Traduction

CO

CR 2005/11 (traduction)

CR 2005/11 (translation)

Vendredi 22 avril 2005 à 10 heures

Friday 22 April 2005 at 10 a.m. - 2 -

8 Le PRESIDENT: Veuillez vous asseoir. L’audience est ouverte. La Cour se réunit

aujourd’hui pour entendre la fin du premier tour de plaidoiries de la République démocratique du

Congo concernant les demandes reconventionnelles de l’Ouganda. Je donne donc la parole à

M. Klein.

Mr. KLEIN: Thank you, Mr. President.

THE FIRST UGANDAN COUNTER -CLAIM , IN RESPECT OF THE PERIOD BEFORE
P RESIDENT K ABILA CAME TO POWER ,IS INADMISSIBLE AND ,

ALTERNATIVELY ,UNFOUNDED

1. Mr.President, Members of the Court, the response of the Democratic Republic of the

Congo to Uganda’s counter-claims will be presented as follows:

⎯ ProfessorOliverCorten and myself will deal with the first Ugandan counter-claim, whereby

Congo allegedly failed to fulfil its international obligations by using force against Uganda; in a

moment, I will clarify the scope and subject-matter of each of these presentations;

⎯ the second Ugandan counter-claim, whereby the Con go was allegedly guilty of ill-treatment of

Ugandan nationals in Kinshasa in August 1998 and purportedly appropria ted certain Ugandan

property, will be addressed by ProfessorJean Salmon and MaîtreTshibanguKalala; on a

principal basis, ProfessorSalmon will show that the way in which this claim was initially

presented and then modified by Uganda renders it inadmissible; on an alternative basis,

Maître Tshibangu Kalala will set out the reasons why that second claim is unfounded.

2. The first Ugandan counter-claim, concerning the alleged use of force against Uganda by

the Congo, is presented in broad terms and cove rs quite an extensive period of time. The

“examples” of the use of force on which Uganda bases its claim extend from 1996 to 1999. Those

years in fact cover threedifferent periods, corresponding to totally distinct factual and legal

situations. The Congo thus finds it necessary to deal with those periods separately, even though the

9 other Party seems, in its oral statement on the c ounter-claims, to have considered such separation

quite unnecessary. The first of those periods corr esponds to the end of Marshal Mobutu’s régime

and runs up to May 1997, when President Laurent- Désiré Kabila came to power in Kinshasa. The

1
CMU, pp. 221-228, paras. 387-408; RU, pp. 302-311, paras. 655-674. - 3 -

second period runs from May1997 to early August1998, corresponding to the time when

President Kabila was actively collaborating with the Ugandan authorities in order to ensure security

along the common border. The third period is that which followed the outbreak of the war in

August 1998. Later on, Professor Corten will show that Uganda’s first counter-claim, in respect of

those last two periods, is totally unfounded. For my part, I will focus for the time being on the first

of those periods, showing on a principal basis that this part of the claim is inadmissible on the

grounds that it should be regarded as having been renounced by Uganda. In th e alternative, it will

be established that this claim is unfounded, because there is no evidence in the file to show that

Zaire either attacked Uganda directly during that period or provided support for rebel groups which

are said to have engaged in attacks against Ugandan territory from bases situated in Zairean

territory. However, before embarking upon that de monstration, I wish to begin by clarifying our

contention that, contrary to what Uganda has argued, the Democratic Republic of the Congo is

perfectly entitled, at this stage of the proceedi ngs, to raise preliminary objections against the

counter-claims submitted by the Respondent.

I. The Democratic of the Congo is justified in raising preliminary objections
against Uganda’s counter-claims

3. The very principle of submitting preliminary objections to claims accepted as
2
counter-claims has been disputed by Uganda in its last oral statement . In its Rejoinder, the

Respondent even saw fit to characterize the Congo ’s argument on this point as an “unacceptable

3
and bizarre opinion... on the application of provisions of the Statute of the Court” . It is thus

necessary first to return to that question of prin ciple and to remind Uganda of a number of basic

10 procedural concepts. It will be recalled at the Cour t itself was at pains to do this, in a particularly

instructive way, in the Oil Platforms case, where the question had arisen in the same terms. If I

may, I would thus like to quote the relevant extract in full from the Judgment of 6 November 2003:

“The Court considers that it is open to Iran at this stage of the proceedings to

raise objections to the jurisdiction of the Cour t to entertain the counter-claim or to its
admissibility, other than those addressed by the Order of 10March1998. When in
that Order the Court ruled on the ‘admissib ility’ of the counter-claim, the task of the

Court at that stage was only to verify whether or not the requirements laid down by

2
CR 2005/10, p. 29, para. 17 (Mr. Suy).
3
RU, p. 284, para. 616. - 4 -

Article80 of the Rules of Court were satisfied, namely, that there was a direct

connection of the counter-claim with the subject-matter of the Iranian claims, and
that... the counter-claim fell within the jurisdiction of the Court. The Order of
10March1998 therefore does not address any other question relating to jurisdiction
and admissibility, not directly linked to Article80 of the Rules... The Court will

therefore proceed to address the objections now presented by Iran to its jurisdiction to
entertain the counter-claim and to the admissibility thereof.” 4

The explanation is thus crystal clear and does not, I feel, call for further comment. The

Democratic Republic of the Congo is thus full y entitled to submit preliminary objections to

Uganda’s counter-claims.

4. However, in his oral statement on Wedn esday, ProfessorSuy went on to say that the

Congolese preliminary objections were unacceptable in any event, because they failed to meet the

5
requirements of Article79 of the Rules of Court . This was apparently because they were

allegedly not submitted in the form, or within the deadline, prescribed in that Article. The

Democratic Republic of the Congo must confess that it has some difficulty in comprehending that

criticism. It made the objections in question in its Reply, which indisputably constitutes the first

written pleading following both the submissi on of counter-claims by Uganda in its

Counter-Memorial and the Order whereby the Court ruled on the admissibility of those claims as

counter-claims. It is thus difficult to see at what other point in time those objections should have

been submitted. As it was unable to comply literally with Article79, which does not expressly

contemplate the submission of preliminary objecti ons in respect of counter-claims, the Congo

11 rigorously applied the principle of that provision, mutatis mutandis, to the situation with which it

was confronted. The Democratic Republic of th e Congo thus followed exactly the same approach

as Iran in the Oil Platforms case. Thus there is no problem of form in the instant case.

Having disposed of those preliminary issu es, I would now like briefly to discuss the

objection to admissibility submitted by the Democrat ic Republic of the Congo against the first part

of Uganda’s first counter-claim.

4
Judgment of 6 November 2003, p. 210, para. 105.
5
CR 2005/10, p. 30, para. 19 (Mr. Suy). - 5 -

II. The first Ugandan counter-claim, in respect of the period before President Kabila
came to power, is inadmissible on the ground that it should be regarded

as having been renounced by Uganda

5. Mr. President, Members of the Court, the first Ugandan counter-cla im, in respect of the

period before PresidentKabila came to power, is inadmissible on the ground that it should be

regarded as having been renounced by Uganda. Under Article 45, paragraph (b), of the Articles on

State Responsibility adopted by the International Law Commission in 2001 “[t]he responsibility of

a State may not be invoked if . . . [t]he injured State is to be considered as having, by reason of its

conduct, validly acquiesced in the lapse of the claim”. Our opponents dispute that argument,

asserting that such a renunciation cannot be establis hed with certainty, on the ground that Uganda

never clearly expressed its intention not to follow up the protests it claims to have raised against

certain conduct by Zaire towards the end of Marshal Mobutu’s presidency.

6. The elements which led the Democratic Re public of the Congo to conclude that Uganda

had renounced its right to invoke the internationa l responsibility of the Congo in respect of acts

dating back to that period fall into two categories. On the one hand, even at the material time,

Uganda never expressly imputed international responsibility to Zaire, and did not even express any

intention of formally invoking such responsibility. On the other, and in any event, the relations

which developed between the two States after Pr esident Kabila came to power, as well as their

close collaboration, particularly in the area of security, led the Congolese authorities to believe,

12 quite understandably, that Uganda had no intention of resurrecting certain allegations from the

period concerned and of seeking to engage the Congo’s international responsibility on that basis.

7. Regarding the first of those points, it should be recalled at the outset that Uganda, in the

instant proceedings, has never produced the slightest document to confirm its allegations that it

addressed direct protests to Zaire in reaction to the support allegedly given by that State to

Ugandan rebel groups, or because of alleged attacks directly perpetrated by the Zairean army

against Ugandan territory. Admittedly, as Professor Suy indicated in his statement on Wednesday,

multilateral diplomacy does offer other instrument s and other means of communication whereby

such protests may be formulated 6. But that still supposes, for our purposes, that a meaningful

complaint was actually submitted and that responsibility was thus meaningfully imputed. Is that

6
CR 2005/9, para. 22 (Mr. Suy). - 6 -

the case here? I will simply look at one of the le tters addressed by Uganda to the Security Council

in 1996, to which our opponents have drawn particular attention. That letter is accompanied by a

communiqué, addressed to the Security Council for the information of its members and which

seeks ⎯ it should be recalled ⎯ to address earlier allegations by Zaire of armed aggression on the

part of Uganda. The relevant passage, in wh ich Uganda comments on the presence of rebel groups

in Zairean territory, reads as follows:

“An example of this is the time Ugan dan dissidents have been living in Zaire
with the full knowledge of the Zairian author ities. These have taken advantage of the

prevailing situation and attacked Uganda from Zairian territory. UPDF assumed its
constitutional responsibility of defending Uganda and flushed the enemy out of
Ugandan territory. Zaire should muster the courage and acknowledge the fact that the

problem within ea7tern Zaire is a result of its own oppressive policies against
a section
of its citizenry.”

13 That is all. This is a far cry from a formal imputation of responsibilit y to Zaire, nor does it

constitute the “notice” which may be expected of a State when it seeks to impute responsibility to

another, according to Article 43 of the Articles on international Responsibility of States, adopted by

the International Law Commission in 2001, which pr ovides that “[a]n injured State which invokes

the responsibility of another State shall give notice of its claim to that State”. Yet, the other

documents referred to by Uganda contain no fo rm of words which would go beyond the example I

8
have just cited . In the absence of any initial formal protests, the Zairean, then Congolese,

authorities could not readily have imagined that Uganda intended to reserve the right to impute

responsibility to the Zairean or Congolese State on account of those allegations. Moreover,

subsequent developments in rela tions between the two States would lead the Congo to consider

that, if it had ever intended to do so, Uganda had in any event renounced any right to invoke the

responsibility of the Democratic Republic of the Congo for alleged violations of international law

dating back to the period of Marshal Mobutu’s presidency.

8. It should thus be recalled that, as soon as Pr esident Laurent-Désiré Kabila came to power,

relations between the Congo and Uganda were marked by very close co-operation, in particular in

matters of security. The formal manifestation of that co-operation was the conclusion of an

7
Letter of 12 December 1996, doc. S/1996/1038, RU, Ann. 10.
8
For further details, see AWODRC pp. 10-14, paras. 1.12-1.18. - 7 -

9
agreement pertaining to the training by Uganda of members of the DRC police force and, even

more significantly, by the conclusion of the Ap ril 1998 Protocol on Co-operation for the purposes

10
of security along the common border , which has already been extensively referred to during the

present proceedings. That co-operation was also manifested physically on the ground, with the

presence on Congolese territory of Ugandan troops and the organization of joint military actions to

enhance security in the border zone. As Mr. Brownlie quite rightly observed in one of his

statements last week with respect to that period, “[t]he evidence of the close co-operation between

11
the two States in the context of public order is palpable” . It is precisely that context of close

14 co-operation which led the Democratic Republic of the Congo to believe that Uganda had clearly

renounced any intention of engagi ng the responsibility of the Congo for the acts now in question,

assuming that is, as I have already said, that Uganda ever had the intention of doing so ⎯ and that

is far from being established.

9. There is certainly no question here of presuming any renunciation by Uganda or of

inferring it simply from the passage of time, as Pr ofessorSuy seemed to suggest the day before

12
yesterday . The Democratic Republic of the Congo was led to that conclusion by far more than

the passage of time, in fact by the context of the relations between the two States. To be sure, a

renunciation cannot be presumed. However, like consent, it may be expressed explicitly or

implicitly, provided in the latter case that it can be considered as certain.

10. ProfessorCrawford, in his Third Report on State Responsibility, indicated that the

“decisive factor” to be taken into consideration in order to assess the reality of a renunciation to

submit an international claim was the fact that “the responsible State could reasonably have

13
believed that the claim would no longer be pursued” . Is this not precisely the situation in which

the Congo found itself in the present case? Could it reasonably have expected that Uganda would

submit an international claim against it on account of acts dating back to the Mobutu period, when

Uganda had never formally sought to engage the responsibility of Zaire for those acts at the time

9CMU, Ann. 16.

10CMU, Ann. 19.
11
CR 2005/8, para. 19 (Mr. Brownlie).
12CR 2005/10, para. 23 (Mr. Suy).

13Doc. A/CN.4/507/Add 2, p. 16, para. 259. - 8 -

they allegedly took place? Could the Congo r easonably expect that Uganda would submit an

international claim against it on account of the acts in question, when Uganda expressly justified its

military intervention in Zaire in 1996 to 1997 on grounds of self-defence in reaction to the very

attacks which are now said to underpin the Uganda n claim? Counsel for Uganda has admittedly

denied this latter contention several times during the present proceedings 14. However, it suffices to

recall the speech given by the Ugandan Minister fo r Foreign Affairs to the United Nations General

Assembly in March 1999 to understand that this abrupt denial is hardly credible. The name of the
15

Minister in question will doubtless be familiar to Members of the Court, since it was His

ExcellencyAmama Mbabazi, who took the floor earlie r this week. Remaining faithful to what

seems to have become a Ugandan tradition of modest y when one considers the extent of the use of

force by that country, a few days ago Mr.Mbabazi attributed all the credit for the overthrow of
15
PresidentMobutu to the Rwandan army alone . Here, by contrast, is what he stated before the

General Assembly in March 1999:

“The Uganda government decided to act in self-defence by first recapturing the

territory these criminal elements [Uganda n rebel groups] had occupied and followed
them in hot pursuit into Zaire, as we were fully empowered to do under Article 51 of
the United Nations Charter. It was an act of self-defence against the Democratic

Republic of the Congo-based [in fact Zair e-based] rebels, which was undertaken with
regional and international understanding and support, that resulted in the fall of
President Mobutu. President Kabila was a direct bi-product of this process.” 16

Thus, on its own admission, Uganda pr ovided military support from the outset to

Laurent-Désiré Kabila’s rebellion with a view to bringing him to power. If it had wished to present

any complaint for actions attributable to the fo rmer Zairean régime, Ug anda could have been

expected to have immediately made such complaints to the new Government. It did no such thing.

11. Lastly, and above all, could the Congo reasonably have expected that Uganda would

submit an international claim against it in respect of those facts, when a particularly close

co-operation had developed between the two States, precisely in matters of security, with the

Congolese authorities going as far as accepting signifi cant contingents of Ugandan troops on their

14
CR 2005/6, pp. 23 and 24, paras. 24-27 (Mr. Reichler).
15
CR 2005/7, p. 40, para. 16 (Mr. Mbabazi).
1General Assembly, Fifty-third Session, 95th Plenary Meeting, 23Ma rch 1999, doc. A/53/PV.95, CMU,
Ann. 42, p. 14. - 9 -

territory? How could the Congolese authorities have suspected that this active co-operation policy

would leave intact any intention that Uganda may have harboured–– and indeed carefully

16 concealed–– to engage, at any time, the res ponsibility of its new partner on account of acts

allegedly committed several years earlier?

12. All of these elements clearly come t ogether to justify the belief–– and a highly

reasonable one at that–– of the Congolese author ities that Uganda had definitely renounced any

intention to engage the responsibility of the Congo for the acts in question, which dated back to the

Mobutu period. The recognition of renunciation as a ground for inadmissibility of an international

claim can above all be explained by a concern for legal certainty and for stability in international

relations. That objective would be totally underm ined if a State which had never submitted any

clear claim against another State in the past were allowed suddenly to submit such a claim,

especially where it was based on matters in respect of which those States had in the meantime

engaged in close co-operation.

13. All of these elements now serve to render inadmissible this first part of Uganda’s first

counter-claim, since Uganda should be regarded as having implicitly, but definitively, renounced

any such claim. It is thus on a purely alternative basis that I will now seek to show, to conclude my

statement, that the first Ugandan counter-claim, in respect of th e period before PresidentKabila

came to power, is devoid of foundation.

III. In the alternative, the first Ugandan counter-claim, in respect of the period
before President Kabila came to power, is devoid of foundation

14. This question will be addressed very briefly, since the main observation to be made here,

when one considers that initial period, is that the judicial debate concerning it has reached a

stalemate. In its opening statement, theoretically devoted to a summary of the available evidence,

Uganda mentioned no more than two documents , that is to say, Annexes60 and62 to its

Counter-Memorial 17. And in its oral argument on the counter-claims, ProfessorSuy, for his part,

18
referred in very general terms to Uga nda’s Counter-Memorial and its annexes . However, the

17 Democratic Republic of the Congo showed in great detail, in its Reply, which was filed–– it

17
CR 2005/6, pp. 20 and 22, paras. 15 and 20 (Mr. Reichler).
18
CR 2005/10, para. 5 (Mr. Suy). - 10 -

should be recalled–– almost three years ago now , why those documents, emanating unilaterally

19
from Uganda, fail to meet the judicial standard of proof . Uganda chose not to respond to those

criticisms in its Rejoinder, as the Democratic Republic of the Congo was at pains to point out in its

20
Additional Observations on the counter-claims .

15. However, during the present oral proceedings, Uganda has confined itself to citing those

documents once again, without ever mentioning the criticisms of the Congo, and still less

responding to them. One can thus only hope th at our opponents will deign to provide some

response to those criticisms during their next round of oral argument. It will be recalled that the

main criticisms put forward by the Democratic Re public of the Congo stem from the fact that the

only documents presented by Uganda as evidence of support by the Zairean Government for

Ugandan rebel groups, or as evidence of the involvement of Zairean armed forces in the activity of

those groups, consist in statements purported to have been made by former members of the ADF or

other rebel groups who were captured by or surrendered to the Ugandan army. Annexes 60 and 62

contain documents prepared in the year 2000. Those documents are not signed and bear no

indication (such as official stamps or seals) to pr ovide confirmation of their precise date of issue.

Their contents, with respect to the points on wh ich Uganda seeks to base its arguments, are

particularly vague.

16. Thus, the information which was allegedl y provided by an ADF deserter, given in the

document produced as Annex60 to the Counter-Mem orial, and which Mr.Reichler particularly

highlighted in his first statement, is limited to the following: “In 1996 during Mobutu era before

Mpondwe attack, ADF received sever al weapons from Sudan Government with the help of Zaire

Government.” 21 That is the only reference at all, in this document which contains no less than

15 pages, to the support allegedly provided by th e Zairean authorities to the Ugandan rebels. And

it is on the faith of such imprecise and vague information, gathered in the circumstances that I have

18 just recalled, that Uganda presented its firs t counter-claim against the Congo. It might

appropriately be recalled at this stage that tho se particularly brief and vague statements are not

1RDRC, pp. 193-197, paras. 3.95-3.103; pp. 359-362, paras. 6.26-6.34.
20
AWODRC, p. 20, para. 1.25; p. 23, para. 1.30.
2CMU, Ann. 60, p. 6. - 11 -

contemporaneous with the facts they purport to relate. It is especially appropriate to recall that they

are not confirmed by any neutral or external source whatsoever. The outside witnesses to the

situation in Central Africa in the autumn of 1996 are far from confirming the picture painted by

Uganda of attacks plotted and perpetrated by Za ire against Uganda during that period. Those

witnesses report a quite different picture, as shown, for example, in this extract from a letter from

the United States Secretary of State, Mr. WarrenChristopher, to his Zairean counterpart in late

1996: “When Rwandan troops entered Goma and B ukavu in October and Ugandan troops entered

NorthKivu in November we categorically reco mmended their immediate withdrawal to avoid

escalation of the conflict.”2 Thus it is Uganda which is presented as the State attacking Zaire and

not the other way around. As we have already pointed out, it was in fact Zaire which complained

to the Security Council of an attack by Uganda and not the opposite. Once again, Uganda is

seeking to rewrite history.

17. Uganda’s first counter-claim , in respect of the period before PresidentKabila came to

power, thus proves to be totally unfounded. No serious evidence has been adduced by our

opponents in support of their allegations. The few documents that they have produced for that

purpose, in annexes to their written pleadings, do not appear to meet the minimum standards of

reliability expected of such evidence. Their cont ents are imprecise. And above all, they remain

unsubstantiated by any external or neutral source wh atsoever. It is for these reasons that, if the

Court were nevertheless to consider this first part of the claim admissible, the Democratic Republic

of the Congo would request it to find that claim unfounded.

As my colleague Professor OlivierCorten will now show you, the first Ugandan

counter-claim is equally devoid of foundation with respect to the following two periods, which

begin respectively with the coming to power of Presi dentKabila and with the start of the war in

19 August1998. I would thus ask you, Mr.President, if you would kindly give the floor to

Professor Corten. I would like to thank the Court for its attention.

The PRESIDENT: Thank you, Professor Klein. I now give the floor to Professor Corten.

22
RDRC, Ann. 101. - 12 -

Mr. CORTEN: Thank you, Mr. President.

T HE FIRST COUNTER -CLAIM IS WITHOUT FOUNDATION AS REGARDS THE TWO PERIODS

SUBSEQUENT TO THE COMING TO POWER OF P RESIDENT K ABILA : THAT PRECEDING
AND THAT FOLLOWING THE OUTBREAK OF WAR IN A UGUST 1998

1. As Professor Klein just mentioned, it now falls to me to deal with the two other periods

concerned by Uganda’s first counte r-claim. First, the period begi nning with President Kabila’s

assumption of power in May 1997, and ending with the commencement of Uganda’s armed attack

at the beginning of August 1998. Secondly, the period subsequent to early August 1998, that is to

say the period during which the DRC was in a situ ation of self-defence. In what follows, I shall

deal with each of these two periods in turn.

1. The DRC did not violate its international le gal obligations to Uganda between May1997
and August 1998

2. Out of concern not only to substantiate its counter-claim, but also to justify its invasion of

the Congo at the beginning of August 1998, Uganda has sought to demonstrate that it had been the

victim of a prior armed attack. The DRC obvious ly did not ignore these charges during the first

round of oral argument. It was thus with some astonishment that it heard counsel for Uganda claim

that the period preceding the month of August 1998 “was ignored completely by the representatives

of the DRC during their three days at the podium”23. In fact, the DRC laid stress on the fact that

Uganda had failed to provide evidence of Congolese involvement in any military attack prior to

the beginning of August24.

20 3. This absence of evidence has been challenged in relation both to the alleged links between

the Congo and Ugandan rebels and to the hypothesi s of a plot between the Congo and the Sudan.

Having listened attentively to our opponents, the DRC is obliged to note that this total lack of

evidence persists with regard to both issues.

23
CR 2005/6, 15 April 2005, p. 32, para. 48 (Mr. Reichler).
2CR 2005/3, pp. 32-33, paras. 10-13 (Mr. Corten). - 13 -

A. Uganda has not demonstrated the existen ce of military support by the DRC for Ugandan

rebel groups

4. Mr. President, Members of the Court, at this stage in the proceedings, Uganda has still not

demonstrated that, at the beginning of August1998, the Congo was guilty of any support for the

Ugandan rebel forces. A few days ago, counsel for Uganda reeled off a list of the various Ugandan

25
rebel groups that had been operating from Congolese territory . They also dwelt on various

actions by those groups, providing details of some of their military activities 26. The DRC has never

denied these facts, and it is therefore surprised at their being repeated so insistently. On the other

hand, it has always denied that it provided military support for Ugandan rebel groups or

participated in their military operations in any ma nner whatsoever. For the sake of clarity on this

issue, I should like to make five points.

1. No attack was carried out by the Congolese army on Ugandan territory

5. First point. No attack was carried out by the Congolese army on Ugandan territory. This

point is not disputed by Uganda. But it is very im portant to repeat it at this stage. No tank, no

weapon, no soldier of the Congolese armed for ces crossed the border between the Congo and

Uganda, whether in early August 1998 or in the preceding months. Officially, however, it was in

“response” that the Ugandan army, for its part, di d indeed penetrate Congolese territory by air and

by land, in order to invade and subsequently occupy almost one-third of that territory.

21 2. No attack was carried out by Ugandan rebel forces acting as de facto agents of the Congo

6. This brings me to my second point: no a ttack was carried out by Ugandan rebel forces

acting as de facto agents of the Congo.

7. Last Monday, one of Uganda’s counsel claimed that “the Government of the DRC

co-ordinated the military operations of the ADF against Uganda, through senior officers of the

Congolese armed forces, the FAC, who planned and supported cross-border attacks by the ADF in

27
and against Uganda” . He went on to cite not only the attacks at Kichwamba and Kasese, but also

those at Kanyamura, on 10June1998, at Banyangule on 26June1998 and at Kiburara, on

2CR 2005/7, pp. 9-11, paras. 3 and 4 (Mr. Brownlie).
26
Ibid., p. 11, para. 8 (Mr. Brownlie).
2Ibid., p. 20, para. 38 (Mr. Brownlie). - 14 -

28
5 July 1998 . The same counsel finally repeated that “[t]he attacks were carried out by groups

supported by the central Government of the Congo and acting as its agents” 29.

8. Mr.President, Members of the Court, these extremely serious accusations had been

30
dropped in Uganda’s most recent written pleadings and were not repeated in Uganda’s oral

arguments devoted specifically to the counter-claims 31. Be that as it may, what should be

emphasized is that these accusations are accompan ied by no references of any kind, other than to

the Ugandan Counter-Memorial. The Congo pointed out some time ago, in the context of its

Reply, that the only three documents produced by Uganda to prove that the Congolese authorities

were involved in the attack at Kichwamba made no mention of it having been directed or controlled

by agents of the DRC 32. In fact, a reading of these docume nts reveals only references to the ADF,

but no mention whatsoever of the Congolese authorities. As for the other four attacks cited by one

of Uganda’s counsel, no document, no testimony, no evidence was produced to support the

22 argument that the Congo directed or controlled the groups which carried out those attacks. No

proof, therefore, either in the oral or the written pleadings.

9. Mr.President, Uganda is not entitled to confine itself to unsubstantiated allegations,

ignoring the responses already made to them by the Congo in its written pleadings. As

counter-claimant, it must prove the existence of wr ongful acts attributable to the Congo. And if it

relies on the theory of de facto agents, it must comply with the very strict standards laid down by

Article 8 of the International Law Commission’s Draft Articles on State Responsibility of 2001. It

33
is thus not enough simply to assert that the Ugandan rebel groups are de facto agents of the DRC .

That must be proved, on the basis of evidence.

3. The Congo was not involved in any attack carried out against Uganda

10. This brings me to a third and equally decisive point; Uganda has totally failed to

demonstrate not only that the rebel groups were its de facto agents, but also that the Congo had

2CR 2005/7, p. 27, para. 66 (Mr. Brownlie).
29
Ibid., p. 27, para. 67 (Mr. Brownlie)
30
CR 2005/3, pp. 32-33, paras. 10-11 (Mr. Corten).
3CR 2005/10, paras. 29 and 70 (Mr. Suy).

3CMU, Anns. 82, 20, 91, criticized in RDRC, pp. 366-367, paras. 6.40-6.42.

3CR 2005/7, p. 20, para. 39 (Mr. Brownlie). - 15 -

planned, prepared or participated in a single a ttack in any manner whatsoever. As I have just

mentioned, the only three documents cited in th e Ugandan written pleadings do not even mention

the Congolese authorities, but only refer to Ug andan rebel elements. Here again, the

counter-claimant’s accusation is purely gratuitous.

11. It may also be asked whether Uganda is still really pursuing this charge. In his oral

argument last Friday, counsel for Uganda asserted, with reference to an alleged attack of

6August1998, to which I shall return shortly, that “[ t]his was the first time Congolese soldiers

operated jointly with Ugandan rebels and attacked Ugandan forces” 34. According to Uganda, then,

this was the first time. From this, it may be concluded that, according to Uganda itself, the Congo

was never involved in any attack carried out by Ugandan rebels prior to 6 August 1998.

23 4. The Congo never gave military support to Ugandan irregular forces

12. What, then, was the wrongful act allege dly committed by the Congo? According to

Uganda, the Congo violated international law by giving military support to Ugandan rebel groups.

General military support, unrelated to any attack, but military support all the same. Last Monday,

one of Uganda’s counsel hammered home the argument of “logistical support, weapons, training

35
and financial assistance directly from the Government of the Congo” .

13. However, and this brings me to my fourth point, the Congo has not provided such

support to Ugandan irregular forces. Once again, what evidence is supplied by Uganda in support

of these serious charges? No evidence was cited in its oral argument, and in particular in the

passage I have just cited. Nor did counsel for Uganda see fit to respond to the detailed critical

analysis of the few documents cited in Uganda’s Counter-Memorial and Rejoinder ⎯ developed by

the Congo in its Reply 36 and subsequently in its Add itional Observations on the Ugandan

37
counter-claims . Since Uganda has not responded to tho se criticisms, I would refer the Court to

the written pleadings for fuller particulars of these.

3CR 2005/6, p. 35, para. 53 (Mr. Reichler); emphasis added by the DRC.
35
CR 2005/7, p. 20, para. 39 (Mr. Brownlie).
36
RDRC, Chap. III, Sect. 1, and pp. 364-365, para. 6.36.
3AWODRC, pp. 38-42, paras. 1.53-1.60. - 16 -

14. Mr. President, Members of the Court, Uganda is unable to impute any action whatsoever

to the Congo that could be characterized as a wrongf ul act, whether in the form of an armed attack

or a less serious use of force. No action, then, but could it be blamed for a culpable omission due

to a lack of vigilance? This question I would answer with a fifth and final point: the Congo cannot

be accused of culpable passivity in the face of Ugandan irregular forces operating from its territory.

The Congo cannot be accused of culpable passivi ty in the face of the activities of Ugandan
irregular forces operating from its territory

15. As my colleague and friend Professor Kl ein has pointed out, Uganda acknowledges that

the Congo took numerous steps to combat the Ugandan rebels, again be tween May1997 and

24 August1998. The respondent State even places great emphasis on the sustained co-operation

between the two countries during that period, in an attempt to deduce therefrom a form of consent

to its presence on Congolese territory 38.

16. Uganda is free to make its own arguments, but it cannot escape some of the

consequences of that choice. If the Democrat ic Republic of the Congo was co-operating in the

fight against the rebels, it cannot at the same time be accused of supporting those same rebels.

17. I should like to return once again to Uga nda’s oral arguments in these proceedings. Last

Wednesday, one of Uganda’s counsel referred to “a period of entente between the two countries

(from May1997 to July1998)” 39. In the same vein, last Friday, one of our distinguished

adversaries, speaking on behalf of the Republic of Uganda, asserted that Uganda had rejected

Rwanda’s offer to join in the launching of the war in the Democratic Republic of the Congo at the

beginning of August 1998, because:

“It was neither Uganda’s policy, nor in her interest, to overthrow
PresidentKabila and his Government. At the time, Uganda’s only concern was
securing her borders, and until then PresidentKabila ha d been co-operating in that
40
effort.” (Emphasis added.)

18. Clearly, therefore, Uganda can no longer dispute the fact that, at the beginning of

August1998, the Democratic Republic of the Congo was still co-operating with it in the effort to

3CR 2005/8, pp. 10-12, paras. 12-19 (Mr. Brownlie); CR 2005/6, p. 11, para. 11 (Mr. Makubuya).
39
CR 2005/10, p. 25, para. 6 (Mr. Suy).
4CR 2005/6, p. 42, para. 67 (Mr. Reichler). - 17 -

ensure security along their common border. But in that case it can no longer claim that the

Democratic Republic of the Congo was in breach of a duty of vigilance or due diligence vis-à-vis
41
Uganda in relation to the security situation . It is impossible at one and the same time to speak of

a “period of entente between the two countries”, a state of co-operation which was accepted by the

President of the Congo, and to claim that the Congo, during that same period of entente, violated

the prohibition on the use of force to the detriment of Uganda.

19. Mr. President, Members of the Court, Uganda has been unable to prove any wrongful act

on the part of the Congo, whether involving an act (direction of or participation in an attack,

military support to Ugandan rebels), or an omission: lack of vigilance in the fight against those

25 rebels. The second part of the Ugandan counter-c laim must therefore be rejected, as must the

allegation of an alliance between the Democratic Republic and the Sudan, again over the period

from May 1997 to August 1998.

B. Uganda has failed to prove the existence of a conspiracy between the DRC and the Sudan
in the period prior to August 1998

20. Having been unable to show that the C ongo was involved in any way in the activities of

the Ugandan rebel groups, Uganda is obliged to acc use someone else, in this instance the State of

the Sudan. In order to implicate the Congo itself, however, it must then claim that the Sudan, the

Ugandan rebels and the Congo conc luded a sort of “diabolical pact” against it. The Court is

familiar with this scenario. Several representatives of Uganda have aired different variations of it

over the preceding days. I shall not, therefore, go back over each of the thrilling episodes of this

plot.

21. There is just one question for us here. What are the features of the scenario we are

offered for the critical period, the only one that interests us at this stage, the one preceding the start

of the war on 2August1998? What precisely are the wrongful acts, as at that date, of which the

Congo is accused? According to Uganda, the offence consisted of a meeting between the President

of the Congo and the President of the Sudan in May1998. During that month, an agreement

41
CR 2005/7, p. 30, para. 77 (Mr. Brownlie). - 18 -

42
designed to destabilize Uganda is said to have been concluded . It is this alliance which is

claimed to constitute the wrongful act attributable to the Congo.

22. In fact, however, neither the President’s visit, nor ⎯ still less ⎯ the plot, has ever been

proved by the Respondent. In their oral arguments, counsel for Uganda cited no document

attesting to its existence. In its written pleadings , Uganda produced a tota l of two documents that

are alleged to prove that that famous visit t ook place. The first is a speech delivered on

23March1999 to the United Nations General Asse mbly by the former Ugandan Minister for

43
Foreign Affairs, Mr.Mbabazi, today an a dvocate for Uganda in the present proceedings . The

26 second document is an address by PresidentMuseveni himself to the Ugandan Parliament, on

44
28 May 2000 . That is all. You have thus heard the only “evidence” ⎯ if it can be described as

such ⎯ presented by Uganda, consisting of speeches by its own political leaders. And this is

supposed to substantiate one of the most serious accusations made against the Congo. It was in

May1998 that this “diabolical alliance” was allegedly forged. And it was from that month

onwards that the hostile acts against Uganda were said to have intensified. Nevertheless, as we see,

not a single document is adduced to confirm this scenario.

23. A few days ago, some of Uganda’s counsel did ⎯ it is true ⎯ speak to you of Ugandan

intelligence reports from well-placed agents inside the Sudan or the Democratic Republic of the

Congo 45. The intelligence services are said to ha ve intercepted communications proving the

existence of the diabolical tripartite conspiracy between the Congo, the Sudan and Ugandan rebels.

A further episode in this scenario, worthy of the most gripping television spy series, occurred when

the Ambassador serving in Kinshasa abandoned doc uments containing damning evidence against

the Congo on the premises of his emba ssy (according to Uganda’s Rejoinder) ⎯ an Ambassador

who, incidentally, himself only recalled the existen ce of those documents several years later, more

46
precisely at the time when the Rejoinder was being drafted .

42CMU, pp. 30-31, para. 39; CR 2005/6, pp. 29-30, para s. 42-43 (Mr. Reichler); CR 2005/7, pp. 12-13, para. 13
(Mr. Brownlie).

43Ibid., Ann. 42.
44
Ibid., Ann. 66.
45CR 2005/6, pp. 29-30, para. 43; p. 37, para. 57 (Mr. Reichler).

46RU, p. 322, para. 695 and Ann. 87. - 19 -

24. Mr.President, Members of the Court, no report of an intercepted communication has

ever been produced by Uganda, whether in its Counter-Memorial, in its Rejoinder, or when new

documents were filed prior to the present oral proceedings. Since the filing of the Congo’s

Application in June1999, very nearly six years ago, Uganda has had ample time to gather and

submit evidence in support of this allegation. To this day it has failed to do so.

25. Finally, moreover, we are bound to ask wh ether Uganda does still maintain its charge

that the Democratic Republic of the Congo forged an aggressive alliance with the Sudan before the

27 outbreak of the war on 2August1998. Thus, in its oral presentation specifically relating to the

counter-claims, one of Uganda’s counsel asser ted that the alliance between the Congo, the

Ugandan rebels and the Sudan had been established “ after [the] period... from May1997 to

July 1998” 47⎯ that is to say, after July 1998. A contrario, this amounts to an admission that the

alliance did not exist during that period, that is to say, before August 1998, which is the only period

under consideration at this stage.

26. In conclusion, Mr. President, one fact must be noted. At the beginning of August 1998,

there was absolutely no evidence to support the claim that the Congo had committed a wrongful act

against Uganda by entering into an aggr essive alliance with the Sudan. The essential ⎯ if not the

main ⎯ component of the Ugandan argument is not subs tantiated, at this stage of the proceedings,

by any evidence, however flimsy. Between Ma y 1997 and August 1998, the Democratic Republic

of the Congo never violated Uganda’s rights, whether by directly carrying out an attack, by

supporting rebel forces or by entering into an aggressive alliance with Sudan. The same conclusion

can be drawn from an examination of the pe riod following the commencement of the Ugandan

aggression. This brings me to the second part of my presentation this morning.

II. The DRC did not violate its international legal obligations to
Uganda after August 1998

27. Mr. President, Members of the Court, the pe riod we shall now consider is very different

from the two preceding ones. From August 1998 the Democratic Republic of the Congo was in a

situation of self-defence in the wake of an armed attack perpetrated by Uganda. Thus the Congo is

47
CR 2005/10, 20 April 2005, p. 25, para. 6 (Mr. Suy); emphasis added. - 20 -

in any event entitled to plead self-defence to re but the Ugandan counter-claim. But before

developing this point, I should like simply to re mind the Court that Uganda has been no more able

to adduce evidence of a wrongful act against it by the Congo than it was for the preceding ones.

28 A. In reality, Uganda has still been unable to impute any wrongful act to the Congo

28. In reality, Uganda’s stra tegy still seems to be the same: making an assertion without

providing a shred of evidence to support it. That is our opponents’ constant practice, including

with regard to the most decisive aspects of their argument –– as I shall now show by means of three

illustrations.

1. The total lack of evidence that Ugandan reb els were incorporated into the FAC (Congolese

Armed Forces)

29. During the first round of argument, counsel for Uganda stated no fewer than eight times

that at the beginning of August1998 Ugandan rebe l forces were incorporated into the Congolese

48
Armed Forces (FAC) . This claim is obviously of decisive importance, since it enables Uganda to

impute to the Congo all subsequent acts by these rebe l forces, who are considered to have become

de facto agents, as it were, of the Democratic Republic of the Congo.

30. However, none of Uganda’s counsel saw fit to cite any document capable of

substantiating these claims. It is sufficient to review carefully the eight passages from their oral

argument to which I have just referred (the references will of course be indicated in the written text

of this presentation). Absolutely nothing will be found there, Mr.President, no reference to a

document of any kind. This claim as to the inco rporation of Ugandan rebels into the Congolese

army is thus just a first illustration of the method practised by Uganda.

2. The total lack of evidence of an attack on 6 or 7 August against the UPDF

31. I now come to a second example. One of Uganda’s counsel laid stress last week on an

attack said to have been carried out against UPDF troops at the beginning of August. In his words:

“[O]n 6August1998, the Ugandan forces near Beni were attacked by a combined force of ADF

48
CR 2005/6, p. 11, para. 12, p. 35, para. 53 (Mr.Reichler); CR2005/7, p.9, para.3, p.12, para.13, pp.19-20,
para. 35, p. 28, para. 68 (Mr. Brownlie); CR 2005/10, p. 25, para. 6 and p. 28, para. 14. (Mr. Suy). - 21 -

49
and FAC soldiers loyal to President Kabila.” This attack is claimed to have been a major turning

29 point in the unfolding events, since, again accord ing to the Ugandan scenario, it was in response to

this attack that the UPDF, after fighting and defea ting the enemy, rapidly took control of Beni and

subsequently of Bunia 50.

32. Mr.President, Members of the Court, in that oral statement Uganda for the first time

clearly identified an armed attack imputable to th e Congo, an attack said to have justified its

military intervention. However, the attack in question was barely mentioned in the

Counter-Memorial, which moreover gave its date as 7, not 6August1998 51. Despite the

importance attached to it today, this same att ack was not mentioned even once in the Ugandan

Rejoinder. A second counsel for Uganda, for his part, referred to it la
st Monday, but gave the date

52
not as 6 August, like his predecessor, but as 7 August 1998 . Counsel for Uganda will doubtless

manage to agree their position as to the date of this alleged attack in the latter part of these

proceedings. However, it would be helpful if they would finally cite a doc ument, or any piece of

evidence, capable of substantiating their allegations. Neither the Counter-Memorial nor the first or

second round of Uganda’s oral presentation, to which I have just referred, contains any evidentiary

material. Nor is this famous attack even me ntioned in the witness statements to the Porter

Commission, which give an account of the early stages in the Ugandan military operation in the

Congo. Once again, therefore, the decisive elemen t of the counter-claimant’s argument rests solely

on unilateral assertions, which it asks the Court to ta ke as established fact s without any further

enquiry.

3. The complete lack of evidence of a conspiracy with the Sudan

33. Now for the third example: the theory of a diabolical conspiracy involving the

Democratic Republic of Congo, the Sudan and Uganda n rebels, this time for the period that began

in August1998, not for the preceding period ⎯ I already dealt with that just now. One of

Uganda’s counsel has explained that this conspiracy , allegedly hatched, as we have seen, as early

49CR 2005/6, p. 35, para. 53 (Mr. Reichler).
50
Ibid.
51
CMU, p. 37, para. 47.
52CR 2005/7, p. 43, para. 24 (Mr. Mbabazi). - 22 -

as May1998, was evidenced by other visits to the Sudan, specifically on 24 August and

53
30 18 September 1998 . This time the counter-claimant cites five documents in support of its claims,

so these must be examined.

34. The first of these is simply a speech by the Ugandan Minister for Foreign Affairs, today

54
appearing as counsel for Uganda, that I cited just now . Three others are no more than documents

prepared by the Ugandan authorities them selves regarding the situation in Congo 55. These are not

witness statements, they are mere reports. As to the fifth, this is the much-vaunted document of

56
11 September 1998, which has been described as “irrefutable proof” by Uganda and can be found

in your judges’ folder at tab5 57. This document, prepared unilaterally by the UPDF high

58
command, has been cited three times by Ugandan counsel , and I have no wish to do so in my

turn. I note, however, that one of the aims of the decision to keep troops in Congolese territory was

“to deny the Sudan the opportunity to use territory of the DRC to destabilize Uganda” 59. “To deny

the Sudan the opportunity to use”, not to put an e nd to the actual use of Congolese territory by the

Sudan, whether by way of attacks by the Sudan ese army or even by supporting Ugandan rebel

groups. So much for Uganda’s much-vaunted evidence.

35. This, therefore, is the context in which Uganda’s claims that Sudanese forces had been

deployed on a massive scale in Congolese territory during the month of August and, with a view to

destabilizing Uganda, had shipped in thousands of Ugandan rebels, a Sudanese military aircraft

60
having even attacked the UPDF in Bunia directly, on 26 August 1998 . Once again, not only is

this account unsupported by any solid evidence; it is even impliedly contradicted by Uganda’s

31 “irrefutable proof”, to which I referred a short time ago, which speaks of denying the Sudan the

“opportunity” to use the territory of the Congo.

53CR 2005/7, p. 13, para. 16 (Mr. Brownlie); p. 37, para. 57 (Mr. Reichler).

54CMU, Ann. 48.
55
Ibid., Anns. 31, 42 and 90.
56
RU, p. 67, para. 155; CR 2005/2, pp. 26-27, paras. 30-31 (Maître Tshibangu Kalala).
57CMU, Ann. 27.

58CR 2005/6, pp. 38-39, para. 60 (Mr.Re ichler); CR 2005/7, pp. 14-15, para . 18 (Mr.Brownlie); CR 2005/7,
p. 46, para. 31 (Mr. Mbabazi).

59CMU, Ann. 27; emphasis added.
60
CMU, pp. 40 et seq.; CR 2005/6, p. 38, para. 59 (Mr. Reichler). - 23 -

36. But the scenario does not stop there. Still concerned to render credible the claim of a

Sudan-Congo conspiracy, Uganda then asserts that it defeated the Sudanese army at Businga in

61
February 1999, and that the Sudanese forces then retreated as far as Gbadolite . This was the city

in which UPDF forces were said to have engaged forces led by a senior Sudanese officer for two

months, between May and July 1999 6. The “battle at Gbadolite” is described as a “major

63
encounter”, giving rise to “fierce fighting” , after which the Sudanese army, finally defeated by

the glorious UPDF, left the Congo for good 6.

37. Mr. President, at this stage I should like to quote again the words of one of Uganda’s

counsel about proof of the presence of an army cam paigning in the territory of another State.

According to that honourable gentleman, if Ugandan soldiers had been present in the western part

of the Congo at the beginning of August 1998,

“they surely would have left some telltal e sign: dead or wounded Ugandan soldiers;
used or spent cartridges or artillery she lls; field equipment; mess kits; empty or
discarded food tins; or the myriad other detritus of battle” . 65

All that is required to assess the weakness of this proposition is to transpose it to the account of the

Gbadolite campaign. Because Uganda has still been unable to adduce the slightest evidence of the

presence of a single Sudanese soldier, alive or dead , captured or not, of a single Sudanese aircraft

or of a single Sudanese army tank in the Congo, and this after allegedly joining battle with the

Sudan for weeks on end.

32 38. The scenario of heroic battles fought by the UPDF against a Sudanese army in the Congo

is simply not credible. It is interesting in th is connection to read the account of the battle of

Gbadolite by one of its principal protagonists, th e leader of the Congo Liberation Movement. In a

book published in 2001 and cited by both Parties in the present case, the leader of the MLC, which

fought side by side with the UPDF, describes th e principal stages in the battle without ever

66
mentioning a single clash with Sudanese forces . In reality the UPDF took Gbadolite by attacking

6CMU, p. 43, para. 54.

6Ibid., p. 50, para. 63.
63
Ibid., p. 50, paras. 63 and 64.
64
CR 2005/6, p. 54, para. 98 (Mr. Reichler).
6Ibid., p. 46, para. 77 (Mr. Reichler).

6Jean-Pierre Bemba, “Le choix de la liberté”, Gbadolite, ed. Venus, 2001, pp. 41-46. - 24 -

the Congolese forces that were defending the city. It never fought against the Sudanese army in the

Congo.

39. Mr. President, Members of the Court, the Democratic Republic of the Congo fervently

hopes that from now on Uganda will proceed otherwise than by mere assertion. It is not enough to

repeat that Congo gave its territory over to hostile forces, whether these were Ugandan rebels or the

army of the Sudan. It would still be necessary to prove it. Moreover, it would still be necessary,

even assuming that evidence could be adduced to prove it, to show that the Democratic Republic of

the Congo was not, at the beginning of August 1998, in a situation of self-defence. That brings me

to the last part of my oral argument for this morning.

Mr. President, if you think fit, perhaps there could be a short break at this stage.

The PRESIDENT: You may continue, please.

Mr. CORTEN: Thank you, Mr. President.

B. In law, Uganda has still been unable to show that the Congo was not in a position of
self-defence at the beginning of August 1998

40. It is clear that, if the Democratic Republic of the Congo was in a position of self-defence

at the beginning of August 1998, it had the right to retaliate by fighting the Ugandan army. In so

far as it is directed at the period beginning at th at time, the Ugandan counter-claim must therefore

in any event be rejected.

33 41. From the very first days of August 1998, the DRC was the victim of an armed attack by

Uganda. This attack developed in several phases: involvement in the launch of the armed

rebellion on 2 August, participati on in the Kitona airborne operation on 4 August, and the capture

of several localities in eastern Congo by the UPDF as from 6 August. At this stage I should like to

go back over two of these: the Ugandan military offensive in eastern Congo and UPDF

participation in the Kitona airborne operation. - 25 -

1. The UPDF did indeed launch its offensive in eastern Congo on 6 August 1998

42. First of all, it is important to show th at the UPDF did launch its offensive in eastern

Congo on 6 August 1998, so that, as from that date, there can no longer be any doubt that the

Democratic Republic of the Congo was in a position of self-defence.

43. In its Counter-Memorial Uganda claimed that new troops were sent into Congolese

territory only in mid-September 1998, pursuant to a decision by its army high command on

September 11 67. This position was maintained in the Re joinder, despite criticism on this point in

the Congo Reply. It is expressly affirmed on two occasions in that pleading that “Uganda did not

send troops into the DRC in August 1998” 6. In the words of the Rejoinder, “there was no border

69
crossing by Ugandan troops at Aru or at any other location” . Or again: “Uganda initiated no

military action for more than six weeks ⎯ until the middle of September” 70.

44. This is what Uganda’s position was in its written pleadings: no sending of troops, no

crossing of the frontier, no military before mid-September 1998.

45. However, that position is no longer tenabl e today. In its oral argument the Congo has

cited several statements, not only by Ugandan soldiers but also by President Museveni himself, that

34 confirm the Congolese version of the facts: the Ugandan army did indeed enter the Congo right at

71
the beginning of August, not some six weeks later . As a senior Ugandan official stated, in reply

to a question on when UPDF forces began to be sen t into the Congo, “it was at the beginning of

August” 72. UPDF penetration into the Congo was mainly along the Aru-Watsa line, as you can see

on the map projected behind me. This, then, is th e context in which the cities of Beni, Bunia,

Watsa, and also Kisangani, all of which have popu lations of several thousand, were captured and

then occupied by the Ugandan army, after sometimes bloody fighting against Congolese forces,

between 6 August and 1 September 1998.

46. It is doubtless the clarity of the testimony by its own soldiers that has led to Uganda’s

change of position in its oral pleadings. Uga nda now no longer denies having sent its troops into

67CMU, pp. 41-42, para. 53.

68RU, p. 66, para. 152.
69
Ibid., p. 67, para. 154.
70
Ibid., p. 26, para. 63.
71CR 2005/2, pp. 28-33, paras. 34-48; p. 39, para. 68 (Maître Kalala).

72CW/01/02 23/07/01, p. 38. - 26 -

Congolese territory in the first half of August 1998. According to the new scenario recounted to us

by one of Uganda’s counsel: “On 13 August, after the battle of Bunia, Uganda modestly reinforced

73
the troops that were there” . And he continues: “On 10 August . . . a Ugandan battalion moved to

the border post at Aru, and then on 14 August, the da y after the events at Bunia, received orders to

redeploy to Watsa.” 74 The same counsel adds that this only confirms what Uganda has been saying

75
all along . In reality, as you will have understood, this new scenario completely contradicts the

former one, which in fact consisted of a denial of any military action and any frontier crossing in

76
August, “at Aru or at any other location” .

47. Uganda will doubtless be able to explain why it consistently denied, until a few days ago,

that it had sent troops and engage d in battle in the Democratic Republic of the Congo at the

beginning of August. Today Uganda admits having sent troops to Congo as early as 13 August and

even, by sending a battalion into the locality of Aru, which is certainly in Congo, on

35 10 August 1998. Thus Uganda can no longer claim that the invasion began after that date.

48. Mr. President, Members of the Court, as I have already pointed out to you, on three

occasions counsel for Uganda have cited a document prepared by the UPDF high command which

77
states that the UPDF decided “to maintain” its troops in the Congo . To maintain its troops in the

Congo, not to send new troops to the Congo on 11 September 1998. This document would thus

rather tend to confirm th at Ugandan troops had already been sent to the Congo. This was pointed

out by Congo on the first day of its oral pleadings 78, but Uganda seems not to have heard. The

Democratic Republic of the Congo hopes that this will be a case of “second time lucky”, and that

our opponents will no longer come to the Bar of the Court to cite this “irrefutable proof” without

seeking to answer the objections that I have just made.

49. Mr. President, Members of the Court, Ug anda thus now admits having sent additional

troops to the Congo on 10 August. At the same time, however, it minimizes the scope of this

7CR 2005/6, pp. 35-36, para. 55 (Mr. Reichler).
74
Ibid., p. 36, para. 55.
75
Ibid.
7“[T]here was no border crossing by Ugandan troops at Ar u or at any other location”, RU, p. 67, para. 154; see

also CR 2005/7, p. 43, para. 24 (Mr. Mbabazi).
7CMU, Ann. 27.

7CR 2005/2, p. 26-27, para. 30-31 (Maître Kalala). - 27 -

action by using euphemisms such as “modest reinfo rcement” or “redeployment” of these troops, or

again “securing” of Congolese localities.

79
50. Obviously such language can deceive no one. As the Congo has already pointed out ,

GeneralKazini, who led the UPDF operation called “Safe Haven” in the Congo, has stated quite

unambiguously that: “It was in the month of August . . . “Safe Haven” started after the capture of

Beni, that was on 7 August 1998.” 80 You will find the relevant excerpt in your judges’ folder at

81
tab 11 . Hence, according to the officer who led it, the date on which the operation began is not

11September, nor yet 13 August, nor even 10 Augu st. It is 7 August 1998. And this operation

36 does not merely amount to a “modest reinforcemen t” or a “redeployment” of troops, or peaceful

movements strictly limited to making the frontier secure. Mr. President, Members of the Court, I

beg you to excuse Congo for having to repeat it, but during the four days of pleadings available to

it Uganda did not think it worth commenting on one of the most important excerpts from the

testimony gathered by the Porter Commission. You will find this in your judges’ folder, at

82
tab 17 . This is still General Kazini’s testimony. I shall quote it in French this time; perhaps our

opponents will take better notice:

«Lead Counsel: pouvez-vous expliquer brièvement à la commission en quoi
consistait l’«opération Safe Haven» ?

Général Kazin:i «Safe Haven». C’était maintenant une opération…
L’opération a reçu le nom de code de «Safe Haven» parce qu’il était nécessaire de

changer le plan opérationnel. Souvenez-vous, l’ancien plan était d’opérer
conjointement, les deux gouvernements, pour combattre les rebelles ougandais le long
de la frontière; l’UPDF et les FAC. Mais il y a alors eu une rébellion, et les rebelles

congolais prenaient le contrôle de ces zones. Alors nous avons décidé de lancer une
offensive conjointe avec les rebelles, une opération spéciale que nous avons désigné
sous le nom de code de Safe Haven.»

[“Lead Counsel: So you can briefly explain to the commission what “operation
Safe Haven” was about.

Brigadier J. Kazini: ‘Safe Haven’. This was now an operation... The
operation was code-named ‘Safe Haven’ becau se there was a need to change in the

79
Ibid., p. 30, para. 40.
80
Ibid.
81Documents submitted by the Democratic Republic of the Congo for the purposes of the oral proceedings,
January 2005, document 2, Report of the hearings of th e Ugandan Commission of inquiry (Porter Commission)
(excerpts) (Judicial Commission of Inquiry into allegations of illegal exploitation of natural resources and other forms of

wealth in the Democratic Republic of the Congo 2001, Transcript, November 2002).
82Ibid. - 28 -

operational plan. Remember, the earliest plan was to jointly ⎯ both governments ⎯
to jointly deal with the rebels along the bor der, that was now the UPDF and the FAC.
But now there was a mutiny, the rebels were taking control of those areas. So we

decided to launch an offens83e together with the rebels, a special operation we
code-named Safe Haven. ]

General Kazini states that it was on 7 A ugust 1998 that the UPDF launched a joint offensive with

Congolese rebels. An offensive ⎯ and a joint offensive with Congolese rebels, not a “modest

reinforcement of troops”, a “redeployment” or a simple “securing” of the frontier. Uganda’s

counsel can certainly no longer remain silent about this testimony. They must either attack its

credibility, despite the fact that it comes from General Kazini, the commander-in-chief of the

operation, or they must once again change their scenario and admit that it was not on 11 September

or on 13 or 10 August that their military offensive against Congo began, but on 7 August.

51. This issue is crucial, Mr. President, Me mbers of the Court. This is yet another

confirmation of this date as the start of the i nvasion of the eastern Congo. You have before you a

37 document produced to the Porter Commission d escribing the various stages in operation “Safe

Haven”. This document gives the dates on whic h Congolese localities were captured. It is

84
projected behind me, but you can find it in your judges’ folder at tab 40 . It becomes apparent on

reading this document that the capture of Congolese towns and cities began on 7August and

continued thereafter, in particular with the a rrival of the 3rd Ugandan battalion in Kisangani,

several hundred kilometres from the Ugandan fr ontier not along it, on 1 September. No

11September turning point can be discerned in this document: the captures are all shown as

different stages in one and the same operation, ope ration “Safe Haven”, to repeat the title of this

document. This operation was also funded on a mo nthly basis, with effect from August 1998, not

September. Another document, which you will also find in your judges’ folder, at tab40, clearly

85
confirms this . It is a list of annexes to the Porter Commission report. I draw your attention to

numbers 47 and 48 of these, the contents of whic h are projected behind me. As you will see, the

list refers here to two other doc uments giving pay details for so ldiers participating in operation

83
CW/01/03 24/07/01, p. 129; emphasis added.
8Documents submitted by the Democratic Republic of the Congo for the purposes of the oral proceedings,
January 2005, document 7, Porter Commission Exhibits, JK/01/125 (excerpts).

8Judicial Commission of Inquiry into allegations of illegal exploitation of natural resources and other forms of
wealth in the Democratic Republic of the Congo (May 2001-November 2002), Final Report, November 2002, AnnexI.
Exhibits, pp. 217, 47 and 48. - 29 -

“Safe Haven”. These documents also contradict the argument of an 11September turning point,

which our opponents stubbornly defend. As you will see, for the year 1998 they refer to a

continuous period extending from August to Decembe r. Once again, no 11September turning

point.

52. Mr. President, Members of the Court, be fore the month of August 1998 some Ugandan

soldiers were conducting limited counter-insurgency operations on the Congolese side of the

Ruwenzori Mountains. Before that date, however, Ugandan soldiers had never besieged or taken

towns or cities in the Democratic Republic of the Congo. It was effectively the capture of Beni, a

town with a population of over 10,000, that marked the beginning of the military intervention in the

38 eastern Congo. Let us listen to General Kazini agai n. The excerpt is in your judges’ folder, at

86
tab 17 :

“Justice Beko: You said Beni was captured when?

Brigadier J. Kazini: On 8 August 1998.

Justice Beko: 8 August 1998.

Brigadier J. Kazini: So before that it was not … “Operation Safe Haven” had
not started. It was the normal UPDF operations ⎯ counter-insurgency operations in

the Ruwenzoris, before that date of 7 August 1998 . . .

Justice Beko: And what happened on the 7 August?

Brigadier J. Kazini: On 7 August that was fighting (when it took place) and our
troops occupied Beni.” 87

If there is a turning point it is not on 11 September, but on 6 or 7 August 1998 in the eastern

Congo.

53. UPDF troops thus fought Congolese forces, UPDF troops occupied Congolese towns and

cities, UPDF troops penetrated into Congolese territory as from the beginning of August 1998. At

that point in time, therefore, the Democratic Republic of the Congo was in a situation of

self-defence. After that date, therefore, the accusat ion of its use of force against Uganda can no

8Documents submitted by the Democratic Republic of the Congo for the purposes of the oral proceedings,
January 2005, document 2, Report of the hearings of the Ugandan Commission of Inquiry (Porter Commission)

(excerpts) (Judicial Commission of Inquiry into allegations of illegal exploitation of natural resources and other forms of
wealth in the Democratic Republic of the Congo 2001, Transcript, November 2002), CW/01/03, 24/07/01, p. 129.
8CW/01/03 24/07/01, p. 129. - 30 -

longer be maintained ⎯ a conclusion strengthened by the fact that on 4 August Uganda was

already involved in the Kitona operation, in the far west of the Congo.

39 2. Uganda did indeed participate in the Kitona airborne operation on 4 August 1998

54. Uganda’s participation in the Kitona operation on 4 August 1998 is established by

various concordant sources.

88
55. A few days ago counsel for Uganda disputed this fact , rehearsing all the arguments in

89
the Ugandan Rejoinder . Unfortunately he did not see fit to comment on the specific replies to

these criticisms in Congo’s Additional Written Observations on the Counter-Claims 90. Rather than

repeating these, I should like to revisit briefly two points.

56. Firstly, as regards direct sources, the Ug andan army’s participation in the operation has

been confirmed by no less than five separate items of testimony:

⎯ the first is that of a civil airline pilot, who testified to the presence of a UPDF commander in

91
Goma at the time the operation was launched ;

⎯ the second is that of another pilot, who was forc ed to fly a plane involved in the operation, and

92
who positively testified to the presence of Ugandan soldiers on board ;

⎯ the third is that of the Kitona base commander, who declares that he saw Ugandan soldiers

while on duty at the time of these events 93;

⎯ the fourth is that of a former Congolese rebel, who also testified to participation by Ugandan

94
soldiers in the operation . This witness also saw a Ugandan tank in Kitona, the same one that

was later recovered by the Congolese armed forces, as Congo has already explained 95;

96
⎯ the fifth comes from a Ugandan soldier later taken prisoner by the Congolese armed forces .

88CR 2005/6, p. 42, para. 67 (Mr. Reichler); CR 2005/7, p. 44, para. 25 (Mr. Mbabazi).

89RU, pp. 54-63, paras. 120-144.
90
Additional Observations by Congo, pp. 50-64, paras. 1.79-1.97.
91
RDRC, Ann. 59, testimony of Mr. José Dubier.
92
Ibid., Ann. 62, testimony of Mr. Viala Mbeang Ilwa.
93Ibid., Ann. 61, testimony of Commander Mpele Mpele.

94Ibid., Ann. 58, testimony of Mr. Issa Kisaka Kakule.

95CR 2005/2, p. 22, para. 15 (Maître Kalala).
96
RDRC, Ann. 63, testimony of Mr. Salim Byaruhanga. - 31 -

40 57. Mr. President, Members of the Court, Ugandan soldiers were seen in Goma, at the time

of takeoff; they were seen in flight, on board the aircraft that were involved in the operation; they

were seen in Kitona, on landing. And these five witnesses are positive: contrary to what one of

Uganda’s counsel ⎯ who incidentally has addressed only two of them ⎯ seems to be claiming,

there is nothing to show that these witnesses coul d have mistaken Rwandan soldiers or Congolese

mutineers for Ugandan soldiers 97. For such witnesses, whether th ey be captains of aircraft or

professional soldiers, differences in uniforms or equipment are certainly sufficient criteria. So

much for the direct sources.

58. Journalistic sources are the second element to which I wish to return; the Congo has

invoked these only by way of confirmation, in accordance with interna tional jurisprudence 98.

Contrary to what Uganda claims, these ar e accounts based on varied sources, Congolese and

international, but also Ugandan. It should be recalled in this connection that on 14 September 1998

PaulSsemogerere, the leader of the Democratic Party, the main Ugandan opposition party, stated

that there was “overwhelming evidence” that Ug andan troops had been flown to western Congo

and that UPDF soldiers had been killed or taken prisoner in Matadi and Kinshasa 99. What is more,

these statements are not seriously contested in Uganda . All that is required to be convinced is to

read the version of the facts given by the newspaper New Vision: “Uganda airlifted its

100
battle-hardened 3rd Battalion to Kitona and Matadi” . The wording is clear, and Ugandan

participation in the Kitona action is not presente d as a scoop or a sensational revelation but rather

as an established and undisputed fact. It should be emphasized that New Vision is not only the

biggest Ugandan daily but also a semi-offici al newspaper, very close to the Ugandan

101
Government .

59. Finally the method used by Uganda to cast doubt on the probative value of the items of

evidence put forward by the Congo to testify to UPDF participation in the Kitona operation is to

41 dissociate them from each other in order to diminish their scope. In reality there is a convergent

97CR 2005/6, pp. 43-47, paras. 71-78, in particular para. 73 (Mr. Reichler).

98RDRC, pp. 82-86, paras. 2.41-2.45.
99
Press Statement, “Uganda’s Involvement in the DRC”, 14 September 1998, RDRC, Ann. 66.
100
Ibid., Ann. 12.
10Ibid., Ann. 1. - 32 -

body of varied and concordant evidence, demonstrating Uganda’s involvement in the Kitona

operation on 4 August 1998. If this involvement is combined with operation “Safe Haven”, which

began at the same time in the east of the country, there can no longer be any doubt that the

Democratic Republic of the Congo was then in a si tuation of self-defence. Even assuming that the

Ugandan charges were established in fact ⎯ quod non ⎯, they must fail in law.

60. Mr. President, Members of the Court, by way of conclusion I will now recapitulate the

Congo’s answer to Uganda’s first counter-claim. This claim relates to three fundamentally distinct

periods, which have to be examined separately.

As regards the period of Marshal Mobutu’s presidency, Uganda, by allying itself with

Laurent-DésiréKabila’s rebel movement and su bsequently with his Government, renounced any

responsibility claim against the Congo. This part of the claim is inadmissible. In the alternative,

this claim is without foundation, because it is not substantiated by any evidence.

As regards the period beginning after Preside nt Kabila came to power and ending at the

beginning of August 1998 with the launch of Uganda’s armed attack, the Ugandan claim is without

foundation. There is no evidence to show that any wrongful act was committed by the Congolese

authorities, in collaboration either with Uga ndan rebels or with the Sudanese governmental

authorities.

Lastly, the same conclusion is good for the thir d period, beginning with the Ugandan attack.

During this period the Democratic Republic of th e Congo was in a situation of self-defence, which

precludes in any event a claim that it had recourse to force against Uganda.

61. Mr. President, Members of the Court, I thank you for your kind attention and ask you,

after the break I presume, to give the floor to Professor Salmon, who will take up Congo’s

argument regarding Uganda’s second counter-claim.

The PRESIDENT: Thank you, Professor Corten.
42

It is time to have a break of ten minutes, after which the hearings will resume and

Professor Salmon will be given the floor.

The Court adjourned from 11.40 to 11.50 a.m. - 33 -

The PRESIDENT: Please be seated. Professor Salmon, you have the floor.

Mr. SALMON: Mr. President, Members of the Court,

U GANDA ’S SECOND COUNTER -CLAIM

It is my job to open the presentation of th e response by the Democratic Republic of the

Congo to Uganda’s second counter-claim.

Introduction

1. That claim, as appearing in Uganda’s C ounter-Memorial, was worded as follows: “the

attack on the Ugandan Embassy and the inhumane treatment of Ugandan diplomatic personnel and
102
other Ugandan nationals” . The four paragraphs containing the claims proper were found in

paragraphs 405 to 408. It is essential for us to rer ead them in order fully to grasp their true nature,

103
which the DRC is allegedly misrepresenting :

“405. The inhumane treatment and threats to the security and freedom of
nationals of Uganda, detaile d in paragraphs397 to 399 above, constitute a series of
breaches of the international minimum standa rd relating to the treatment of foreign

nationals lawfully on State territory, which standard forms a part of customary or
general international law.”

We do indeed read that this concerns “inhumane treatment and threats to the security and freedom

of nationals of Uganda”, constituting “breaches of the international minimum standard relating to

the treatment of foreign nationals”, which forms a part of “customary or general international law”.

43 “406. The confiscations of privately owned cars and other items of property
belonging to Ugandan nationals also constitute breaches of the international minimum

standard.”

We do indeed read that this concerns “confiscations of . . . privately owned . . . property belonging

to Ugandan nationals”, this time constituting “breaches of the international minimum standard”.

“407. The inhumane treatment described in paragraphs397 to 399 above also,
and in the alternative, constitutes breaches of the standard of general international law

based upon universally recognised standards of human rights concerning the security
of the human person and the peaceful possession, use and enjoyment of property.”

102
CMU, p. 224 and explanation, paras. 397-408.
10CR 2005/10, p. 37, para. 40 (Mr. Suy). - 34 -

We do indeed read that the inhumane treatment in question is now said to constitute violations of

the recognized standards of human rights concerning the security of the human person and the

peaceful possession, use and enjoyment of private property.

“408. In respect of the seizure of the Embassy of the Republic of Uganda, the

Official Residence of the Ambassador, and official cars of the mission, these actions
constitute an unlawful expropriation of the public property of the Republic of Uganda.
The absence of any provision of compensati on constitutes an additional element of

illegality.”

Once again, the wording sp eaks volumes. What is in question here is the seizure of State

property ⎯ the Embassy of the Republic of Uganda, the official residence of the Ambassador and

official cars of the mission ⎯ constituting an “unlawful expropriation of the public property of the

Republic of Uganda” without compensation.

2. The Court will note that the first three claims relate exclusively to the treatment of foreign

nationals. In the fourth claim, Uganda alleges the confiscation of public property of Uganda. It

would have been possible to invoke the 1961Vi enna Convention on Dipl omatic Relations in

connection with this last claim. Indeed, the Co nvention is referred to in a letter quoted in the

statement of facts which goes before, but that reference to it is in no way transformed into a formal

legal claim. In its claims Uganda did not request the Court to declare that the Convention had been

violated. It was careful to refrain from doing so; we will see why shortly. It confines itself to

presenting a claim for expropriation of State property without compensation.

3. The Court will also have noted in passing th at, contrary to what my old friend EricSuy

said the day before yesterday, the D RC is not dwelling “quite erroneously” 104on “seizure” or

44 “expropriation”. A claim for compensation for this “confiscation” or “unlawful expropriation” was

indeed made by Uganda; moreover, Uganda placed a figure of more than $6million on it 10. If

106
Eric Suy feels that we are trying to divert the Court by leading it up the “garden path” , that must

be because, as boy scouts, we learned different rules of path-finding.

10CR 2005/10, p. 38, para. 42 (Mr. Suy).
105
CMU, para. 397 and WOU, p. 17, para. 30 and p. 18, para. 62.
10CR 2005/10, p. 38, para. 42 (Mr. Suy). - 35 -

4. After its second counter-claim was admitt ed by the Court, the Republic of Uganda

reformulated it in the Rejoinder, this time re lying on a violation of the 1961 Vienna Convention on

Diplomatic Relations.

The Democratic Republic of the Congo accordingly contends:

(a) first, that the claim (as reformulated in the Re joinder) is inadmissible to the extent that it is

founded on a violation of the Vienna Convent ion on Diplomatic Relations, for lack of

connection with the principal claim (I shall address this point in the first part of my

presentation);

(b) secondly, the claim based on inhumane treatment of Ugandan nationals cannot be admitted

either, because the requirements for admissibility of diplomatic protection are not satisfied (I

shall address this point in the second part of my presentation);

(c) thirdly, assuming the claims to be admissible, the claims deriving from this second

counter-claim are without merit, as Maître Tshibangu Kalala will later show.

I. First, the claim is inadmissible to the extent that it is founded on a violation of the
Vienna Convention on Diplomatic Relations, for lack of connection with
the principal claim

5. In its Written Observations of June2001 on the claims presented as counter-claims by

Uganda, the DRC maintained that the claims concerning the alleged attacks on Ugandan diplomatic

properties and personnel in Kinshasa did not meet the direct connection requirement laid down by

Article 80, paragraph 1, of the Rules of Court 10, which reads as follows: “1. A counter-claim may

be presented provided that it is directly connected with the subject-matter of the claim of the other

party and that it comes within the jurisdiction of the Court.”

45 6. Responding to this objection, Uganda asserted that the criteria of connection were

satisfied, that “the facts at issue are of the same nature of many of the facts upon which the DRC’s

108
claims are based . . .” . And Uganda quoted the DRC to the effect that the DRC “founds its case

on... armed aggression... together with all of the acts resultant therefrom” 109, on “arbitrary

detentions”, on “inhuman treatment”, on “looting of public and private institutions”. “It is thus

10WODRC, pp. 47 et seq.
108
WOU, p. 29, para. 57.
10Ibid., pp. 29-30, para. 58. - 36 -

plain”, concluded Uganda, “that many of the DRC’s and Uganda’s complaints are of the same

factual nature” 110.

7. Uganda continued:

“It is likewise unmistakable that the D RC’s claims and Uganda’s counter-claim

form part of the same factual complex ... As a direct outgrowth of the hostilities
between the two States . . . FAC troops stormed the Ugandan Chancery, then detained
and beat Ugandan nationals at the airport, and then broke into the Chancery once
111
more.”

8. Uganda then maintained: “Just as the facts underlying the DRC’s claims and Uganda’s

counter-claim are of the same nature, so too are the legal claims advanced by each”, for example

“human rights violations in defiance of the most basic customary law” or “compensation . . . for all

acts of looting and theft”. Similarly, Uganda based its counter-claim in these proceedings on a

violation by the Democratic Republic of the Congo of “the standard of general international law

based upon universally recognized standards of human rights” and “demand[ed] compensation for

the unlawful expropriation of Ugandan property” 112.

9. Finally, Uganda claimed that the Emb assy premises were made available to Ugandan

dissident elements and that:

“[t]hus, the Congolese State’s attack upon and seizure of the Ugandan Embassy was

directly connected to its support for anti-Ug anda insurgent groups carrying out armed
attacks against Uganda from Congolese territory. And these State-supported acts of
armed aggression against Uganda are... directly connected to the subject matter of
113
the DRC’s claim against Uganda.”

46 10. In its Order of 29 November 2001, the Court ruled that this counter-claim was

“admissible as such and form[ed] part of the cu rrent proceedings”, stating the reasons for its

decision in the following terms:

“it is evident from the case file that the facts relied on by Uganda occurred in August
1998, immediately after its alleged invasion of Congolese territory; whereas each
Party holds the other responsible fo r various acts of oppression allegedly

accompanying an illegal use of force: whereas these are facts of the same nature, and
whereas the Parties’ claims form part of the same factual complex...; and whereas
each Party seeks to establish the responsibility of the other by invoking, in connection

with the alleged illegal use of force , certain rules of conventional or customary

11Ibid., p. 30, para. 60.
111
Ibid., pp. 30-31, para. 61.
112
Ibid., p. 31, para. 62.
11Ibid., pp. 31-32, para. 63. - 37 -

international law relating to the protection of persons and property; whereas the
Parties are thus pursuing the same legal aims;

41. Whereas the Court considers that the second counter-claim submitted by
Uganda is therefore directly connected with the subject-matter of the Congo’s
114
claims” .

11. This shows that the Court recognized the existence of a connection only insofar as it was

based on Uganda’s assertion of the same legal aims as those underlying the claims of the Congo, in

particular “in connection with the alleged illegal use of force [and] certain rules of conventional or

customary international law relating to the protection of persons and property”.

12. Yet, in its Rejoinder, Uganda ascribed new legal bases to the DRC’s responsibility for

the attack on the Ugandan Embassy and the inhumane treatment of diplomatic personnel of the

Ugandan Embassy and other Ugandan nationals. In effect, Uganda made a partial change in its

claims, which are now grounded on three separate legal foundations:

⎯ the first (for the first four bases of claim): violation of various articles of the 1961 Vienna

115
Convention on Diplomatic Rela tions: Articles 22(inviolability of mission premises) ,

29(inviolability of the person of diplomatic agents) 116, 30(inviolability of the private

117
residence of a diplomatic agent) and 24(inviolability of documents and archives of the

118
mission) ;

47 ⎯ the second: breaches of the international minimum standard relating to the treatment of foreign

119
nationals (for the fifth basis of claim) ; and

⎯ the third: the unlawful expropriation of the public property of Uganda (for the sixth basis of

120
claim) .

13. This transformation of the legal underpinning of Uganda’s claim, by including therein

claims based on violation of the Vienna Conventio n, broadens the subject-matter of the dispute

which the Court has authorized Uganda to present and is accordingly inadmissible.

11Order of 29 November 2001, paras. 40 and 41; emphasis added.

11RU, Vol. I, pp. 312-316.
116
Ibid., pp. 316-320.
117
Ibid., p. 321.
11Ibid., p. 322.

11Ibid., pp. 322-331.

12Ibid., pp. 331-332. - 38 -

14. In truth, the Vienna Convention is relied on in an attempt to confer upon certain private

individuals the status of those entitled to privileg es and immunities; thus, the “nationals” become

“the individual victims were on the scene in thei r role as members of the Ugandan Mission or as

121
family members, or as staff, of the Mission” . Describing them as such, on the basis of unproven

facts by the way, is nevertheless to no avail, because the whole problem lies in determining

whether Uganda is entitled to invoke the Vienna Convention.

15. Let us recall that the Court based its decision to recognize a direct connection with this

latter claim solely on the fact that

“each Party seeks to establish the responsibility of the other by invoking, in

connection with the alleged illegal use of force, certain rules of conventional or
customary international law relating to the protection of persons and property ; . . . the
Parties are thus pursuing the same legal aims”.

16. But, while the DRC cites the violation of the United Nations Charter provisions on the

use of force and on non-intervention, as well as The Hague and Geneva Conventions on the

protection of persons and property in time of o ccupation and armed conflict, Uganda suddenly

places its reliance on the 1961 Vienna Convention on Diplomatic Relations, which was not invoked

by the DRC at all. Uganda thereby breaks the connection which the Court identified in its Order of

2Novembe2 r001. The Vienna Conventio n was not invoked in either Uganda’s

Counter-Memorial or its additional observations because there was no counterpart to it in the

122
48 DRC’s claims. Thus, raising this point in the Rejoinder is indeed a “ploy” ⎯ in Professor Suy’s

words ⎯ by Uganda.

17. This change by Uganda in its claim has the effect of rendering inadmissible that part of

the claim affected by it. As the Permanen t Court of International Justice said in the Société

Commerciale de Belgique case: “it is clear that the Court cannot, in principle, allow a dispute

brought before it by application to be transforme d by amendments in the submissions into another

123
dispute which is different in character” .

12RU, Vol. I, p. 325, para. 703.
122
CR 2005/10, p. 40, para. 50 (Mr. Suy).
12Judgment of 15 June 1939, P.C.I.J. Series A/B, No. 78, p. 173. - 39 -

18. Furthermore, the new foundation which Uga nda seeks to ascribe to its claim would call

into play Article 63 of the Statute of the Court, concerning the right of third States to intervene in

proceedings. To admit Uganda’s new claims under the 1961 Vienna Convention would amount to

infringing the rights of the other States Parties to that Convention, which were not notified in due

course of their right to intervene.

19. In conclusion, the DRC maintains that, for the reasons set out above, those aspects of the

Ugandan claim which concern the interpretation and application of the 1961 Vienna Convention on

Diplomatic Relations must be dismissed as inadmissible.

II. Secondly, the claim based on inhumane treatment of Ugandan nationals cannot
be admitted either, because the requirements for admissibility of

diplomatic protection are not satisfied

20. The facet of the claim relating to alleged mistreatment suffered by certain Ugandan

nationals and founded on the violation of the mini mum international standard concerning treatment

of foreign nationals is inadmissible.

21. By means of this claim, Uganda is clearly exercising its diplomatic protection on behalf

of the alleged victims. Uganda ’s belated denial is unconvincing. Its first three claims were

founded on protection of its nationals, not in terms of protection of State interests. The abrupt

transformation of the claim, as we have seen, is unacceptable.

49 22. That said, before an application on behalf of nationals can be admitted, it must meet the

conditions on admissibility attaching to the exercise of diplomatic protection: first, the nationality

of the alleged victims must be proved and, second, the victims must have exhausted their local

remedies. Neither of these conditions on admissibility is satisfied in the present case.

23. First, Uganda has not shown that the pers ons on whose behalf it is claiming to act are of

Ugandan nationality and not Rwandan or of any dual nationality. It will be recalled that, by

Uganda’s own admission 124, the Embassy also sheltered Rwandan refugees. Further, it is unknown

whether these individuals are still alive and whethe r they still have Ugandan nationality. Only the

number of refugees concerned is known; their exact identity, their exact nationality, the nature of

the alleged unlawful acts committed against each of them, all these elements are unknown. In a

124
CMU, p. 40, para. 51. - 40 -

word, the very elements of the claim in respect of the identity of the victim and the object and

circumstances of the injury are not produced and, nor, therefore, is the legal basis of the claim

established.

24. Moreover, these nationals are sometimes described as entitled to treatment under the

international standard applicable to foreign na tionals and sometimes as individuals entitled to the

protection owed to diplomatic personnel. Uganda’s strategy here cannot help but bring to mind

LaFontaine’s bat, who, depending on which dire straits she had got herself into, cried out in one

case:

“What! I a mouse! Who told you such a lie?
Why, ma’am, I am a bird;
And, if you doubt my word,

Just see the wings with which I fly.
Long live the mice that cleave the sky!”

And in another misadventure in which she was at risk of being eaten as a bird:

“I’m truly no such thing as that.
Your eyesight strange conclusions gathers.
What makes a bird, I pray? Its feathers.

I’m cousin of the mice and rats.
Great Jupiter confound the cats!”

50
And La Fontaine concluded:

“And many a human stranger
Thus turns his coat in danger . . .”

25. Secondly, since it seems that these individuals left the Democratic Republic of the Congo

in a group in August1998 and that is when th ey allegedly suffered the unspecified, unproven

injuries, it would not appear that the requirement of exhaustion of local remedies has been satisfied.

Frankly, the Democratic Republic of the Congo ha s in its possession no information by which to

assess the nature of the claim and it is not in a pos ition to indicate what remedies would have been

available to the individuals in question. Ou r opponents’ contention as to the absence of such

remedies in the DRC is uncalled for and offensive and does not warrant a response.

26. It follows that this umbrella claim by Uganda on behalf of its alleged nationals is

inadmissible. - 41 -

27. I thank the Court for its kind attention. I should be grateful to you, Mr.President, for

being so kind as to give the floor to Maître TshibanguKalala, who is to conclude the DRC’s

statements for today by showing, in the alternativ e, that this second counter-claim by Uganda is, in

any event, unfounded.

The PRESIDENT: Thank you, Professor Salmon. I now give the floor to Mr. Kalala.

Mr. KALALA: Mr. President, Members of the Court,

U GANDA ’S SECOND COUNTER -CLAIM IS UNFOUNDED IN FACT

1. As ProfessorJean Salmon explained to the Court just a moment ago, the aspect of the

Ugandan counter-claim relating to the alleged mistreatment of its nationals in August 1998 at

Kinshasa by Congolese soldiers is patently inadmissible in law.

51 2. It is now my task to show the Court, in the alternative, that this aspect of the Ugandan

counter-claim is also unfounded in fact. I shall th en explain to the Court that the second aspect of

the Ugandan counter-claim rela ting to the expropriation and seizure by the DRC of Ugandan

property situated in Kinshasa also has no credible basis in fact.

I. The DRC did not mistreat the Ugandan nationals living in Kinshasa

3. Mr. President, Members of the Court, Uganda holds the DRC responsible for the

mistreatment of its nationals during the events that occurred in Kinshasa following the outbreak of

war on 2August1998. In this connection, the Respondent cites three events during which the

alleged mistreatment is said to have been comm itted. These are, first, an alleged attack on the

Ugandan Embassy in Kinshasa said to have taken place on or about 11 August 1998; second,

incidents said to have occurred at Ndjili Intern ational Airport in Kinshasa on 20August the same

year and, third, other incidents supposedly pr ovoked by Congolese soldiers during the evacuation

of the Ugandans from Kinshasa in August and September 1998. The DRC will show that none of

these accusations made against it by the Respondent has any serious credible factual basis. - 42 -

A. The DRC did not mistreat Ugandan nationals on 11 August 1998 during an alleged attack

on the Ugandan Embassy in Kinshasa

4. Concerning the alleged attack on its Embassy in Kinshasa and the mistreatment of its

nationals, Uganda asserts in its Counter-Memorial that

“on or around 11 August 1998, FAC troops stormed the Ugandan Chancery. They

threatened the Ugandan Ambassador and another diplomat at gunpoint, demanding the
release of certain Rwandan nationals. They also stole money found in the Chancery.
Despite protests by Ugandan Embassy officials, the Congolese government took no
125
action.”

5. As evidence for this accusation against the DRC, Uganda produces three documents:

⎯ The first is a letter of protest of 18 December 1998 sent by the Ugandan Minister for Foreign
52
126
Affairs to the Congolese authorities . This document, written four months after the event,

clearly shows that there is no mention of mi streatment of Ugandan nationals on or about

11 August 1998. Only the events of Septembe r and November 1998 are referred to. The DRC

indicated this in its Reply. But Uganda provided no answer to this either in its Rejoinder or in

oral argument.

⎯ The second document is an administrative report pr epared by a Ugandan official. This report,

drafted on 31March2001, in other words 22days before the filing of the Ugandan Counter-

Memorial and over two-and-a-half years after the events recounted in it, was thus prepared

unilaterally by the Ugandan authoriti es for the purposes of the present case 12. The probative

value and credibility of this report thus call for the utmost caution. At any event, what the

DRC cannot understand, and Uganda has still not yet explained, is that on 21 August 1998, or

only 11days after the alleged incident, the Ug andan Ambassador to Kinshasa sent a letter of

protest to the Congolese authorities, in which he makes no reference to the mistreatment he and

another diplomat allegedly suffered on 11August1998 at the ha nds of Congolese soldiers in

the Embassy.

⎯ The third document is an affidavit prepared on 20September2002 by the Ugandan

Ambassador to Kinshasa. In his statements recorded in this document, the former Ugandan

Ambassador, Mr.Kamanda Bataringaya, does no t even mention the alleged attack by

12CMU, p. 224, para. 398.
126
Ibid., Ann. 33.
12Ibid., Ann. 89 and RDRC, p. 382, para. 6.80. - 43 -

Congolese soldiers on the Ugandan Embassy said to have occurred “on or around

11 August 1998”, even though he was himself the victim of it.

The DRC is surprised to note that, for such a serious accusation, Uganda is not even able to

give the exact date of the incidents, merely giving an approximation, using the expression “on or

around 11 August 1998”. Further, Uganda asserts that, after the incidents concerned, it protested to

53 the Congolese authorities, who did nothing. The DRC formally disputes this assertion and

challenges Uganda to furnish proof of this alleged protest.

During his oral argument last Wednesday, ProfessorEricSuy stated that “the Congo does

not deny the facts” 128which occurred on or about 11 August 1998. Congo is surprised at this

statement, when it has devoted a number of pages of its written pleadings to challenging Uganda’s

allegations concerning the alleged incidents on or about 11August1998 point by point. In case

Uganda has not yet read or understood it, the DRC formally challenges all the Ugandan allegations

regarding the incidents concerned as unfounded in fact.

6. The DRC therefore respectfully request s the Court to note that, even applying a

particularly loose standard of proof, Uganda’s first accusation against it is totally unfounded in fact.

B. The DRC did not mistreat Ugandan nationals on 20 August 1998 at Ndjili International
Airport in Kinshasa

7. With respect to the events of 20August 1998 at NdjiliInternational Airport in Kinshasa,

during which the Ugandan nationals were supposedly mistreated by Congolese soldiers, Uganda

bases itself on only two direct sources. The first is a letter of protest of 18 December 1998 sent by

the Ugandan Minister for Foreign Affairs to the Congolese authorities, four months after the

events. Then there is the affidavit by the fo rmer Ugandan Ambassador to Kinshasa. These,

Mr.President, are documents prepared unilatera lly in Kampala by Uganda itself through the

medium of its agents. No other neutral source, a newspaper article for instance, mentions the

Ugandan allegations on this point. The DRC theref ore respectfully asks the Court not to consider

these documents as legal proof.

128
CR 2005/10, p. 36, para. 33. - 44 -

C. The DRC did not fail in its duty of protection towards the Ugandan nationals

8. As regards the accusation relating to failure to comply with the duty of protection and

prevention, Uganda accuses the DRC of not having fu lfilled this duty by re fusing to reply rapidly

54 and effectively to the requests supposedly made to it at the time by the Ugandan Ambassador in

Kinshasa.

9. In its Reply, the DRC gave a fitting response to this criticism, to which I would ask the

Court to refer. So I shall not revert to it here . I would merely say to the Court that Uganda

recognizes in its written pleadings 129that the DRC commissioned one of its officials–– who

escorted the Ugandan nationals to NdjiliAirport–– to ensure their peaceful evacuation to

Brazzaville in the Republic of the Congo.

10. It is clear that the Congolese authorities offered protection to the Ugandan nationals

within the means available at th e time, when the DRC was strugglin g to repel an armed attack led

by Ugandan troops among others. Uganda’s accusation is thus groundless.

11. Mr. President, Members of the Court, I have just reached the end of the first part of my

presentation, in which I have explained why th e first part of Uganda’s second counter-claim

relating to the alleged mistreatment of its nationals in Kinshasa is totally without foundation in fact.

I shall now move on to the second part, in which I shall show the Court that the second part of the

second Ugandan counter-claim relating to the seizu re and expropriation by the DRC of Ugandan

public property situated in Kinshasa is also totally without foundation in fact.

II. The DRC did not expropriate Ugandan public property in Kinshasa in August 1998

12. In its written pleadings, Uganda accuses the DRC of having appropriated public and

private Ugandan property in Kinshasa in August 1998. This claim concerns first the premises of

the diplomatic mission; second, four official vehicl es belonging to that mission; third, the official

archives of the diplomatic mission; and four th, various Ugandan movable property. The

counter-claimant valued its l ooted property at $US 6,139,060 130. I shall show the Court that both

55 the Ugandan accusations are groundless and also that Uganda’s valuation of the property concerned

is unrealistic.

129
CMU, p. 224, para. 399.
130
Ibid., p. 224, para. 397. - 45 -

A. The DRC did not misappropriate Ugandan public property

13. In its Counter-Memorial, Uganda accused the DRC ⎯ as Professor Jean Salmon pointed

out a moment ago ⎯ of “seizure of the Embassy of the Re public of Uganda [and of] the Official

Residence of the Ambassador” 131. For Uganda, these seizures constituted an “unlawful

132
expropriation of the public property of the Republic of Uganda” . In its Reply, the DRC

answered that, in fact, this property had been abandoned by the Uganda n diplomatic authorities

voluntarily, in August and September 1998, and that it had since then always remained at the

disposal of those authorities.

14. During his oral argument, Professor Suy stated that “Uganda has never claimed that there

was any seizure or expropriation of its property . . .” and it added that “The Congo seeks to divert

the Court from the real issue.” 133 This assertion, Mr. President, is totally and directly contradicted

by paragraph408 of the Uga ndan Counter-Memorial, which does indeed refer to “seizure and

appropriation” of the Embassy and Ambassador’s residence. The DRC takes note of this retraction

by Uganda and asks the Court to do likewise. May I inform the Court that, as I speak, the two

properties concerned have been at the disposal of Ugandan diplomats since their return to Kinshasa

in 2004. If those officials have not yet occupi ed these buildings and are renting elsewhere, as

ProfessorSuy indicated in his oral argument last Wednesday 134, it is only in order to have some

essential maintenance work done and to purchase certain fittings, the properties having stood empty

for over fiveyears. The DRC therefore consider s that there is no longer any dispute between the

two countries regarding these properties and that Uga nda will finally have the courage solemnly to

withdraw in open court its claim on this head.

56 In its written pleadings, as in its oral argument, Uganda accuses the DRC of having housed a

Ugandan dissident, Mr.TabanAmin, in the official residence of its Ambassador in Kinshasa and

appointed him general in the Congolese army 135. The Congo strongly contests this assertion, which

has no credible basis, being based merely on hearsay. What the DRC does know, which is also

13Ibid., p. 228, para. 408.

13Ibid.
133
CR 2005/10, p. 38, para. 42.
13Ibid., p. 36, para. 36.

13Ibid., CR 2005/10, p. 36, para. 35. - 46 -

common knowledge, is that TabanAmin was rece ntly received by the Ugandan authorities in

Kampala, who gave him a very warm welcome, with major international media coverage.

B. The DRC did not misappropriate the vehicl es of the Ugandan diplomatic mission in
Kinshasa

15. Mr.President, Members of the Court, in its Counter-Memorial as in its oral argument,

Uganda asserts that Congolese soldiers forced thei r way into the Embassy and into the official

residence of its Ambassador in Kinshasa, in September 1998, and that they seized four official

Embassy cars 136. In its Reply, the DRC stressed the absence of eviden ce to back up these

137
allegations and also their strong lack of credibility . In this connection, the DRC points out that,

in support of these two allegations, Uganda pr oduces two documents which I have already

subjected to critical analysis in the course of this presentation. These are the letter of protest of

18 December 1998, which was unsupported by any evidence, and the evacuation report unilaterally

prepared on 31 March 2001 by a Ugandan official. Incidentally, this report makes no reference to

any theft of Ugandan vehicles said to have occurred in September 1998.

16. As I have already explained in the cour se of this presentation, we are dealing here,

Mr.President, with two documents unilaterally prepared by Uganda, and uncorroborated by any

other source. The DRC would moreover emphasize that Uganda failed to take the elementary

precaution of preparing an inventory of its movable property jointly with the Congolese authorities,

138
57 as is customary, before entrusting surveillan ce and protection of its premises to the DRC . This

would have had the merit of making it possible to i ndicate precisely that a particular item had been

removed or damaged when compared with the or iginal inventory drawn up in September 1998.

Since the number and nature of the items supposedly left behind by Uganda in these buildings was

not established in tempore non suspecto, there is thus no credible basis for proving that Uganda left

four cars in Kinshasa and that they were stolen by Congolese soldiers.

13UCM, p. 225, para. 400.
137
See CR, vol. 1, pp. 391-392, paras. 6.96-6.99.
13Ibid., p. 394, para. 6.105. - 47 -

C. The DRC did not misappropriate the archiv es of the Ugandan diplomatic mission in
Kinshasa

17. In its Rejoinder 139, Uganda also accuses the DRC of having misappropriated certain

archives, as well as official documents belonging to its diplomatic mission in Kinshasa.

18. Mr. President, Members of the Court, in order to prove the appropriation of its archives

by the Congolese authorities, the Counter-Claiman t produces two documents, first an affidavit

recording the testimony of the former Ugandan Ambassador to Kinshasa and second, the status

report of 28September2002, which states that no movable property belonging to the Ugandan

diplomats was found on the premises.

19. As regards the affidavit by the former Ug andan Ambassador to Kinshasa, I have already

explained to the Court a few moments ago why this document can have no probative value in law.

I shall therefore not revert to this again.

20. As to the inventory of 28September2002, it can only constitute evidence if compared

with a separate inventory, prepared in tempore non suspecto at the time when the Ugandan

diplomats were evacuated from Kinshasa. However, no such inventory was ever made, probably

because the members of Uganda’s diplomatic missi on took with them all property and archives of

any value, and were not concerned about other papers of no value, which they would have left at

the Embassy.

58 21. As part of its pleading strategy aimed at establishing the Congo’s responsibility for the

alleged loss of its official archives, Uganda also produces a list in this connection 140, entitled “loss

of Uganda Government property at Uganda Embassy” ; this list, too, was prepared unilaterally by

Ugandan officials in their Kampala offices for purposes of the present proceedings and appended to

141
Uganda’s Counter-Memorial . The DRC has already mounted a vigorous and decisive challenge

to this document in its Reply 142, to which Uganda has failed to respond. I will therefore not repeat

our criticisms here.

13RU, p. 322, para. 695.
140
Ibid., p. 315, para. 680.
141
CMU, Ann. 92.
14RC, pp.394-395, paras.6.104-6.105. - 48 -

22. As a final point in my refutation of Uga nda’s claim regarding the loss of its official

archives, I would draw the Court’s attention to our opponents’ curious conduct in this matter.

First, it is disturbing, Mr.President, Members of the Court, to note that Uganda raised, for

the first time, the issue of the theft or loss of its official archives only in its Rejoinder of

6December2002, four years after the event. T hus there is no mention of the matter either in

Uganda’s diplomatic protests in August and Dece mber1998, or in its counter-claims in these

proceedings ⎯ not in its Counter-Memorial, not in its Observations on its counter-claims, nor in its

oral argument in the provisional measures proceedings. The DRC therefore fails to understand

how the Ugandan former ambassador to Kinshasa, who claims to have himself actively participated

143
in the preparation of Uganda’s Counter-Memorial , can have suffered for over four years from

total amnesia regarding the seizure by the Congolese authorities of important official documents

belonging to his country.

Secondly, and this is fundamental, Mr.Pr esident, while suddenly producing a claim that

Congolese troops prevented its diplomats from removing the archives and other official mission

documents at the time of their departure from Ki nshasa, Uganda fails to explain how it has

59 nonetheless come to be in possession of certain offici al documents prepared and dated in Kinshasa

which purport to come from those archives. This is inter alia the case in respect of:

⎯ a report prepared in April 1998 by Uganda’s ambassador in Kinshasa on the insurgency in the

144
Ruwenzori Mountains ;

⎯ Uganda’s letter of protest of 21 August 1998 14;

⎯ the Embarkation Permit issued on 19August 1998 by the Congolese Government to the

146
individuals whose evacuation had been requested by the Ugandan Embassy ;

⎯ the list of 32 Ugandan nationals drawn up by the Ugandan Embassy in Kinshasa 147;

⎯ the letter of 22August1998 whereby Uganda ’s ambassador in Kinshasa requested the

Congolese authorities to add two names to that list 148; and

143See above, para. 1.35.

144RU, Ann. 22.
145
CMU, Ann. 23.
146RU, Ann. 28A.

147Ibid. - 49 -

⎯ the letter of 24 August 1998 addressed by Uganda ’s ambassador in Kinshasa to the Congolese

Government 149.

Mr. President, Members of the Court, as the Court can readily see, all the official documents

which I have just cited ⎯ and there are already many of them ⎯ were prepared in Kinshasa and

kept by the Ugandan Embassy in its archives. If Uganda’s diplomats had been unable to remove

official documents when they left Kinshasa, b ecause they were allegedly prevented from doing so

by Congolese troops, how, then, was Uganda able to obtain the documents which I have just cited

and add them to the case file?

23. In the absence of any answer by Uganda to this fundamental question, and in light of the

particularly fanciful nature of this aspect of Uganda’s claim, the DRC can only request the Court to

dismiss it as manifestly unfounded.

60 D. The DRC did not seize certain moveable property of the Ugandan diplomatic mission in
Kinshasa

24. Finally, in its Rejoinder Uganda contends that the DRC seized certain moveable property

from the Ugandan diplomatic mission in Kins hasa. As evidence of these allegations, the

counter-claimant presents a list prepared unilaterally by its own officials ⎯ which I have already

cited in this presentation 150⎯ together with the inventory of 28 September 2002, which states that

151
no moveable property belonging to the mission was found on the premises . I have already

challenged the evidentiary value of these two documen ts in this presentation. I would merely now

recall that, in law, these two documents carry no probative force whatever in regard to Uganda’s

claims.

Mr. President, the DRC still fails to understand Uganda’s pleading strategy, which leads it to

produce to the Court documents concocted by itsel f with a view to engaging the international

responsibility of another State. Uganda has been unable to prove either that its nationals suffered

inhumane treatment, or that its property was expropriated or stolen.

14Ibid.
149
Ibid., Ann. 29.
150
See above, para. 2.51.
15RU, p. 315, para. 680. - 50 -

25. I now turn to the final section of my pr esentation, which concerns the evaluation of the

alleged loss suffered by the Ugandan State as a result of acts perpetrated by Congolese troops.

26. Mr. President, Members of the Court, I note that, according to Uganda, the total value of

its public property allegedly expropriated or stol en by the DRC amounts to US$6,319,060. This

calculation was made unilaterally by Uganda’s own officials and is claimed to represent a reference

152
value for purposes of reparation of the material loss allegedly suffered by Uganda .

27. In its written pleadings the DRC has al ready explained why the counter-claimant’s

153
method of calculation was profoundly flawed . Uganda has failed to answer the DRC’s

objections on this point. In these circumstances, the DRC can but restate the arguments set out in it

61 written pleadings. Without going into detail, the DRC would note that it is difficult, to say the

least, to understand on what basis it is being asked to pay a sum covering the total value of

Uganda’s two buildings when these are currently in Uganda’s possession and, as Professor Suy has

told us, were never seized or expropriated by the DRC.

28. In conclusion, the DRC feels bound to st ress the very peculiar evidentiary techniques

employed by Uganda in order to s ubstantiate its charges against the Congo. It is easy enough to

accuse a sovereign State of maltreatment of indivi duals and thefts of archives, money and other

property. But it is quite another matter to subs tantiate accusations of this kind through evidence

going beyond a curious montage of self-concocted doc uments, the reading of which demonstrates

their total lack of relevance, since they simply make no mention whatever of the incidents in

question.

29. In conclusion, the DRC respectfully requ ests the Court, even if it does find Uganda’s

second counter-claim admissible, purely and simply to dismiss that claim as unfounded, both in

fact and in law. Mr. President, Members of the C ourt, this brings to an end the presentation of the

Democratic Republic of the Congo on Uganda’s counter-claim. Mr.President, I thank the Court

for its kind attention and wish it a pleasant weekend.

152
CMU, p. 224, para. 397 and RU, p. 331, para. 714.
15RDRC, pp. 394-395, para. 6.105, and AWODRC, pp. 101-102, paras. 2.62-2.63. - 51 -

Le PRESIDENT: Merci beaucoup, MonsieurKa lala. Je donnerai mainte nant la parole au

juge Vereschchetin, qui a une question à poser à chacune des Parties, puis aux jugeKooijmans et

au juge Elaraby, qui auront chacun une question commune aux deux Parties.

Monsieur Vereschchetin, je vous en prie.

Le juge VERESCHCHETIN : Merci, Monsieur le président. Ma première question s’adresse

à la République démocratique du Congo. Quelles sont les périodes précises auxquelles se réfèrent

les conclusions telles qu’elles figurent dans les pièces de procédure de la République démocratique

du Congo ?

Voici à présent la question adressée à la République de l’Ouganda. Quelles sont les périodes

précises auxquelles se réfèrent les conclusions re latives à la première de mande reconventionnelle

telles qu’elles figurent dans les pièces de procédure de l’Ouganda ? Merci, Monsieur le président.

62 Le PRESIDENT: Merci, Monsieur Vereschch etin. Je donnerai à présent la parole au

juge Kooijmans.

Juge KOOIJMANS: Merci, Monsieur le prési dent. Ainsi que vous l’avez indiqué, cette

question s’adresse à l’une et l’autre Partie. Les Parties peuvent-elles indiquer quelles zones des

provinces de l’Equateur, Orientale, du Nord-K ivu et du Sud-Kivu se trouvaient, au cours des

périodes pertinentes, sous le contrôle, respectivement, des UPDF et des diverses milices rebelles ?

Il serait souhaitable que la réponse à la présente question soit accompagnée de croquis.

Merci, Monsieur le président.

Le PRESIDENT: Merci, Monsieur Kooijmans. Je donnerai maintenant la parole au

juge Elaraby.

Juge ELARABY: Merci, Monsieur le président . Ma question s’adresse aux deux Parties.

L’accord de Lusaka, signé le 10 juillet 1999 et entré en vigueur vingt-quatre heures après sa

signature, dispose que : «Le retrait définitif de toutes les forces étrangères du territoire national de

la République démocratique du Congo se fera c onformément à l’annexeB du présent accord.»

(Annexe A, chap. 4 (4.1).) - 52 -

L’alinéa17 de l’annexeB dispose que le «r etrait ordonné des forces étrangères» devra

prendre place au jour «J + 180 jours».

L’Ouganda affirme que le retrait définitif de ses forces est intervenu le 2 juin 2003.

Quelles sont les vues des Parties concernant la base juridique de la présence de forces

ougandaises en République démocratique du Congo durant la période comprise entre le «retrait

ordonné définitif» convenu dans l’accord de Lusaka et le 2juin2003? Merci, Monsieur le

président.

Le PRESIDENT : Merci, Monsieur Elaraby.

Le texte écrit de ces questions sera communiqué aux Parties dès que possible. Les Parties

peuvent décider, si elles le jugent opportun, de répondre à ces questions lors du deuxième tour de la

procédure orale. Il leur est également possible de présenter des réponses écrites aux questions dans

un délai d’une semaine suivant la clôture de la pr ésente procédure orale, à savoir pour le vendredi

6 mai 2005 au plus tard. Dans ce dernier cas, toutes observations qu’une Par tie souhaiterait faire,

63 conformément à l’article72 du Règlement de la Cour, sur les réponses fournies par la Partie

adverse devraient être présentées le vendredi 13 mai au plus tard.

Voici qui met un terme à la séance d’aujourd’hu i. Je tiens à remercier chacune des Parties

pour les exposés qu’elles ont présentés au cours de ce premier tour de plaidoiries. Les audiences

reprendront le lundi 25 avril, de 10 heures à 13 heures, puis de 15 heures à 16 h 30 pour entendre le

second tour de plaidoiries de la République dé mocratique du Congo concernant ses propres

demandes. A l’issue de l’audience du lundi après-midi, le Congo présentera ses conclusions finales

concernant ses propres demandes.

L’Ouganda, quant à lui, présentera sa réplique orale, tant sur les demandes

reconventionnelles de la République démocra tique du Congo que sur ses propres demandes, le

mercredi 27 avril de 10 heures à 13 heures, puis de 15 heures à 18 heures. A l’issue de l’audience

du mercredi après-midi, l’Ouganda présentera ses conclusions finales, tant sur les demandes du

Congo que sur ses propres demandes reconventionnelles. - 53 -

La République démocratique du Congo conclura ensuite le vendredi 29 avril, de 10 heures à

11 h30, son second tour de plaidoiries concernant les demandes reconventionnelles de l’Ouganda

et présentera ses conclusions finales à cet égard.

Chaque Partie disposera donc d’un total de deux séances complètes de troisheures pour

l’ensemble de ses répliques orales. Je tiens néanmoins à vous rappeler que, conformément au

paragraphe1 de l’article60 du Règlement de la Cour, les exposés oraux doivent être aussi

succincts que possible. J’ajouterai que le but du second tour de plaidoiries est de permettre à l’une

et l’autre des Parties de répondre aux arguments pr ésentés oralement par la Partie adverse. Le

second tour ne doit dès lors pas constituer une répé tition de ce qui a été dit auparavant. Il va donc

sans dire que les Parties ne sont pas obligées d’utiliser la totalité du temps de parole qui leur est

attribué. Je vous remercie.

La séance est levée.

L’audience est levée à 13 h 10.

___________