from the Congo-based Ugandan rebels.
As yet, the circumstances did not warrant, in Ug anda’s view, an intervention by her forces.
Uganda was satisfied at this point ⎯ the beginning of August ⎯ to rely on the protection afforded
by her three battalions stationed in the Congo with the consent of President Kabila.
52. The representatives of the DRC have argued in these proceedings that President Kabila’s
consent was withdrawn by his decree of 27 July 1 998. But that is plainly not the case, as the DRC
herself admitted in her written pleadings. At para graph2.27 of her Reply, for example, the DRC
admitted: “On his return from Cuba, [President Ka bila] officially announced, on 27 July 1998, the
end of military co-operation with Rwanda and asked the Rwandan military to return to their own
country.” The context, which I have previously described, also makes it ev ident that the decree
was aimed at the Rwandan forces in the DRC. The decree makes no mention of Ugandans.
Instead, it states specifically that President Kabila, as: - 35 -
“The Supreme Commander of the Congolese National Armed Forces, the Head
of State... and the Minister of National Defence, advises the Congolese people that
he has just terminated, with effect from this Monday 27July1998, the Rwandan
military presence ⎯ the Rwandan military presence ⎯ which has assisted us during
the period of the country’s liberation.”
Thus, while Rwandan troops depa rted, Ugandan forces in the D RC remained where they had
always been, in the vicinity of Beni, near the Ugandan border.
53. This is where they were when, on 6A ugust1998, the Ugandan forces near Beni were
attacked by a combined force of ADF and FAC sold iers loyal to PresidentKabila. This was the
first time Congolese soldiers operated jointly with Ugandan rebels and attacked Ugandan forces. It
was a direct outgrowth of the Congolese rebellion. With much of his own army in eastern Congo
in open rebellion against his Government, President Kabila welcomed into his army whatever
armed groups were prepared to fight for him. The anti-Uganda rebels, especially the ADF and the
WNBF, were thus incorporated into the Congolese army. The Ugandan armed forces defeated the
ADF and FAC at Beni on 6 and 7 August, they took control of the town and its airfield, and they
pursued the attackers north to Bunia, where th ey fought on 13August, with the Ugandan forces
again winning control of the town and the airport.
54. These events were all described in Uganda’s Counter-Memorial, at paragraphs47 and
48. For this reason, there is really nothing ne w in the highly dramatized “revelation”, by the
DRC’s representatives in their opening session on Monda y, that Uganda maintained troops inside
the Congo in August1998. This is a fact th at has always been acknowledged by Uganda,
including, as I have just stated, in her Counte r-Memorial. During the month of August, these
troops were all located in the border area, wh ere Ugandan rebels had long operated or were
suspected of operating. As far as Uganda was concerned, her forces were there with the consent of
PresidentKabila, which had not been withdrawn on 27July1998. In fact, there was never a
formal, or even a direct, communication from the DRC to Uganda withdrawing that consent.
Certainly, there is no evidence that it was even withdrawn de facto before the middle part of
August, at the earliest.
55. Nor is there anything really new in the testimony given by Ugandan officers to the Porter
Commission, which the DRC’s representatives presented on Monday with particular dramatic flair,
as if they had discovered some sort of smoki ng gun that undermined Uganda’s case. On - 36 -
13August, after the battle at Bunia, Uganda mode stly reinforced the troops that were there, as
stated in the testimony to the Porter Commission by LieutenantColonelMugenyi and
Lieutenant Okemu, who were posted to Bunia on that date, 13 August. On 10 August, according to
the memorandum of LieutenantColonelWaswa, also submitted to the Porter Commission and
discussed on Monday, a Ugandan battalion moved to the border post at Aru, and then on
14 August, the day after the events at Bunia, receive d orders to deploy to Watsa, also in the border
region, between Bunia and the Sudanese border to the north. According to
Lieutenant Colonel Waswa, his orders were to keep an eye on things there. This is what the Porter
Commission documents say. Far from a smoking gun, they provide confirmation of what Uganda
has said all along: that in August1998, she had a small number of troops positioned in the DRC,
and they were all in the border area. This is illustrated on the map showing the positions of
Ugandan troops in the DRC during August, which is projected behind me for the Court’s
convenience. As depicted, Ugandan forces were at Beni, Bunia, Aru and Watsa during August, all
in close proximity to the border, as per the consent that had been given previously by
President Kabila.
56. The testimony that PresidentMuseveni of Uganda gave to the Porter Commission is to
the same effect. He testified that there was military activity by Ugandan forces in Beni on
7 August, in Bunia on 13 Augus t, and in Watsa on 24 August ⎯ again, all in the border area. He
testified further that Ugandan troops then sat in place for several weeks, and that is exactly what the
evidence shows. There is no evidence of any comb at operation or tactical advance by Uganda’s
forces in the DRC during the remainder of August. To be sure, on 1 September, at the invitation of
Rwanda, which had previously take n control of Kisangani, Uganda airlifted a few troops there to
guard the airport, which had earlier served as a delivery point for supplies from Sudan to the
anti-Uganda rebels. This is exactly where Ugandan troops we re positioned, and no farther, as of
11September1998, by which time, the situati on that Uganda faced had undergone a significant
change for the worse. - 37 -
President Kabila’s military alliance with Sudan
57. Having reviewed the evidence of Uganda ’s conduct during the month of August 1998, I
will now turn to the evidence of the DRC’s conduct during that month. As my Ugandan colleagues
will describe further next week, Uganda’s intelligence sources within the DRC and Sudanese
Governments, and her electronic interception of communications in Kinshasa, confirmed the
following facts: on 14August1998, BrigadierSa ladinKhalil of the Sudanese army’s Equatoria
Division supervised the delivery of three planeloads of weapons to the Congolese army in
Kinshasa; President el-Bashir of Sudan arranged with President Idris Deby of Chad to send a full
brigade of 2,500 Chadian soldiers to the DRC, a nd Sudan transported that brigade, fully equipped
with armour and artillery, by air to Gbadolite in northern Congo; Sudan provided training for new
Congolese army troops, including former members of the FAZ, and former Rwandan soldiers and
Interahamwe militia, at Sudanese bases in Kit, Frangosika, Tanamule, Rajaf and Konyokonyo, and
then transported the trained troops back to the DRC; in mid-August, Sudan transported
3,500trained WNBF Ugandan rebels to the DRC for incorporation into the Congolese army; on
20 August 1998, President Kabila met again with Presidentel-Bashir in Khartoum, and Sudan
promised to deploy a brigade of her own armed forces in the DRC; on 26August, a Sudanese
Antonov aircraft bombed Ugandan positions at Buni a, in the border region of eastern Congo; on
2September, Sudanese ColonelIbrahim Ismail Habi ballah supervised the delivery of a planeload
of weapons to Gbadolite for distribution to the anti-Uganda rebel group known as the Uganda
National Rescue Front II (UNRFII), that had prev iously been incorporat ed into the Congolese
army; a few days later, a Sudanese brigade of approximately 2,500men under the command of
Lieutenant General Abdul Rahman Sir Khatim arrive d in Gbadolite, deployed to Businga to secure
the airfield there, and then moved eastward, along w ith the Chadian brigade, to secure the airfields
en route to Uganda.
The situation facing Uganda in September 1998
58. This, then, is the situation Uganda faced in early September 1998. Cross-border attacks
by the increasingly well-supplied and emboldened ADF rebels persisted. Damage inside Uganda
mounted. Her forces in the DRC, no more than 2,500 in the border area, were no match for the
advancing Sudanese and Chadian forces, especially we re the latter to control all the airfields in - 38 -
eastern and northern Congo, from which those forces and the anti-Uganda rebels could be supplied
and Uganda herself could be attacked from the ai r. Yet, for Uganda to withdraw her border
protection forces back into Ugandan territory would cede the entire border region to Sudan and the
other forces aligned against Uganda. In fact, ther e was a war on and Uganda was in it, like it or
not.
59. It is therefore inaccurate, I submit, to characterize the threat to Uganda’s security as
“vague”, “imagined” or “theoretical”, as the DRC’s representatives have argued. This is not just of
case of Uganda considering herself “vulnerable” to attack, as was argued earlier this week. Nor is
it accurate to characterize Uganda’s subsequent military action ⎯ which I will come to
momentarily ⎯ as “pre-emptive”, as they have also argued. My esteemed colleague,
Mr. Brownlie, will address the legal aspects of Uganda’s self-defence claim on Monday. My focus
today is on the evidence, and the evidence that I have discussed shows that Uganda had been the
victim of persistent armed attacks, in the form of cross-border raids by rebels based in the Congo
for many years and that, for much of this time , these attacks were supported by Sudan with the
collaboration or at least acquiescence of the Co ngolese authorities. By earlySeptember1998,
Sudan had introduced thousands of her own troops into the DRC, accompanied by an equal number
of Chadians, to conduct armed activities hostile to Uganda. When Uganda eventually reacted to
this very real and very grave threat to her security, after 11 September, it was hardly pre-emptive.
It was to defend her borders against persistent armed attack s from rebel groups that were
imminently to be augmented by the Sudanese army.
The decision by Uganda’s High Command on 11 September 1998
60. Uganda’s decision to confront the Suda nese forces in the DRC, as well as the
anti-Uganda rebels long operating from C ongolese territory, was made, in fact, on
11September1998. The Governme nt of Uganda’s decision was recorded in a contemporaneous,
confidential document entitled: “Position of th e High Command on the Presence of the UPDF in
the DRC”. Uganda introduced this document as an annex to her Counter-Memorial, and discussed
it both in that written pleading and in her Rejoinder. A copy is also included at tab12 of the
individual judges’ folders and, for the Court’ s convenience, the most relevant portions are - 39 -
projected on the screen behind me. As stated in that critical document, which was never intended
for publication, the reasons for Uganda’s decision were:
1. To deny Sudan the opportunity to use the territory of the DRC to destabilize Uganda.
2. To enable UPDF to neutralize Uganda disside nt groups which have been receiving assistance
from the Government of the DRC and the Sudan.
61. Following the decision reflected in this documen t, fresh Ugandan forces were sent into
the DRC to join those already there, to expel th e Sudanese and Chadian forces from the DRC, and
to eliminate the ADF and the other rebel groups that had been attacking Uganda. This is confirmed
in one of the very Porter Commission documen ts that the DRC’s representatives found so
interesting on Monday. I refer to the memorandu m of Lieutenant Colonel Waswa, who, it will be
recalled, was ordered on 14 August to deploy to Watsa, not far from the Ugandan border, in order
to monitor the situation there. LieutenantColonelWaswa wrote: “on 12/9/98 ⎯ that is
12 September 1998 ⎯ I was briefed to move and attack an enemy force at Isiro”. This is fully
consistent with the position Uganda has taken since the beginning of this case. Prior to
11 September, her forces inside the DRC were lim ited in number and confined to the border area.
As a result of the decision made on 11Septembe r, there were both quantitative and qualitative
changes in Uganda’s actions. Several thousa nd new troops were introduced and the order was
given to confront the hostile Sudanese and allied forces and drive them from the Congo. The first
military objective, Isiro and its airfield ⎯ to which Lieutenant Colonel Waswa and the forces under
his command were directed on 12 September, the day after the 11 September meeting ⎯ fell to the
Ugandan forces on 20 September. From there, the advance continued, ultimately to Gbadolite, as I
will describe shortly. Mr.Brownlie, as I have sai d, will discuss the legal implications of these
actions on Monday. For now, I believe the evidence to be clear that there was no Ugandan
“invasion” in August1998, as the representatives of the DRC claimed on Monday and Tuesday;
and however it is ultimately characterized as a ma tter of law, Uganda’s introduction of new troops
into the DRC and the deployment of those troops beyond the border area, were not undertaken until
after 11 September.
62. Now, it is entirely within their rights for my distinguished colleagues on the other side of
the podium to argue, that in their opinion, Uganda’s deployment of armed forces into the DRC after - 40 -
11September1998 does not meet the legal standard s for self-defence. We, of course, disagree
with that opinion, and that is, after all, what this case is about. It is unnecessary, and I would
suggest, slightly out of order, for them to cast moral aspersions about the purity or impurity of
President Museveni’s motives, or for that matter for us to do so about President Kabila’s motives.
In any event, I will respond br iefly to the accusations that were made by some of the DRC’s
representatives about Uganda’s motives.
Uganda’s motives
63. First of all, as I am sure the Court will appreciate, the facts I have already described
constituted motive enough for Uganda to deploy her troops to the Congo, to arrest the rebels who
had been attacking her persistently for 12 years, and to drive out the hostile Sudanese armed forces
that were arming and supplying the rebels, co-ordinating their attacks, and advancing in Uganda’s
direction. There is no serious question that Uganda faced a grave, growing and immediate threat to
her most vital security interests. Indeed, as I will describe later, in the final part of my presentation,
this grave threat to Uganda’s security was explicitly recognized and acknowledged by all of the
States parties to the Lusaka Agreement inJuly 1999, including the DRC, and by the Security
Council, which endorsed the Agreement in at least eight separate resolutions that are annexed to
Uganda’s written pleadings, but that the DRC repr esentatives did not mention earlier this week ⎯
even as they accused Uganda of the selective use of documents. (Resolutions 1265, 1273, 1279,
1291, 1296, 1304, 1323, and 1332 (Counter-Memorial, Anns.49, 50, 52, 58, 61, 70, 77, and 81,
respectively).)
64. Secondly, there is no evidence to s upport the contention by some of the DRC’s
representatives that Uganda’s true motives were to plunder the DRC or to overthrow the
Government of President Kabila; in fact, the ev idence shows quite the opposite. To begin with, if
it had been the policy of the Government of Ug anda to plunder the Congo’s resources, or to
overthrow a neighbouring Head of State, it might have accepted Mr. Kabila’s invitation, in 1996, to
invade Zaire and help him overthrow President Mobutu, who was Uganda’s long-time nemesis.
The evidence is clear, and undisputed, that Uganda refrained from entering that conflict militarily.
While Ugandan forces, to be sure, secured both si des of the border area during that conflict, as a - 41 -
means of self-protection, there is neither any evidence nor accusation that they plundered
Congolese territory at that time. Moreover, the ev idence shows that two years later, in 1998 and
1999, while Ugandan forces were fighting the ADF and the Sudanese inside the DRC, they
undertook no effort to overthrow President Kabila, compelled the Congolese rebels of the MLC to
abandon any such effort or intention, and consistently called for and pursued a negotiated, political
settlement of the Congolese crisis ⎯ a settlement that was ultimate ly achieved with Uganda’s full
support at Lusaka in July 1999.
The DRC’s attempt to attribute Rwanda’s conduct to Uganda
65. It falls to me to point out that, in add ition to attributing motives to Uganda that she did
not have, the DRC’s representatives have attributed certain acts to Uganda that she did not commit.
In particular, I am referring to the acts of Rwanda. Now, it is not difficult to understand the DRC’s
frustration over her inability to bring Rwanda before this Court. However, that does not give the
DRC the right to use Uganda as a stand-in. Ug anda can, and should be, held accountable for her
own conduct, but not for the c onduct of Rwanda. This is especially the case where, as here, the
two States had different interests and pursued divergent, and often conflicting, policies with respect
to the DRC. Indeed, as the DRC’s representativ es emphasized, the armed forces of Rwanda and
Uganda fought against one another in Kisangani, in 1999 and again in 2000.
66. Notwithstanding the two States’ conflicting po licies, which led directly to armed conflict
between them, the DRC accuses Uganda of actions fo r which Rwanda alone is plainly responsible.
This is not accidental. It is only by lumping Ug anda and Rwanda together , and treating them as
one and the same, that the DRC can challenge Uganda’s otherwise irrefutable evidence that
Uganda’s introduction of significant new troops into Congo, and their deployment beyond the
border areas, took place after 11September1998. Thus, the DRC accuses Uganda of invading
Congo on the heels of and in support of the rebelli on against President Kabila that broke out in
eastern Congo on 2August1998. I have already ex plained to the Court that it was Rwanda, not
Uganda, that sent her troops into Congo on or s hortly after 2 August 1998, and that rapidly swept
halfway across the country, deep into Congolese territory. No real eviden ce has been presented,
either in the DRC’s written pleadings or earlier this week, to show that Ugandan forces were - 42 -
involved, and Uganda has consistently and steadfastly denied that they were. Rather than offer
proof, the DRC’s written pleadings simply treat Uganda and Rwanda as indistinguishable, and
attribute to one all the actions allegedly taken by the other. Beyond this, the written pleadings rely
almost exclusively on journalistic accounts by re porters and others wit hout firsthand knowledge,
which generally consist of opinion and rumour. I w ill have more to say about the legal inadequacy
of such forms of proof in a few moments.
Rwanda, not Uganda, attacked the Kitona Air Base
67. In a similar vein, the DRC’s representativ es went to great lengths earlier this week to
impute liability to Uganda for the attack on the Kitona Air Base in western Congo on
4August1998. The same allegations were made in the DRC’s written pleadings. In fact, the
attack on Kitona was carried out by th e army of Rwanda, under the command of
ColonelJamesKabarebe, the same Rwandan officer who, until the week before when he and his
troops were expelled from the DRC by order of President Kabila, had been President Kabila’s army
commander. No Ugandan forces participated in this attack. As I explained earlier, and as my
Ugandan colleagues will confirm next week, Uganda rejected Rwanda’s entreaties to join in
military operations against the DRC. It neither was Uganda’s policy, nor in her interest, to
overthrow President Kabila and his Government. At the time, Uganda’s only concern was securing
her borders, and until then President Kabila had been co-operating in that effort.
68. In her written pleadings, the DRC relied primarily on journalistic sources to support her
contention that Uganda participated in the attack on Kitona. Of course, none of the authors of these
reports claims to have been present at Kitona. The dangers of relying on such accounts should be
obvious, but they are neatly illustrated by the following example. At paragraph 2.42 of the Reply,
the DRC relies on a French academician, ProfessorPrunier, for the assertion that “a certain
number” of Ugandans participated in the attack on Kitona. The DRC then goes on to cite another
source ⎯ the Belgian journalist Colette Braeckman ⎯ for the proposition that the Angolan Army
captured “hundreds” of Ugandans who had fought at Kitona ( ibid.). And finally, what started out
as “a number” of Ugandans participating in the Kitona operation in one source, and then multiplied - 43 -
into “hundreds” of prisoners, finally became “a thousand” captives in still another journalistic
account the DRC attempts to introduce as “evidence” (ibid., citing La lettre de l’océan Indien).
69. On Tuesday, my good fri end and colleague, Mr.Philippe Sands, accused Mr.Brownlie
and me of having a special affection for this Court’s decision in the Nicaragua case. Mr. Brownlie
can speak for himself, but as for me, this is a ch arge to which I plead guilty. It was my great
honour, together with Mr. Brownlie, to serve as coun sel to the Republic of Nicaragua in that case.
The Court was presented with a great number of press reports from both parties, especially from
the United States. The Court recognized the need to treat such reports with “great caution”, stating:
“even if they seem to meet high standard s of objectivity, the Court regards them not as evidence
capable of proving facts . . .” ( I.C.J. Reports 1986, p. 41, para. 62; emphasis added). As the Court
said: “Widespread reports of a fact may prove on closer examination to derive from a single
source, and such reports, however numerous, will in such case have no greater value as evidence
than the original source.” (Ibid., p. 40, para. 63.)
70. In the Oil Platforms case, the position of the Court was reiterated. “These ‘public
sources’ are by definition secondary evidence; and the Court has no indication of what was the
original source, or sources, or evidence on which the public sources relied.” ( I.C.J. Reports 2003,
p. 190, para. 60.)
71. My learned friends on the other side of the podium are, of course, well aware of the
Court’s views on the use of journalistic sources to prove contested facts. That is why, in their
presentations earlier this week about the Kitona a ttack, they avoided mention of them, and instead
spoke of “eyewitness testimony”, a “captured tank ” and a supposed “prisoner of war”. Upon
analysis, none of these sources fares any better as ev idence that Uganda attacked Kitona than the
journalistic accounts that I have just mentioned.
72. In her Rejoinder, Uganda showed each and every one of the witn ess statements offered
by the DRC to be inadequate or lacking in credib ility in multiple respects. I respectfully refer the
Court to paragraphs128 through 135 of the Rejoinder, for this purpose. It would take too much
time to repeat all of that here. But to give the Court a flavour of the problems with the DRC’s
purported evidence, however, I will briefly address th e statement of one JoséDubier to illustrate
the issue. According to paragraph2.35 of the DRC’s Reply, Mr.Dubier is a pilot who flew - 44 -
Ugandan troops to Kitona from Goma, a city in eastern Congo directly on the border with Rwanda.
However, when the Court reads Mr. Dubier’s statement as I hope it will (at Annex 59 to the DRC’s
Reply), it will see that in fact it does not make any mention of him flying Ugandans from Goma to
Kitona. The only thing that Mr. Dubier actually claims is that he saw Ugandans at a hotel in Goma
when the 2 August rebellion broke out. Even more, he specifically states that that he does not know
whether any Ugandans were among the troops he says he flew to Kitona.
73. Setting aside the fact that Mr.Dubier’s statement does not stand for the proposition for
which it is offered, there are still other problem s, which are common to each of the statements
proffered by the DRC in this case. For example, Mr. Dubier does not state how he knew that the
people he allegedly saw in the Goma hotel were Ugandans and not, for example, Rwandans from
just across the border. This is not a small poi nt. Many Ugandans cannot differentiate between
Ugandans and Rwandans. The Tutsis and Hutus of south-western Uganda are similar in
appearance to their brethren in Rwanda. Many thousands of Rwandans, including most of the
officer corps of the Rwandan Army, were born and raised as refugees in Uganda, and like
Ugandans they speak English, not French.
74. I come next to the alleged Ugandan tank that was found in the vicinity of Kitona. The
DRC’s allegation of the tank’s provenance is based on two facts: one, this tank was a Russian-built
T-55 model; and two, Uganda has T-55 tanks. According to the D RC’s Reply, at paragraph 2.40,
this is enough to prove that the tank found near Kitona was Ugandan, and that Ugandan forces must
therefore have been at Kitona. The DRC’s repr esentatives repeated this allegation earlier this
week, but they offered no facts to support it beyond the two that I just mentioned: it was a T-55,
and Uganda has T-55s. But it does not follow from these two facts, which Uganda by the way does
not dispute, that the tank was Ugandan. It is just as likely that the T-55 tank found near Kitona was
Rwandan, because Rwanda too has T-55 tanks. In f act, it is just as likely that the tank belonged to
Angola, or Zimbabwe, both of which conducted co mbat operations near Kitona, as allies of the
DRC. Because they too have T-55 tanks. Or the ta nk could have belonged to the DRC herself. In
fact all of these States have Russian-built T-55 tanks.
75. The DRC’s final attempt at proving the presence of Ugandan troops at Kitona consists of
her claim that she captured one of the Ugandan so ldiers who fought at Kitona, and held him for - 45 -
years as a prisoner of war, before eventually tu rning him over to the ICRC for repatriation. The
alleged POW is one “Salim Byaruhanga”. In support of this claim, the representatives of the DRC
produced a letter from the ICRC, dated August 2001, indicating that ICRC personnel visited three
Ugandans held captive by the DRC, among them a “SalimByaruhanga”. Significantly, however,
the ICRC does not refer to Mr. Byaruhanga or the other Ugandan captives as soldiers or prisoners
of war; it merely refers to them as Ugandan nationals, or Ugandan citizens. Since it is the ICRC’s
practice to identify soldiers or prisoners of war as such, including rank and serial number, it is clear
from the letter proffered by the DRC that the ICRC regarded Mr. Byaruhanga as a civilian detainee.
Uganda takes no issue with this. When war broke out in 1998, a number of Ugandan civilians in
the DRC, including some businessmen and Uganda ns of Tutsi origin, were taken prisoner by
Congolese authorities. Many were never heard fro m again. The two other Ugandan nationals
identified in the ICRC letter, a Mr. Alumale and a Mr. Mugisha, were certainly civilian detainees.
The DRC does not contend otherwise. There is no reason to believe, from the ICRC letter, that the
status of Mr. Byaruhanga was different from that of the other two civilian detainees.
76. Uganda has annexed to her pleadings the sworn statements of her senior military officials
attesting to the fact that Salim Byaruhanga has never been a member of the UPDF, and never held a
position in the Ugandan Government or armed forces; and this will be confirmed by my colleagues
next week. In an attempt to contradict this, a nd depict Mr. Byaruhanga as a Ugandan soldier, the
DRC’s representatives have submitted a statement allegedly made by him to an opposition member
of Uganda’s Parliament, Mr.Aggrey Awori. Uganda addressed this statement thoroughly in her
Rejoinder, at paragraphs136 thro ugh 140, and demonstrated its lack of credibility. I will only
summarize here by observing that satisfying the Congolese authorities was Mr. Byaruhanga’s best
way out of captivity in the Congo, perhaps his only way out. Mr.Awori, too, had interests in
common with the DRC authorities. He was running in the 2001 election for President of Uganda at
the time, and eager for opportunities to discredit his rival, President Museveni. In fact, Mr. Awori
went so far as to claim he met in Kinshasa with 143 Ugandan prisoners of war, captured at or near
Kitona, among them Mr.Byaruhanga. He claimed to have videotaped interviews with all these
so-called POWs, but he never produced those tapes, notwithstanding motions by his fellow
parliamentarians to get him to do so. The DRC makes no pretence whatsoever about the veracity - 46 -
of Mr.Awori’s claim. According to the DRC, she had only one Ugandan POW, and that was
supposedly Mr. Byaruhanga.
77. The important question, of course, is not whether Mr.Byaruhanga was a civilian, as
Uganda affirms and the ICRC seems to have agreed, or a soldier, as the DRC alleges. The question
is whether Ugandan forces participated in the attack on Kitona. It is a measure of the weakness of
the proof in support of the DRC’s claim that she h as nothing more to put forward than the disputed
status of Mr. Byaruhanga. Standing back, for a moment, from this particular detail, it is significant,
I would suggest, that the DRC has been unable to produce any other evidence of Uganda’s military
presence in that part of the country. Unlike easter n Congo, the far western part of the country has
never been occupied or controlled by foreign or Congolese rebel forces. It has always been under
the control of the DRC Government. Ugandan forces were alleged or were believed to have fought
not only at Kitona, but to have marched from ther e and fought at several other places, including
Matadi and Inga Dam. I would suggest to the Cour t that if Ugandan forces were actually at Kitona
and these other places, all under DRC control, they su rely would have left some telltale sign: dead
or wounded Ugandan soldiers; used or spent cartri dges or artillery shells; field equipment; mess
kits; empty or discarded food tins; or the myriad other detritus of battle. If the Ugandan army had
been in western Congo, it is reasonable to believe that the DRC would have found evidence more
tangible and more probative than she has been able to produce. In the absence of such evidence, it
can only be concluded that Uganda did not partic ipate in the attack on Kitona, or in any other
attacks inside the DRC during August of 1998.
78. Mr.President and distinguished Members of the Court, the evidence plainly shows that
Ugandan armed forces were present inside the DRC during August of 1998. But it shows just as
plainly that they were confined to the area adjacent to the common border, and specifically in Beni,
Bunia and Watsa, for the express purpose of protecting Uganda from attack by anti-Uganda rebels
and other hostile forces. The evidence shows that Uganda modestly reinforced her troops in the
border areas on and after 13 August. But ⎯ and this must now be taken as proven, especially since
the evidence proffered by the DRC fails to disprove it ⎯ there were no significant quantitative or
qualitative changes in the number, location or mission of the Ugandan forces inside the DRC
during August1998. It was not until 11September1998, as the evidence establishes, that the - 47 -
Ugandan High Command, chaired by President Musev eni himself, made the decision to deploy
substantial additional forces to the Congo, engage the forces hostile to Uganda, and drive them out
of the DRC, because they believed that such action was vital to Uganda’s self-defence. I
respectfully submit that the evidence before the Court permits no other conclusion as to the timing
of Uganda’s military actions.
Uganda’s military operations in the DRC after 11 September 1998
79. The additional Ugandan troops were depl oyed to Congolese territory over time and in
response to the demands of the military situation. The operational plan called for Ugandan forces
to advance westward from Watsa, stop the eastwa rd advance of the Sudanese and Chadian forces
and drive them back toward Gbadolite, the place where they entered the DRC and the place whence
they would depart if Ugandan forces defeated them. It was critical to the success of the plan that
Ugandan forces take control of all airfields be tween the Ugandan border and Gbadolite. As my
colleagues will explain in greater detail next week , there were no highways or even roads in this
part of the DRC. Travel was by foot, through dense forest and jungle, or by air. Supplies could
only be brought in by air. Control of airfields was a sine qua non for resupplying or reinforcing
troops marching across this terrain. It was also essential in order to prevent enemy forces from
resupplying or reinforcing their own troops, or the anti-Uganda rebels and to prevent an enemy like
Sudan, which has an air force with offensive capability, from using the Congolese airfields to bomb
cities and towns inside Uganda.
80. Thus, starting on 20September1998, the UPDF began to seize the airfields in eastern
and north-eastern Congo. One by one, the UPDF took over the airfields at Isiro, 20 September,
Buta, 3 October, Bumba, 17 November, Lisal a, 12 December, and eventually Gbadolite,
3July1999, as depicted by the map included at tab1 of your judges’ folder, and as projected
behind me. En route, Ugandan troops clashed with and defeated the Sudanese, Chadians,
ADF/WNBF and former Rwandan soldiers and Inte rahamwe militiamen, as described in Uganda’s
Counter-Memorial, at paragraph 54. The Sudanese, Chadian and other forces were steadily pushed
backward until they made a last stand at Gbadolite, as Uganda had foreseen. Just before Gbadolite
fell, the Sudanese and Chadians flew out of its airport, never to return to the DRC. - 48 -
81. This then was Uganda’s military res ponse to the aggression she perceived from the
Congo, an aggression that consiste d of persistent armed attacks over a prolonged period of time,
enhanced during August 1998, by open collaborati on between the anti-Uganda rebels and elements
of the Congolese armed forces that remained loyal to PresidentKabila after the rebellion of
2August1998, and, most dangerous of all for Uganda, the deployment to the DRC, at the
invitation of PresidentKabila, of up to 5,000 hostile Sudan ese and Chadian forces bent on
supporting the anti-Uganda rebels and themselves attacking Ugandan forces.
The evidence bearing on proportionality
82. Taking a look at the number of troops deployed and the equipment used, it is obvious
that they were, in the circumstances, modest. The evidence shows that Uganda never deployed
more than 10,000 troops to the DRC and that they we re infantry forces which had no air power. In
fact, Uganda has no combat air force. Uganda’s troops were always significantly outnumbered by
the combined forces of Sudan, Chad and th e former Rwandan soldiers and Interahamwe
militiamen, who were incorporated into Preside ntKabila’s army and who fought alongside the
Sudanese. In fact, as the United Nations Obser ver Mission reported, Uganda’s troops in the DRC
were also outnumbered by those of Rwanda, Zimbabwe and Angola, the last two of which fought
on the side of President Kabila. (Rejoinder, Ann. 90.) None of these facts is or can be contested
by the DRC.
83. The DRC does complain, however, about th e extent of Uganda’s penetration into
Congolese territory, pointing out that Gbadolite is more than 1,100km from the Ugandan border,
or, as they depicted graphically, as far as Barcelona is from The Hague. Next week, my Ugandan
colleagues will explain the military necessity of denying Sudan, Chad and other hostile forces
control of the Congolese airfields between the Ugandan border and Gbadolite, and especially the
airfield at Gbadolite. They will explain that ta king Gbadolite and its airfield was the only way to
ensure the permanent removal of Sudanese and Chadian forces from the DRC. I am sure the Court
will agree that there is no all-purpose, fixed-mileage formula for measuring the proportionality of a
self-defensive military operation. Rather, proportionality depends, as it must, on the specific
circumstances of each particular case. I trust that by the time the Court has heard all of Uganda’s - 49 -
case, including that part of it which will be presen ted next week, it will conclude that Uganda has
met her burden of showing that her response was proportionate to the aggression and threats
against her, especially from Sudan and allied forces.
PART THREE : THE PEACE AGREEMENT AND ITS FULFILMENT ⎯ FROM JULY 1999
TO JUNE 2003
84. I have now come to the third and final part of my presentation this morning, which
covers the period that begins in July 1999 with the signing of the Lusaka Agreement, and ends on
precisely 2 June 2003, when the last Ugandan troops in the DRC were fully and finally removed.
The Lusaka Agreement
85. The Lusaka Agreement, which, for the Court’s convenience, is included at tab 5 of your
judges’ folder, is nothing less than a comprehensive system of public order that established a
detailed framework for achieving a peaceful resolu tion of the two interrelated armed conflicts
taking place in the Congo: the internal conflict between the Government of the DRC and the
Congolese armed opposition forces; and the external conflict involving the DRC and neighbouring
States, including Uganda. This is very clear from a textual analysis of the Agreement, which it
shall be my privilege to provide next Tuesday, when Mr. Brownlie and I will sequentially address
the subject of the DRC’s consent to the presence ofUgandan forces in her territory. Earlier this
week, Professor Corten suggested that the Lusaka Agreement is a mere ceasefire agreement, whose
obligations were, if they exis ted at all, only provisional. I respectfully submit that this
interpretation of the Agreement makes sense only if one stops reading it after the title. It is, of
course, entitled Ceasefire Agreement. And the agreement does include provisions for a ceasefire.
But it quite obviously was intended by the parties to be, and was, much, much more than that. This
is evident not only from reading the Agreement, but from the consistent conduct of all of the
parties, including the DRC, in the months and years that followed its signature.
86. In the Agreement, the seven States and three Congolese rebel organizations that were
parties expressly recognized that the conflict in the DRC was not simply a case of “invasion” by
foreign forces, as the DRC’s representatives argued earlier this week. Rather, the parties all agreed - 50 -
that “the conflict in the DRC has both internal a nd external dimensions”. The Agreement created
an integrated system of public order designed to address both dimensions.
87. In order to resolve the internal conflict between the DRC Government and the Congolese
rebels, the Lusaka Agreement obligated both th e Government and the three armed Congolese
opposition groups, namely, the MLC, the RCD-K a nd the RCD-G, not only to stop fighting and
disengage their forces ⎯ which would have been enough if it we re intended to be no more than a
ceasefire agreement ⎯ but it also obligated the DRC Government and the three rebel organizations
to participate in a “national dialogue” with all Congolese social and political forces for the purpose
of establishing ⎯ and this is significant ⎯ a “new political dispensation” in the DRC, at
paragraphs19 and 20. In the national dialogue to create a “new political dispensation”, the
Agreement expressly placed the MLC, RCD-K and RCD-G on an equal footing with the DRC
Government. Paragraph 5.2 (b) to Annex A provided: “all the participants in the inter-Congolese
political negotiations shall enjoy equal status”. The Agreement also called for creation of a new
national army, to be established by integrati ng the armed forces of all three Congolese rebel
organizations and those of the Government. The new political dispensation and new army were to
be precursors to democratic election of the new national government. This was the formula agreed
on by all parties for resolving the internal dimension of the Congolese conflict.
88. With respect to the external dimensi on of the conflict, the parties to the Lusaka
Agreement formally acknowledged that the heart of the problem was the use of Congolese territory
by armed bands seeking to destabilize or overthrow neighbouring governments, as well as the
support given to these armed bands by some States. To resolve the problem, the parties agreed on a
series of specific measures to prohibit the signatories from aiding or abetting these groups, to
prevent the groups from continuing to operate fro m Congolese territory and to eliminate them by
disarmament, demobilization, resettlement and reintegration into civil society.
89. Of particular importance to the present proceedings, the Agreement identified as the
principal cause of regional insecurity ten specific armed groups operating from Congolese territory
to be disarmed, demobilized, resettled and reintegrat ed. Of those ten, at least six used Congolese
territory to mount attacks against Uganda, with the backing of the Sudanese or the Congolese
Governments. As identified in the Lusaka Agreemen t, they are: the Allied Democratic Forces, or - 51 -
ADF; the Lord’s Resistance Army, or LRA; th e Uganda National Rescue Front II, or UNRFII;
the Former Uganda National Army, or FUNA; the West Nile Bank Front, or WNBF; and the
National Army for the Liberation of Uganda, or NALU. (Annex C.) These are all the same
organizations about which I have been speaking this morning.
90. Further, the parties to the Lusaka Agreem ent recognized that the presence of the foreign
military forces in the DRC, including those of Ug anda, was a direct response to the presence of
these enumerated armed groups in the Congo. Accordingly, the Agreement explicitly made
withdrawal of the foreign forces dependent on the prior disarmament of the armed groups.
AnnexB to the Lusaka Agreement was entitled “C alendar for the Implementation of Ceasefire
Agreement”. It listed 21“Major Ceasefire Ev ents” and established a chronological series of
interrelated and mutually dependent dates for each of them. Ceasefire event No.17 was the
“Orderly Withdrawal of Foreign Forces” and was scheduled to occur 60 days after ceasefire event
No. 16, the “disarmament of armed groups”.
91. Thus, the parties to the Lusaka Agreement expressly agreed that foreign forces would not
be required to leave the DRC until, inter alia , the national dialogue had taken place and reached a
new agreement on a new political dispensation for the DRC and, even more to the point, the
enumerated armed groups that threatened the secu rity of neighbouring States, including Uganda,
were disarmed and demobilized. Indeed, in paragraph11.4 of Annex A, the Agreement
specifically provided ⎯ it specifically provided ⎯ that all foreign forces were to “remain ⎯
remain ⎯ in their declared and recorded locations” until the occurrence of th ese “Major Ceasefire
Events”.
92. The Lusaka Agreement is of importance to these proceedings because it constitutes a
recognition and acknowledgment by all the parties, including the DRC, that Uganda faced serious
threats to her security from the armed bands that had persistently attacked her from Congolese
territory, and that her security interests re quired the elimination of these armed bands.
ProfessorCorten was therefore quite mistaken earlie r this week when he characterized the threats
to Uganda’s security as a pure fabrication that “never convinced anyone”. In fact, the parties to the
Lusaka Agreement, including the DRC, were not the only ones convinced of the reality and the
seriousness of the threats to Uganda’s security. Th e Security Council itself adopted at least eight - 52 -
separate resolutions recognizing that Uganda a nd other neighbours of the DRC were seriously
threatened by the armed bands based in C ongolese territory, and repeatedly called for the
disarmament and demobilization of these groups and full implementation of the Lusaka
Agreement. I will discuss these Security Council resolutions further on Tuesday.
93. Uganda does not claim, and has never claimed, that the DRC consented to her
introduction of new troops into the Congo after 11 Se ptember, or to her deployment of these forces
beyond the border areas. The basis asserted by Uganda for this deployment into the DRC is
self-defence. However, by 10July 1999, the con sent of the DRC to the maintenance of Ugandan
forces in the Congo, in the numbers and at the locations where they were at that date, was given.
This consent lasted until the Major Ceasefire Ev ents established by the Lusaka Agreement were
completed. Thus, strictly speaking, the time period during which Uganda’s claim of self-defence is
required to justify the presence of forces in the DRC is the ten-month period between
September 1998 and July 1999.
94. It is not Uganda’s position, as the DRC’s representatives stated earlier in the week, that
the Lusaka Agreement retroactively justified the actions taken by Uganda in self-defence after
11September1998. This is one of quite a num ber of bad arguments the DRC’s representatives
have attributed to Uganda, in an effort to ridicu le her and undermine her credibility with the Court.
Of course the Lusaka Agreement does not apply retroactiv ely. Uganda has never contended that it
does. But the recognition and acknowledgment by the parties to the Agreement that the
anti-Uganda armed groups based in the DRC constituted a sufficient threat to Uganda’s security to
justify the continued presence of Ugandan forces in Congolese territory after 10July1999, does
have a logical bearing on Uganda’s self-defence claim. If protection of Uganda’s security against
attacks by these groups required the presence of Ugandan forces in the DRC in July 1999, then it
most certainly required their presence in Congo in September1998, when the armed groups were
stronger, when they were supported by Sudan and when Sudan threatened Uganda’s security
directly from her military positions in the DRC.
95. The DRC’s representatives have challenged Uganda’s claim that Sudan had a military
presence in the Congo on the ground that if Sudan had had military forces in the DRC, she would
have been a party to the Lusaka Agreement. This is not a persuasive argument for two reasons. - 53 -
First, Sudan was not a party to the Lusaka Agreem ent because, as of 10July 1999, there were no
Sudanese troops in the DRC. By that time, Ug andan armed forces had expelled the Sudanese and
the Chadians from the DRC and there was no need for either of those States to be a party. Second,
Professor Salmon expressly acknowledged that Chadian forces were in the DRC, yet Chad was not
a party to Lusaka either. Thus, not being a party meant only that the State in question had no
troops in the Congo as of 10 July 1999, not that it had never introduced troops into the DRC. The
evidence of Sudan’s military presence in the Congo therefore stands.
The fulfilment of the Lusaka Agreement
96. The fulfilment of the Lusaka Agreement took much longer than the parties originally
anticipated. Nevertheless, it was eventually fulf illed, to the great and lasting credit of all the
parties, including the DRC. Again, to the credit of the DRC and her leadership, a successful
national dialogue was held, with the full and eq ual participation of the three Congolese rebel
movements, as well as representativ es from civil society at large and a new political dispensation
was achieved, just as the Lusaka Agreement prescrib ed. It is hardly likely that they would have
gone to all this trouble to create a new governme nt if, as Professor Corten proposed earlier this
week, they believed that the Lusaka Agreement wa s a mere ceasefire agreement with no binding
obligations.
97. The Congolese parties achieved their historic success on 17 December 2002 in a “Global
and All-Inclusive Power Sharing Agreemen t”. That Agreement provided that DRC
PresidentJosephKabila, who succeeded to office af ter his father, President LaurentKabila, was
tragically assassinated by his bodyguards in 2001, was to remain as Head of State until national
elections could be held. Four vice-presidencies were created, with one Vice-President from each of
three Congolese rebel organizations and a fourth from civil society. Thus, Jean-Pierre Bemba, the
head of the MLC rebel organization with which Uganda co-operated is now a Vice-President of the
DRC. So too is the head of the RCD rebel organization that Rwanda supported after the outbreak
of the 2August1998 rebellion. Ministerial pos itions were divided among the various factions.
The Minister for Foreign Affairs is from the MLC. The Minister of Defence is from the RCD. The
new Congolese army incorporated the armed forces of all three rebel organizations. - 54 -
Uganda and the MLC
98. In view of the Lusaka Agreement, the resolution of the internal dimension of the
Congolese conflict and the new political dispensation I have just described, the complaint by the
DRC’s representatives that Uganda provided assistance to Vice-PresidentBemba and the MLC
during the war may be a bit out of place. The DRC herself recognized the legitimacy of
Mr.Bemba and his movement when she signed th e Lusaka Agreement with him, and later when
she made him a Vice-President and incorporated his armed forces into the new Congolese army.
Uganda has never hidden or denied the fact that she assisted Mr. Bemba and the MLC during the
fighting between October1998 and July1999. Mr.Bemba was the most popular political figure
and leader in Equator Province, where Gbadolite is located, and his decision in September 1998 to
join the rebellion against the first President Kab ila quickly attracted thousands of volunteers.
When Ugandan troops first reached Equator Provi nce in October1998, Mr.Bemba and his forces
exercised loose authority over more of the Province than the forces loyal to President Kabila. The
Ugandan troops linked up with those of Mr.Be mba, and together steadily drove the Sudanese,
Chadians and allied forces back toward Gbadolite, and eventually out of the DRC. But Uganda’s
assistance to Mr.Bemba was always limited and he avily conditioned. He was given just enough
military support to help Uganda achieve her objectives of driving the Sudanese and Chadians out of
the Congo, and taking over the vital airfields between Gbadolite and the Ugandan border. As
Mr. Bemba himself acknowledged in the book he wrote, and from which the DRC’s representatives
quoted earlier in the week, President Museveni always insisted that he seek a negotiated, political
settlement with President Kabila rather than a military victory, and Uganda cut off his support
altogether when she suspected he might have other intentions.
99. I will say one more thing about Uganda’s support for Mr. Bemba and the MLC. Uganda
began assisting the MLC after the DRC Governme nt had not only begun to support, but had
integrated into her own armed forces, the WN BF, the UNRFII, and elements of the ADF.
Significantly, the DRC effectively admitted her collaboration with these anti-Uganda rebel groups
and attempted to justify it as legitimate self-defence, on the ground that Uganda had begun already
to collaborate with the Congolese rebels. Here is what the DRC had to say about this in her Reply,
at paragraph 6.49: - 55 -
“It is clear that such support [that is, to anti-Uganda rebels]... could not as
such be regarded as contrary to the oblig ation to refrain from the use of force in
international relations. This limited support would be a typical example of balanced
action in self-defence by a State under attack.”
100. In fact, the evidence I described earlie r in my presentation shows that the DRC was
collaborating with the anti-Uganda rebels as early as August 1998, when entire units of the WNBF
and UNRFII, trained in Sudan, were transporte d to Gbadolite and Kinshasa by the Sudanese and
incorporated into President Kabila’s army. At the same time, WNBF leader, Taban Amin, the son
of Idi Amin, was given the rank of Major Genera l in the Congolese armed forces and appointed by
President Kabila to the General Staff. It was not until October1998, or late September at the
earliest, that Uganda began assisting the MLC. Thus, by the DRC’s own definition of lawful
self-defence, Uganda’s support for Mr.Bemba and his organization at that time was clearly not
inconsistent with her claim of lawful self-defence.
The Harare Disengagement Plan
101. Pursuant to the Lusaka Agreement, th e parties reached subsequent agreements on
specific plans for the disengagement of forces, the disarmament and demobilization of the
enumerated armed groups, and the phased and si multaneous withdrawal from the DRC of all
foreign forces (including those of Angola and Zimbabwe, as well as Rwanda and Uganda). The
agreements implementing Lusaka are known as the Kampala Disengagement Plan of 8 April 2000
(at tab 6 of the judges’ folder) and the Harare Di sengagement Plan of 6 December 2000 (at tab 7 of
the judges’ folder) about which I will speak. Pursuant to these agreements, Uganda withdrew all
but 3,000 of her troops from the DRC by the end of 2000. In other words, by the end of the
year 2000, the number of Ugandan troops remaining in the Congo was only slightly higher than the
number of them in the border areas of the DRC in August1998, at the beginning of the conflict.
Moreover, almost all of the 3,000 Ugandan troops in the DRC after December 2000 were back in
those same border areas. The very limited excepti ons were the small contingents left behind to
guard the airfields at Gbadolite, Businga, Lisala, Isiro and others I have previously mentioned. The
map that the DRC’s representatives presented earlier this week, which depicted Uganda as
maintaining a comprehensive occupation of north ern Congo, from east to west, was certainly good
theatre ⎯ especially when it was superimposed on a map of Europe and covered almost the entire - 56 -
continent. But it was not good geography, or a fa ithful representation of the actual locations of the
Ugandan forces. For this, I would ask the Court to consult the map prepared by MONUC and the
Joint Military Commission, which was set up pursu ant to the Lusaka Agreement. The map is
annexed to the Harare Disengageme nt Plan of 6December2000, which is at tab7 of the judges’
folder, and specifically at page 13 of the Plan. (I know this is not legible on the screen behind me,
but it is depicted to help the Court find the document in the judges’ folder).
102. There are four disengagement areas depicted on this map. The only one that addresses
Ugandan forces is Area1; the other three area s apply to Rwandan forces in the Congo. Even
Area 1, however, is not addressed exclusively to Uganda; it is also addressed to the MLC. Area 1
roughly corresponds to the geographic region on the DRC’s map, which the DRC says was
occupied by Ugandan troops. But the DRC’s map is contradicted by the Harare Disengagement
Plan map and the text of the disengagement plan, which shows the presence of Ugandan forces and
the MLC in this area. This is an important discr epancy. I refer the Court specifically to pages3
and 4 of the Harare Disengagement Plan where it states that this area applies to Uganda and the
MLC. It is an important discrepancy ⎯ Mr. Bemba and the MLC had 40,000 troops at this time,
and largely dominated his home province of Equato r, which extends north to the border with the
Central African Republic and west to the DRC’s border with the Republic of Congo (Brazzaville).
While it is important to remember that when this disengagement plan was adopted, when this map
was prepared, 70per cent of Uganda’s tr oops had already been brought home; only
3,000 remained in the DRC. As I have stated, most of the 3,000 were stationed in the immediate
border areas. Only small contingents remained in the north, to safeguard strategic airfields. The
rest of the area is in the hands of the MLC. Thus, what is depicted on the map produced by the
DRC for these hearings presented earlier in the week is, in reality, a map of the part of the country
that, following the Lusaka Agreem ent and in accord with the Harare Disengagement Plan, was
administered by the MLC, which, as I have shown, is a local power in that region in any event.
103. The DRC’s map illustrates my point about high passions in wartime, and truth as the
first casualty. The DRC’s representatives would certa inly be within their rights to argue that any
Ugandan military presence in any part of the DR C during 2000 was unlawful. We would, of
course, disagree, but a spirited and hopefully en lightening argument would ensue. What is not - 57 -
helpful to a search for truth is the presentation, esp ecially by graphic means, of factual distortions
so prejudicial to the other side that they preclude meaningful debate. In my country, for better or
worse, current political authorities might describe this aggressive tactic as “shock and awe”.
The Secretary-General’s request that Uganda keep her troops in the DRC
104. Very shortly after the adoption of the Harare Disengagement Plan, President Museveni
decided to withdraw all of Uganda’s forces from the Congo. All 3,000 of them. He made a public
announcement to this effect in April 2001, four years ago. This was beyond anything required by
the Harare Plan, adopted four months earlier. The President’s announcement was greeted by an
urgent letter from the Secretary-General, impl oring him that Ugandan troops in the DRC must
remain in place, and must be withdrawn only in accordance with the terms of the Lusaka
Agreement. The Secretary-General’s letter, dated 4 May 2001, is included in the judges’ folder at
tab13. PresidentMuseveni reluctantly complied wi th the Secretary-General’s request; he felt he
had no alternative.
The Luanda Agreement
105. Uganda’s final disengagement from the DRC came about as a result of another major
agreement, the Luanda Agreement of 6Septembe r2002. This was a bilateral agreement between
Uganda and the DRC. A copy of that Agreement is attached at tab8 of your judges’ folder.
Signed by the Presidents of Uganda and the D RC, the Luanda Agreement also recognized the
seriousness and continuing nature of the threats to Uganda’s security caused by attacks from armed
groups of anti-Uganda rebels ope rating from eastern Congo. As a result, the DRC agreed that
Ugandan troops could remain in the Congo until another mechan ism for “guaranteeing Uganda’s
security” is put in place.
106. 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 Mount Ruwenzori”.
Uganda immediately withdrew all forces stati oned at Gbadolite and Beni, as required by the
Agreement, and both States agreed that Uganda n forces in Ituri should remain in place,
temporarily, until further measures could be taken to guarantee peace and security in the region, so
that the Ugandans’ eventual departure would not create a security vacuum. Although the timetable - 58 -
for withdrawal was extended by mutual agreement, the Ugandan forces in Ituri were withdrawn as
scheduled at the end ofMay2002. As has been demonstrated, the last Ugandan soldiers left the
DRC on 2 June 2002. None have gone back.
Summary and conclusion
107. Mr.President and distinguished Members of the Court, this concludes the third and
final part of my presentation of the evidence bearing on Uganda’s claim of self-defence.
Mr. President, if I may have two or three minutes to conclude, I would be very grateful.
The PRESIDENT: Yes, please continue.
Mr. REICHLER: In closing, and by way of summation, I would like to present what I
believe to be, based on the evidence I have discussed, a fair and balanced picture of events as they
stood inAugustandSeptember1998, when the armed conflict that has brought the DRC and
Uganda to The Hague broke out. The picture I w ill present is one, as I promised at the opening of
my remarks earlier this morning, without angels and without demons. It is not a picture without
victims, however, because both Uganda and the D RC are victims. Victims, yes, but entirely
innocent, no, because there is no one in this picture who is totally without blame.
108. At the centre of the picture is President LaurentKabila of the DRC. To survive
politically, he had to break his ties with Rwanda and the Congolese Tutsis, and expel the Rwandan
army from his country, including his entire senior military command. Nationalist passions erupted
into attacks on Tutsis and others deemed of Rwandan origin. For obvious reasons, these measures
did not sit well with Rwanda or the Congolese Tutsis, who felt betrayed by the man they
considered themselves responsible for bringing to power. The result was a Rwanda-backed
rebellion by Congolese Tutsi forces in eastern Congo, and an all out invasion by Rwanda in an
effort to drive President Kabila from power.
109. President Kabila desperately needed allies to survive. Just in time, friendly forces
arrived from Angola and Zimbabwe and they halte d the Rwandan advance short of the capital.
PresidentKabila’s search for military support also led him to Sudan. There is no point in
criticizing President Kabila for this now, much less in moralizing about his motives. The plain fact - 59 -
is he was in a desperate situati on, he needed all the help he could get because without it Rwanda
could have, and would have, defeated him. The problem was Sudan’s military support came with a
high price: a licence for Sudan to step up support for anti-Uganda rebels inside Congo; to arm,
train and deliver to Congo more than 7,000new Ug andan rebels; and to deploy her own forces,
and those of Chad, in northern and eastern Congo, especially at strategic airfields, to better
facilitate supplying and reinforcing the Ugandan rebels, and to conduct aerial attacks on Uganda, as
Sudan had done in the past. This was the price of Sudan’s support, and PresidentKabila chose,
however reluctantly, to pay it.
110. Also at the centre of the picture is Pr esident YoweriMuseveni of Uganda. He had
endured for 12years persistent cross-border attacks from rebels based in Congo and he was
answerable to the increasingly alarmed and restive people of western Uganda for his inability to
provide them with security against these attacks. Then came the attack on the Kichwamba
Technical School and the burning of the students. Then came larger, better co-ordinated and even
more deadly and destructive cross-border a ttacks. Then came the rebellion against
PresidentKabila, Rwanda’s intervention, and th e complete breakdown of order in eastern Congo.
During August, President Museveni did two things. He reinforced and repositioned the Ugandan
forces in the border areas of the DRC, but still kept them close to the border. And he
peripatetically attended summit after summit in an effort to facilitate a ceasefire and negotiation of
a political settlement that would bring stability to the DRC and secure borders for her neighbours.
Unfortunately, he had no takers. Instead of facilitating peace, his fellow Heads of State opted to
send their own troops into the DRC.
111. Then came a dramatic and qualitative ch ange in Uganda’s assessment of her security
situation. Sudan entered the war, along with Chad, in the manner and for the purposes I have
previously described. The 11September1998 do cument, which records the decision taken by
Uganda, shows that it was because of Sudan, and he r history of attacking Uganda both directly and
through Congo-based and Sudan- based rebels, that Uganda felt compelled to act. Like
PresidentKabila, PresidentMuseveni was convinced that his State was under attack, and that her
vital security interests demanded extraordinary meas ures of self-protection. PresidentKabila had
to go to others to protect his security interests. Uganda relied on her own military resources. - 60 -
112. Mr.President and Members of the Court, I hope you will forgive me for this lengthy
presentation, but it has fallen on me to review the relevant evidence relating to the claim of
self-defence, and there has been quite a bit of it to review. I thank you deeply for allowing me the
honour of appearing before you, and for bestowing on me your kind attention throughout my
presentation. I hope you all enjoy a pleasant weekend, and I shall look forward to appearing before
you again next week, although, I give you my most solemn assurances, fo r not nearly as long a
time. Thank you and good morning.
The PRESIDENT: Thank you Mr. Reichler. Th is brings to a conclusion this morning’s
session. The Court will resume the hearings of the oral argument of Uganda on Monday, 18 April
at 10 o’clock. The Court is adjourned.
The Court rose at 1.10 p.m.
___________
Audience publique tenue le vendredi 15 avril 2005, à 10 heures, au Palais de la Paix, sous la présidence de M. Shi, président