Traduction

CO

CR 2005/2 (traduction)

CR 2005/2 (translation)

Lundi 11 avril 2005 à 10 heures

Monday 11 April 2005 at 10 a.m. - 2 -

8 Le PRESIDENT : Veuillez vous asseoir. L’audience est ouverte.

La Cour siège aujourd’hui pour entendre les pl aidoiries des Parties en l’affaire relative aux

Activités armées sur le territoire du Congo (République démocratique du Congo c. Ouganda).

La Cour ne comptant pas sur le siège de juge de la nationalité de l’une ni de l’autre des

Parties, celles-ci se sont toutes deux prévalues du droit que leur confèr e le paragraphe2 de

l’article31 du Statut de désigner un juge ad hoc; M.Verhoeven, désigné par la République

démocratique du Congo, et M. Kateka, désigné par la République de l’Ouganda, ont tous deux été

installés comme juges ad hoc en l’affaire le 16 octobre 2001.

*

Je rappellerai maintenant les pr incipales étapes de la procédure. Le 23juin1999, la

République démocratique du Congo a introduit une in stance contre la République de l’Ouganda au

sujet d’un différend relatif à «des actes d’agression armée perpétrés par l’Ouganda sur le territoire

de la République démocratique du Congo en violatio n flagrante de la Charte des Nations Unies et

de la Charte de l’Organisation de l’unité africaine».

La requête invoquait, pour fonder la compétence de la Cour, les déclarations par lesquelles

les deux Etats ont accepté la juridiction obligatoire de celle-ci ainsi qu’il est prévu au paragraphe 2

de l’article 36 de son Statut.

Le 19juin2000, le Congo a présenté à la Cour une demande en indication de mesures
er
conservatoires en vertu de l’artic le41 du Statut. Par ordonnance du 1 juillet 2000, la Cour a

indiqué certaines mesures conservatoires.

Le Congo a déposé son mémoire et l’Ouganda son contre-mémoire dans les délais fixés à cet

effet par la Cour dans son ordonnance du 21 octobre 1999, soit les 19 juillet 2000 et 20 avril 2001,

respectivement. Le contre-mémoire de l’Ouganda incluait des demandes reconventionnelles. Lors

d’une réunion que le président de la Cour a tenue avec les agents des Parties le 11juin2001, le

Congo, invoquant l’article80 du Règlement de la Cour, a soulevé certaines objections à la

recevabilité des demandes reconventionnelles formulées dans le contre-mémoire de l’Ouganda. Au

cours de cette réunion, les deux agents sont convenus que leurs gouvernements respectifs - 3 -

9 déposeraient des observations écrites sur la question de la recevabilité des demandes

reconventionnelles, observations qui ont été dûment déposées dans les délais fixés à cet effet.

Ayant reçu des observations écrites détaillées de chacune des Parties, la Cour a considéré

qu’elle était suffisamment informée de leurs positions respectives quant à la recevabilité des

demandes reconventionnelles.

Par ordonnance du 29novembre2001, la C our a estimé que deux des trois demandes

reconventionnelles présentées par l’Ouganda dans son contre-mémoire étaient recevables comme

telles et faisaient partie de l’instance en cours, ma is non la troisième. Elle a également prescrit la

présentation, par le Congo, d’une réplique et , par l’Ouganda, d’une duplique, portant sur les

demandes des deux Parties, et a fixé, respectiv ement, au 29 mai 2002 et au 29 novembre 2002 les

dates d’expiration des délais pour le dépôt de ces pi èces de procédure. Enfin, la Cour a dit qu’il

échoyait en outre, aux fins d’assurer une stricte égalité entre les Parties, de réserver le droit, pour le

Congo, de s’exprimer une seconde fois par écrit sur les demandes reconventionnelles de l’Ouganda,

dans une pièce additionnelle dont la présentation pourrait faire l’objet d’une ordonnance ultérieure.

Le Congo a dûment déposé sa réplique dans le délai prescrit à cet effet. L’Ouganda a dûment

déposé sa duplique dans le délai prorogé par la Cour à sa demande.

Par lettre datée du 6janvier 2003, le coag ent du Congo, se référant à l’ordonnance du

29novembre2001 susmentionnée, a fait savoir à la Cour que son gouvernement souhaitait

s’exprimer une seconde fois par écrit sur les dema ndes reconventionnelles de l’Ouganda, dans une

pièce additionnelle. Par ordonnance du 29janvier2 003, la Cour a autorisé la présentation par le

Congo d’une pièce additionnelle portant exclus ivement sur les demande s reconventionnelles

soumises par l’Ouganda et a fixé au 28 février 2003 la date d’expiration du délai pour le dépôt de

cette pièce. Le Congo a dûment déposé la pièce add itionnelle dans le délai ai nsi fixé, et l’affaire

s’est trouvée en état.

Après une réunion que le président de la C our a tenue avec les agents des Parties le

24avril2003, et au cours de laquelle il s’est e nquis de leurs vues quant à l’organisation de la

procédure orale sur le fond, la Cour a fixé au 10 novembre 2003 la date d’ouverture de la procédure

orale. - 4 -

Au cours du mois d’octobre 2003, les Parties ont échangé par l’intermédiaire du Greffe des

exemplaires de certains documents qui avaient trait aux questions en cause et qui ne relevaient pas

du domaine public. Le 5 novembre 2003, le greffier a informé les Parties que la Cour avait décidé

de ne pas verser les documents en question au dossier de l’affaire et que, par conséquent, en

10 application du paragraphe 4 de l’ article 56, ceux-ci ne devaient pas être mentionnés au cours de la

procédure orale, à moins qu’ils ne «fasse[nt] partie d’une publication facilement accessible».

Les17 et 20octobre2003, l’agent de l’Ouga nda a informé la Cour que son gouvernement

souhaitait produire de nouveaux documents, conformément à l’article 56 du Règlement de la Cour.

Le 5 novembre 2003, l’agent du Congo a exprimé le souhait de produire de nouveaux documents,

conformément à l’article 56 du Règlement de la Cour. Comme aucune des Parties ne s’opposait à la

production de nouveaux documents par l’autre, les Parties ont été informées, par lettres des5 et

12novembre2003, qu’il serait loisib le aux conseils de citer les doc uments en question lors de la

procédure orale.

Le 5novembre2003, l’agent du Congo s’est enqui s de la possibilité de remettre à une date

ultérieure, à savoir au mois d’avril2004, l’ouvertur e des audiences en l’affaire, prévue à l’origine

pour le 10 novembre 2003, «en vue de permettre aux négociations di plomatiques engagées par les

Parties de se dérouler dans un climat de sér énité». Par lettre du 6novembre2003, l’agent de

l’Ouganda a informé la C our que son gouvernement «appu [yait] cette proposition et [avait]

acc[édé] à cette demande».

Le 6 novembre 2003, le greffier a fait savoir aux deux Parties par lettre que la Cour, « [ayant

tenu] compte des représentations des Parties, [avait] décidé de renvoyer l’ouverture de la procédure

orale en l’affaire» et que la nouvelle date pour l’ouverture de la procédure orale serait arrêtée le

moment venu. Puis, par des lettres datées du 20 octobre 2004, le greffier a informé les Parties que

la Cour avait décidé, conformément à l’article 54 de son Règlement, de fixer au lundi 11 avril 2005

la date d’ouverture de la procédure orale en l’affaire.

La Cour a appris avec tristesse le décès de l’agent de l’Ouganda en mai 2004 et réitère à la

République de l’Ouganda ses plus sincères condoléances. Par lettre du 3février2005,

S. Exc. M. Lucian Tibaruha, Solicitor General et coagent de l’Ouganda, a informé la Cour de la - 5 -

nomination de S. Exc. l’honorable E. Khiddu Makubuya, Attorney General de l’Ouganda, comme

agent aux fins de l’affaire, à la place de feu l’honorable F. J. Ayume.

er
1Le février2005, l’agent du Congo a informé la Cour que son gouvernement souhaitait

produire certains documents nouveaux, conformément à l’article 56 du Règlement de la Cour. Le

16 février 2005, le coagent de l’Ouganda a fait sa voir à la Cour que son gouvernement n’entendait

formuler aucune objection à la production de l’un des documents nouveaux du Congo et a présenté

11 certaines observations concernant les autres documen ts. Le 21février2005, le greffier a informé

les Parties par lettre que la Cour avait décidé d’autoriser la production des documents soumis par le

Congo.

Le 15mars2005, le coagent de l’Ouganda a transmis au Greffe un nouveau document que

son gouvernement souhaitait produire conformément à l’article56 du Règlement de la Cour.

Aucune objection n’ayant été élevée par le Gouvernement congolais contre la requête de

l’Ouganda, le greffier a informé les Parties, le 8 avril 2005, que la Cour avait décidé d’autoriser la

production dudit document. Les Parties ont égalemen t été informées que la décision d’autoriser la

production d’un nouveau document en vertu de l’ar ticle56 du Règlement de la Cour était sans

préjudice de l’application générale des dispositions de l’article 102 de la Charte des Nations Unies

et ont été invitées à fournir à la Cour les renseignements voulus sur les questions relatives à

l’enregistrement et au statut des instruments internationaux concernés.

*

J’ajoute que la Cour, après s’être renseignée auprès des Parties, a décidé que, conformément

au paragraphe2 de l’article53 de son Règlement, des exemplaires des pièces de procédure et des

documents annexés seraient rendus accessibles au public à l’ouverture de la procédure orale sur le

fond.

*

Je note la présence à l’audience des agents, conseils et avocats des deux Parties.

Conformément aux dispositions relatives à l’organisation de la procédure qui ont été arrêtées par la - 6 -

Cour, les audiences comprendront un premier et un second tours de plaidoiries. Le premier tour,

qui débute aujourd’hui, se terminera le vendred i 22avril2005, jour où le Congo présentera

ses observations sur les demandes reconventionnelles de l’Ouganda. Le second tour de plaidoiries

commencera le lundi25 et se terminera le vendredi 29avril2005, jour où le Congo

présentera sa réponse aux demandes reconventio nnelles de l’Ouganda. Le Congo, qui est

le demandeur en l’instance, parlera le pr emier. Je donne maintenant la parole à

S. Exc. M. Jacques Masangu-a-Mwanza, agent de la République démocratique du Congo.

12 Votre Excellence, vous avez la parole.

Mr. MASANGU-A-MWANZA: Thank you, Mr. President. Mr. President, Members of the

Court, I should like to express to you the very high esteem in which the Democratic Republic of the

Congo holds the judicial settlement of disputes, which has led it today to appear once more before

the International Court of Justice, principal judici al organ of the United Nations, in order to plead

the cause of the Congolese nation on account of grave violations of human rights and of

international military law, as a result of the a ggression, military occupation and plunder of its

natural resources by the troops of Uganda and their Congolese puppets.

I would therefore take this opportunity to thank the Court for having kindly acceded to our

request of 9 September 2004 to organize hearings in this case, the first round of which opens today.

I should now like to present to the Court my country’s delegation, led by His Excellency

Maître Honorius Kisimba Ngoy Ndalewe, Minister of Justice and Keeper of the Seals.

So great is the esteem in which our Gove rnment holds the world’s premier judicial

institution, the International Court of Justice, that it has sent this distinguished individual in person,

honorary bâtonnier of the Supreme Court of Justice, in order that he may explain to you the

grounds and arguments on the basis of which th e Court is prima facie competent to grant our

Application of 23 June 1999.

He will emphasize the urgency with which th e Court is requested to put a stop to the

massacres of the Congolese peoples by Ugandan troops, who remain present on our territory

through the medium of militias, on various false pretexts of preventing the Ugandan insurgency

from reaching Ugandan territory. - 7 -

The representation of the Democratic Republic of the Congo includes, in addition to myself,

the Agent:

1. His Excellency Mr. Honorius Kisimba Ngoy Ndal ewe, Minister of Justice, Keeper of the

Seals,

2. Maître Tshibangu Kalala, member of the Kinshasa and Brussels Bars,

13 as Co-Agent and Advocate;

3. Mr. Jean Salmon, Professor Emeritus, Université libre de Bruxelles, member of the Institut de

droit international and of the Permanent Court of Arbitration,

4. Mr. Pierre Klein, Professor of International Law, Director of the Centre for International Law,

Université libre de Bruxelles,

5. Mr. Olivier Corten, Professor of International Law, Université libre de Bruxelles,

6. Mr. Philippe Sands, Q.C., Professor at the University of London (University College London)

as Counsel and Advocates;

7. Maître Ilunga Lwanza, Deputy Directeur de cabinet and Legal Adviser, cabinet of the

Minister of Justice and Keeper of the Seals,

8. Mr. Victor Musompo Kasongo, Private Secretary to the Minister of Justice and Keeper of the

Seals,

9. Mr. Nsingi-zi-Mayemba, First Counsellor, Embassy of the Democratic Republic of the Congo

in the Kingdom of the Netherlands,

10. Ms Marceline Masele, Second Counsellor, Embassy of the Democratic Republic of the Congo

in the Kingdom of the Netherlands,

as Advisers;

11. Maître Mbambu wa Cizubu, member of th e Kinshasa Bar (law firm of Tshibangu and

Partners),

12. Maître Kikangala Ngoie, member of the Brussels Bar,

13. Mr. François Dubuisson, Lecturer, Université libre de Bruxelles, - 8 -

14. Ms Anne Lagerwal, Assistant, Université libre de Bruxelles,

15. Ms Anjolie Singh, Assistant, University College London,

as Assistants.

By its Order of 1July2000 the Court, pendi ng its decision in the proceedings instituted by

the Democratic Republic of the Congo against the Republic of Uganda, unanimously indicated the

following provisional measures:

1. Both Parties must, forthwith, prevent and refra in from any action, and in particular any armed

action, which might prejudice the rights of the other Party in respect of whatever judgment the

14 Court may render in the case, or which might aggr avate or extend the dispute before the Court

or make it more difficult to resolve;

2. Both Parties must, forthwith, take all me asures necessary to comply with all of their

obligations under international law, in partic ular those under the United Nations Charter and

the Charter of the Organization of African Un ity, and with United Nations Security Council

resolution 1304 (2000) of 16 June 2000;

3. Both Parties must, forthwith, take all measures necessary to ensure full respect within the zone

of conflict for fundamental human rights and for the applicable provisions of humanitarian

law.

Mr. President, flouting the Court’s Order of 1 July 2001, Uganda continues with its military

and civil occupation of our country, by providing arms to the ethnic groups confronting one another

in the Ituri region, located in Oriental Province, on the boundary with Uganda. On top of this, our

wildlife is being massacred, as is confirmed by the report of the expert group charged by the United

Nations Security Council with investigating the ille gal exploitation of natural resources and other

forms of wealth; it includes the poaching of rare species such as the white rhinoceros, which is

only to be found in the Democratic Republic of th e Congo, to the point where it is threatened with

total extinction in the Garamba National Park, on account of its horns, which are eagerly sought

after by dealers from all over the world, who have no hesitation in paying $5,000 a pair for the

manufacture of daggers. The same applies to the mountain gorillas of the Virunga Park, which

have been decimated, hunted for their meat and transferred to Uganda or Rwanda. - 9 -

Mr. President, on 16October2003, followi ng his meeting with the Belgian Deputy Prime

Minister for Foreign Affairs at the Nakasiro presidential palace in Kampala, the President of

Uganda informed the national and international press that he was continuing to maintain a battalion

of the Ugandan army at Bundibugyo, in the north -east of the Democratic Republic of the Congo,

close to the Congo-Ugandan border because, in his view, “this part of the Congo remains

uncontrollable because of the residual presence of elements of the ADF (a Ugandan insurgent

group) who are regrouping there”. Paradoxically as it may seem, Uganda continues to repeat what

the international community has been hearing si nce the signature of th e Lusaka Accords: “We

15 have definitively withdrawn after five years of operations, and we shall never again deploy our

troops in the Democratic Republic of the Congo.”

What does that mean? Merely maintaining a battalion in Bundibugyo, on our territory,

which in military terms means an infantry unit comprising several companies. Any observer

entering Oriental Province will note with bitterness that Uganda has left behind it a fine network of

warlords, whom it is still supplying with arms a nd who themselves continue to plunder the wealth

of the Congo on behalf of Ugandan and foreign bus inessmen, particularly at Mongwalu, which is

rich in gold. There are also Ugandan troops at Damango and at Bundunguya. The question we

have to ask ourselves is whether these troops ar e not really behind the Congolese militias who are

committing massacres in the Ituri region, whose administrative centre is Bunia, where

50,000 Congolese have been massacred and more th an 500,000 displaced from their villages, their

homes plundered and burnt. Just recently, 50MONUC peacekeepers were murdered by these

armed militias, which are continuing to commit appalling atrocities. It is our legitimate wish to see

this battalion of the Ugandan army leave Bundibugyo and return to bases beyond the

Congo-Uganda border area. For one thing is certain: the Congolese militias responsible for the

terror in Ituri are definitely supported by Ugandan officers. I thank you for your attention, and I

particularly thank you, Mr.President, for kindly briefly recapitulating our pleadings before this

Court. Mr. President, I should now like to cede the floor to His Excellency the Minister of Justice

and Keeper of the Seals. Thank you. - 10 -

The PRESIDENT: Thank you, Your Ex cellency. I now give the floor to

H.E. Mr. Kisimba Ngoy.

Mr. KISIMBA NGOY NDALEWE: Mr. President, Members of the Court,

The President of the Democratic Republic of the Congo, His Excellency Major-General

Joseph Kabila, has instructed me to convey to the Court his respectful greetings and to express his

16 profound respect for the fundamental mission it performs on a daily basis for the peaceful

settlement of disputes between States, thereby strengthening justice and peace in the world.

The Democratic Republic of the Congo takes th is opportunity also to express its sincere

regret to the Court for the upset in its working schedule in November2003 after action by the

Congolese authorities necessitated by political and diplomatic imperatives.

Mr. President, Members of the Court, the De mocratic Republic of the Congo is one of the

countries of the African Union which for many years have demonstrated their trust in the principal

judicial organ of the United Nations. Indeed, the Congo has since 1989 signed the optional

declaration accepting the compulsory jurisdiction of the Court without reservation; as early as

1975, it was involved in proceedings for an advisory opinion and has appeared on a number of

occasions before the Court, as Applicant, in contentious cases.

The case which today brings me to this prestig ious setting and which is the object of an

Application instituting proceedings of 23 June 1999 is between our country and Uganda. Since that

date, relations between the two countries have happily improved following various bilateral and

multilateral agreements and the withdrawal of Ugandan troops from the greater part of Congolese

territory. Diplomatic relations, never officially severed despite the state of war between our two

countries, are looking more auspicious since th e recent reopening of the Ugandan Embassy in

Kinshasa.

Although the future therefore looks more auspic ious, the Court nevertheless has to rule on

events of the recent past, during which relations be tween the two countries were particularly tense.

My Government considers that Uganda’s r esponsibilities in the aggression and five-year

occupation of which the Democratic Republic of th e Congo has been the victim must be judicially

established. The consequences of that responsibility must also be recognized; the injury suffered - 11 -

by my country following the Ugandan invasion and occupation will be detailed later in the

proceedings. Its scale is enormous; it has cost th e lives of many of our soldiers, had a deep and

lasting effect on our country’s infrastructure a nd environment, slaughtered its civilian population

and exhausted its economy and natural resources.

17 The Democratic Republic of the Congo also seeks an assurance that there will be no

recurrence of this type of illegal conduct. It must be made clear that declarations such as the one

by Mr.JamesWapakhabulo, former Ugandan Minister for Foreign Affairs, made in April2003,

according to which “the withdrawal of our troops from the Democratic Republic of the Congo does

not mean that we will not return there to defend our security!”, are now definitively a thing of the

past.

The Democratic Republic of the Congo also wi shes to be certain that no more support will

be given by Uganda to groups hostile to the Congolese Government and that there will definitely be

an end to the pillaging and illegal exploitation of natural resources.

The Democratic Republic of the Congo is convin ced that a ruling by the Court will have the

effect of ensuring peace in the Great Lakes region and opening a new erin friendly relations

between the two States, which are today opponents before the Court. It confidently relies on the

wisdom of the Court to ensure that justice is done.

I thank the Court for its kind attention.

The PRESIDENT: Thank you, Your Ex cellency. I now give the floor to

Mr. Tshibangu Kalala.

KAr. ALA:

THE INVASION AND OCCUPATION OF THE DRC BY U GANDA

1. Mr. President, Members of the Court, at the outset, allow me, if you will, to tell you what

a great joy it is for me to plead before such a pres tigious Court as this to defend the interests of my

country in this case. In this connection,must express my sincere gratitude to the Congolese

Government here represented at a senior level byHis Excellency the Minister of Justice and - 12 -

Keeper of the Seals, for giving me an opportunity , and a rare one in the career of a lawyer and

international law specialist , to be part of this exceptionally important experience.

2. In a few days’ time, Uganda is going to seek to play down, if not actually to deny, its role

in the war which has ravaged my country sin ce August 1998. The Respondent will no doubt seek

18 to exonerate itself of its responsibility by accu sing first a foreign State, then Congolese rebel

forces, then Congo itself. But what was the actua l truth of this? If the Court would consult the

map being projected behind me, included in your judges’ folder under tab 1, it will see that Uganda

played a substantial role in the bloody war which ravaged the Congo for over five years. A war

which, let us not forget, claimed some millions of lives.

3. I shall return later to each of the arrows reproduced on the map. For the time being, as

you see on the following map, which you will find in your judges’ folder as No. 2, let me just point

out that the Ugandan army first took part in an airborne offensive in the west, from Kitona air base,

on the shores of the Atlantic Ocean. It also be gan its advance in the east, first in Kivu and then,

above all, in Orientale Province. But Uganda did not stop there, going on to invade Equateur

Province in north-west Congo. After a few mont hs of advances, the Ugandan army had thus

conquered several hundred thousand s quare kilometres of territory, the extent of which the Court

will be able to see on the map being projected behind me, included in your judges’ folder as No. 3.

4. What arguments does Uganda put forward in an attempt to justify such a large-scale

military presence for so long on the territory of the Congo?

5. To begin with, and this is fundamental , Uganda does not deny that its armed forces

penetrated Congolese territory, since they remained th ere for almost five years. On the contrary,

the Respondent prides itself, not without a degree of cynicism, on having taken a large number of

Congolese towns, and on having expelled the offici al authorities from them or on having defeated

1
them there .

6. These facts, which form the basis of the whole case, are therefore accepted by both

Parties. Congo takes note of this and asks the Court to do likewise.

1
CMU, p. 43, para. 54. - 13 -

7. However, while Uganda does not deny the fact of its intervention in the Congo, it seeks to

justify it in law in the name of self-defence. According to the Respondent, the Ugandan

intervention did not begin until after Uganda had been confronted by “grievous and imminent

19 threats to her security”2⎯ as stated in its written pleadings ⎯ caused by the activity of an alliance

between Ugandan rebel groups and the Sudanese army. This “grievous and imminent threat” had

allegedly materialized in August1998. It was allegedly therefore not until September the same

year that the UPDF ⎯ the official name of the Ugandan army, the Ugandan People’s Defence

Forces ⎯ penetrated the Congo, with the sole aim of preventing an attack on Uganda. This

argument calls for a detailed legal reply, which Congo will give tomo rrow, demonstrating in detail

the lack of any basis for the self-d efence argument. However, it also needs to be refuted in fact.

This refutation does not concern the reality of the Ugandan invasion and occupation, accepted by

both Parties, only the form and manner thereof.

8. I shall therefore devote this presentation to the following two points:

first, the Ugandan army did indeed commence its invasion of the Congo from the beginning of

August 1998, and not in mid-September of that year;

second, Uganda’s objective was patently to overthrow the Congolese Government, not with a view

to any form of self-defence.

I. The Ugandan invasion commenced at the beginning of August 1998

9. My first task is to show the Court that Uganda invaded the Congo at the beginning of

August 1998, contrary to what our opponents claim.

10. At first, Uganda was a favoured ally of the new Government of the Democratic Republic

of the Congo. It was thanks to Uganda’s political and military s upport for the former President,

Laurent-Désiré Kabila, that the Congolese pe ople was able to exercise its right of

self-determination, by overthrowing the dictatoria l régime of Marshal Mobutu in May 1997. And

this political and military support continued after th e fall of the former régime. Unfortunately, the

Ugandan Government could not tole rate its former protégé’s attempt to emancipate itself, and it

was from the time when the Congolese authorities sought to regain their full and complete

2
RU, p.9, para.28; see also RU, p.5,para.16, p.40, para.86, p.81, pra.183, p.49, para.106, RU, p.7,
para. 23, p. 35, heading B, and para. 78, p. 75, para. 169. - 14 -

independence that relations betwee n the two countries started to deteriorate. I shall not go back

3
20 over the various stages in this process, which ha ve already been covered in the written pleadings .

Let me simply remind you that, on 27 July 1998, the Congolese President, Laurent-Désiré Kabila,

called upon all foreign troops to leave the country and that it is probably from the time of that

declaration that a final decision to invade the Congo was taken 4.

11. To realize this, one has only to briefly recall the train of events starting on that date and

continuing until mid-September 1998, when Uganda itself admits having intervened in the Congo 5.

In the six weeks constituting this critical period, Uganda takes part in the Kitona airborne operation

from 4August1998 and invades North-Kivu, South-Kivu and Orientale Provinces between 4and

15 August1998. These movements and their approx imate dates, evidence of which will be given

in a moment, are reproduced on the map being s hown on the screen. By mid-September 1998, the

UPDF occupies an area of some 400,000 sq km, almost equivalent in size to France. This diagram

does not claim to reflect precisely the position of all the Ugandan troops, for the very good reason

that, at this time, the Congolese Armed Forces had already been forced out of the area. But it gives

a good indication of the extent of the advance by Ugandan troops at this date.

12. However, with a view to giving its self-defence scenario credibility, Uganda is obliged to

deny these events, nevertheless established by va rious mutually corroboratory sources. Uganda

denies its participation in the Kitona military ope ration and also its military intervention in Eastern

Congo, which it claims not to have launched until mid-September. However, neither of these two

denials is convincing, as I will now show you.

Uganda took part in the Kitona airborne military operation of 4 August 1998

13. First, Uganda took part in the airborne military operation centred on Kitona, a Congolese

military base situated on the Atlantic coast 2,184km from the Ugandan frontier. This operation

consisted in airlifting a number of military units from Goma, in the east of the Democratic

Republic of the Congo, then landing them at Kitona, the plan being to march over land to Kinshasa.

21 As the Court can see on the map now being projected , the Ugandan army thus took part in the

3RDRC, pp. 64 et seq.
4
MDRC, pp. 60-61, para. 2.11, RDRC, pp. 257-259, paras. 3.207-3.210.
5RDRC, pp. 77 et seq. - 15 -

capture of Boma (on 7 Augus1 t998), Matadi (14 Augus1 t998) and the Inga dam

(17 August 1998).

14. With Ugandan and Rwandan troops alread y on the outskirts of Kinshasa, Angola and

Zimbabwe responded to the call from the Congol ese Government to repulse the aggressors.

Caught in a vice by the Zimbabwean troops advancing from Kinshasa and Angolan troops

attacking them in the rear from Kitona, the Ug andan and Rwandan troops crossed into Angola and

took refuge in MaqueladoZombo. It was fro m this Angolan town, and from Matadi in the

Democratic Republic of the Congo, that the Ug andan and Rwandan troops were subsequently

repatriated by air to Entebbe in Uganda and to Kigali in Rwanda.

15. In its written pleadings, Congo has provided numerous items of evidence of Uganda’s

participation in this operation 6. Without recapitulating each of th ese, I would recall the following

points:

⎯ two pilots of aircraft included in the airfiel d between Goma and Kitona, Messrs.JoséDubier

and VialaMbeangIlwa, stated that Ugandan sold iers took part in this operation. These two

pilots are employees of the private companies Congo Airlines and Blue Airlines, which have no

particular link with the Congolese Government 7;

⎯ the commander of Kitona airbase, Mr. Mpele-Mpele, who for over a fortnight witnessed planes

landing and unloading troops and equipment, c onfirmed the involvement of Ugandan soldiers

8
in this operation ;

⎯ the UPDF’s involvement has also been confirmed by Mr.IssaKisakaKakule, a former

Congolese rebel, who was then allied to the Uga ndan and Rwandan armies in connection with

9
this operation ;

22 ⎯ SalimByaruhanga, a UPDF soldier, was ca ptured by Congolese Armed Forces in the

neighbourhood of Kinshasa. His testimony confirms that he was part of the Ugandan force

involved in this operation 10;

6RDRC, pp. 78-86, paras. 2.34-2.45; AWODRC, pp. 62-79, paras. 1.79-1.97.

7RDRC, Anns. 59 and 62.
8
Ibid., Ann. 61.
9Ibid., Ann. 57.

10Ibid., Ann. 63. - 16 -

⎯ the Congolese Armed Forces also salvaged a tank which the Ugandan Army had been forced to

11
abandon as it fled ;

⎯ these different direct sources have been conf irmed by nine different journalistic sources 12, as

well as by various statements by Ugandan personalities 13.

16. Notwithstanding these many mutually corro boratory sources, Uganda has chosen, in its

Rejoinder, to persist in denying the evidence. The few arguments to which the Respondent clings

have already been answered by the Congo in its Additional Observations, and I shall not rehearse

14
each one of them . However, let me revert to two particularly decisive elements.

17. First, the testimony of the Ugandan prisoner, Salim Byaruhanga. In its written pleadings,

Uganda has produced an affidavit by the person w ho was then Acting Chief of Staff of its Armed

Forces, who testifies under oath that this prisone r never existed, or more precisely that he was

never a member of the Ugandan Armed Forces. In the words of this document, “the UPDF did not

then and does not have now a soldier in its ranks by the name of Salim Byaruhanga” 15. From this

16
Uganda concludes that this prisoner represents a mere “figment of somebody’s imagination” .

23 18. Mr. President, Members of the Court, Mr. Salim Byaruhanga does indeed exist. And he

was indeed captured by the Congolese Armed Forc es in the neighbourhood of Kinshasa. Allow

me, if you will, in this connection to remind you of the following four points:

⎯ first, a record was made by the Congolese Ar my’s intelligence services concerning Ugandan

soldier Salim Byaruhanga when captured, on 23 October 1998 17;

⎯ second, a document prepared by the Interna tional Committee of the Red Cross mentions a

18
certain Salim Byaruhanga among the four Ugandan prisoners visited at Kinshasa . You have

11Ibid., pp. 81-82, and photos 1 to 4.

12Herbert Weis, War and Peace in the Democratic Republic of Congo (quoted in the Congo Reply, p.82,
para. 2.42), New Vision, 14 May 2000 (ibid., Ann. 12), Colette Braeckman, L’enjeu congolais (quoted in ibid., pp. 82-83,
para. 2.42), Gérard Prunier, “L’Ouganda et les guerres congolaises” (quoted in ibid., p. 83, para. 2.42), Wayne Madsen,

Genocide and Covert Operations in Africa 1993-1999 (quoted in ibid. , p.83, para.2.42), AFP, telegram of
2 September 1998, ibid., Ann.23, IRIN, 28/8/98 , Congo Reply, Ann.108, La lettre de l’océan Indien , week of
12 September 1998, ibid., Ann. 21, P. Babancey, Grands lacs : fragile renaissance africaine, ibid., Ann. 28.
13
Ibid., Ann. 66.
14
AWODRC, pp. 62-79, paras. 1.79-1.97.
15RU, Ann. 107, para. 12.

16Ibid., p. 61, para. 139.

17RDRC, Ann. 63, p. 3.
18
Ibid., Ann. 67, p. 3. - 17 -

before you an extract from this document , included as No.4 in your judges’ folder,

Salim Byaruhanga is second on the list;

⎯ third, the repatriation of the Ugandan prisoners in September 2001 was reported by a despatch

from the African press agency PANA of 17September2001, which quotes a certain

Salim Byaruhanga among the prisoners repatriated to Uganda on that date 19;

⎯ fourth, the presence of a certain SalimByaruhang a in a Kinshasa prison is confirmed by the

video recording of an interview with Uganda n prisoners by Ugandan M.P.AworiAggrey on

5 July 2000. In it, this member of parliament is seen conversing with, among others, a certain

SalimByaruhanga, in a Ugandan dialect. The pr isoner tells how he was sent to and captured

on the western front and about the advance by the Ugandan Army on the Kitona-Kinshasa axis

at the beginning of August1998. A copy of th is video cassette was filed with the Court and

communicated to the Respondent at the appropriate time 2.

19. So, in other words, the Ugandan soldier Salim Byaruhanga does not exist, yet his name is

nevertheless found in the documents of the International Committee of the Red Cross and he can be

seen, in flesh and blood, describing the participation of the Ugandan Army in the Kitona operation!

24 20. Mr. President, Members of the Court, in repeating the words of the Chief of Staff of its

Armed Forces denying the existence of SalimBy aruhanga, Uganda has produced testimony made

under oath which is patently at odds with reality . The Republic of the Congo has no idea why, in

its written pleadings, the Respondent went to such le ngths. It is clear that the capture of this

prisoner over 2,000km from the Ugandan front is enough to discredit completely Uganda’s

argument. Yet the Congo hopes that, in the cour se of the present proceedings, Uganda will finally

admit that SalimByaruhanga is not a figment of the imagination of anyone, neither of the Congo

itself, nor of the International Committee of the Red Cross, nor of the others who met him while he

was still in detention.

21. Be that as it may, the clumsy attempts by Uganda to brush aside the other sources

attesting to its participation in the Kitona operation are devoid of all credibility in the

circumstances. Uganda seems moreover to have returned to its senses, since it has not sought to

19
AWODRC, Ann. I.
20
Ibid., Ann. 4. - 18 -

contest several neutral sources confirming its particip ation in the Kitona operation. To take just

three examples, the Rejoinder says nothing at all about a dispatch from Agence France Presse, an

official report of the United Nations integrated information network, and an article from the

Ugandan pro-government newspaper New Vision, all of which confirm Uganda’s participation in

21
the Kitona airborne operation .

22. Uganda’s participation in the Kitona airborne operation can certainly no longer be

seriously disputed today. From 4 August 1998, Uganda was involved in a massive invasion of the

Congo from the far west of its territory. At the same time, the Ugandan ar my entered the extreme

eastern corner of the country by land. That is the episode to which I would now like to draw the

Court’s attention.

The UDPF invaded the eastern part of the Congo’s territory at the beginning of August 1998

23. Early in August1998, Uganda launched a full-scale military operation under the code

name “Safe Haven”. The Ugandan Brigadier James Kazini, whose name will be heard by the Court

repeatedly when the plundering of the Congo’s na tural resources is addressed, was in charge of the

operation.

25 24. This operation was conducted along three axes throughout the month of August 1998.

⎯ The first line of advance, represented on this map, started from the town of Bukavu, in

SouthernKivu, which was taken by the Uga ndan and Rwandan armies on 4 August 1998.

From that date, the Ugandan army participated in the invasion of Congolese territory in the

direction of the town of Kindu, in Maniema Province.

⎯ The second thrust was launched from the Kasindi border post, in Northern Kivu, as the Court

can see on this map. The UPDF overran the to wn of Beni on 6August1998, then overran

Butembo, and marched on the town of Bunia, which was occupied on 13 August after fighting

in the localities of Komanda on 11 August and Nyakunde on 12 August 1998.

⎯ The third thrust was launched from the border post of Aru, as the Court can see on this map.

Columns of Ugandan soldiers entered Congolese territory at the beginning of August and

21
RDRC, Anns. 12, 23 and 108. - 19 -

advanced westwards into the mining region, wher e gold is intensively worked. They rapidly

overran Sesenge, Durba, Watsa and Isiro.

25. These events have been established on the basis of numerous statements by soldiers of

22
the Congolese Armed Forces, who were direct witnesses of the Ugandan invasion . These are the

main events which, in the early days of August 1998, led the Congolese Government officially to

23 24
accuse Uganda of aggression, whether in press conferences , at the Victoria Falls Summit or at

the United Nations 2.

26. What is Uganda’s position on this matter? Tr ue to the radical strategy it appears to have

elected to follow, the respondent Government makes a blanket denial of these allegations. Uganda

has the audacity to claim that no Ugandan so ldier crossed the Congolese border between 2 August

and mid-September1998. In support of these assertions, it puts forward three arguments, all of

which are equally futile.

27. First of all, Uganda considers that the witness statements relied upon by the Congo do

not serve to substantiate the scenario that has just been described. Uganda does not deny that the

26 witnesses in question, Congolese soldiers defeated by the UPDF, were in the field, nor does it even

deny that their statements are genuine and reflect th e real state of affairs. It simply claims that

these Congolese soldiers never stated that Uganda had invaded the Congo. According to the

Rejoinder: “none of the referenced statements mentions anything about other contingents of the

UPDF penetrating Congolese territory through the Aru border post (or any other location) at any

26
time” .

28. Mr.President, Members of the Court, we need only refer to one of the statements

concerned in order to gauge the weakness of the Ugandan argument. The statement by

RogerKapotola, a member of the Congolese Armed Forces who at the time was serving on the

north-east front, mentions the following:

22
RDRC, Anns. 46 et seq.
23
IRIN 477, 31/7-6/8/98, RDRC, Ann. 108 and ibid., p. 173, para. 3.58.
2See CMU, Ann.31, p.14 (section entitled “D RC allies”) and pp.3-4 (section entitled “DRC under

H.E. Kabila”.
2United Nations, 13 August 1998, RDRC, Ann. 41 and ibid., pp. 173-174, para. 3.58.

2RU, p. 67, para. 154. - 20 -

“On 15August1998, we learnt that the 53rd battalion commanded by Nzigo
had been attacked by a column of Ugandan tanks at Aru . . . The first enemy contact
with elements of the GOLF regiment would take place at Aba with the Ntumba

company which had repelled it. Following that contact27ith the Ntumba company, the
enemy had moved off in the direction of Watsa.”

29. Let us return to the map, Members of the Court: Aru, Aba, Watsa, these are precisely the

localities which form the third front opened up by the Ugandan Army. These are the localities that

are cited by that Congolese soldier. It is indeed an attack by a column of Ugandan tanks in the

border locality of Aru which is mentioned, an d the date is 15August1998. Other witness

statements by Congolese soldiers bear this out. They describe the advance of Ugandan tanks and

28
the fighting, followed by the retreat of the Congolese Armed Forces . There is no point at this

stage in dwelling on them individually. On the other hand, the interpretation given to them by our

opponents can only be a matter of surprise.

30. But Uganda puts forward a second argumen t, which it describes as decisive, indeed

irrefutable. Again, I cite the Rejoinder: “the documentation of the UPDF High Command’s

decision to send troops into the DRC dated 11 September1998 constitutes irrefutable proof that

Uganda’s actions in the DRC were undertaken long after the rebellion against Congolese

29
27 Government had broken out in August . . .” . The only “irrefutable proof” put forward by Uganda

thus consists of a confidentia l internal document, unilaterally drawn up by its own army, and

entitled “Position of the High Command on the Presence of the UPDF in DRC”. The importance

of this document is alleged to be considerable since, again according to Uganda, it bears witness,

according to the terms of the Counter-Memorial, to its “decision to augment its forces in eastern

Congo and deny Sudan control of the region’ s airfields and river ports... made on

30
11 September 1998 . . .” .

31. Mr. President, Members of the Court, you will find Uganda’s “irrefutable proof” in your

judges’ folder, at tab 5. Allow me also to project the main extract therefrom. The Court will agree

with me that there is absolutely nothing in this document to indicate that it demonstrated Uganda’s

2RDRC, Ann. 51.
28
Ibid., Anns. 52, 53, 55.
29
RU, p. 67, para. 155, reference omitted, emphasis added by the DRC.
3CMU, p. 41, para. 53. - 21 -

intention to send additional troops to the Congo as at 11September1998. On the contrary, and I

cite the most relevant passage:

“Now therefore the High Command s itting in Kampala this 11th day of
September, 1998 resolves to maintain for ces of the UPDF in the DRC in order to
secure Uganda’s security interests . . .” 31

The High Command expressly seeks to justify the “ maintenance of the UPDF forces in the DRC”.

The “maintenance” of the forces, and not the depl oyment of additional forces or the augmentation

of forces. The forces in question had therefore, at that date, already been sent into Congolese

territory. The admissibility of this document as evidence is at the very least open to doubt,

inasmuch as the document itself claims only to reflect the “position of the Ugandan High

Command”. However, accepting that its content is mostly of scrutiny, there will certainly be found

no indication to support the thesis of a “turning po int on 11 September”, as claimed by Uganda in

its pleadings.

32. Finally, Uganda deploys a third argument, which is also implicit in the document we

have just been discussing. According to the respon dent State, the arrival of its army in certain

Congolese localities only involved a number of soldiers already stationed in the DRC in the context

of co-operation between the two countries al ong the common frontier bordering the Ruwenzori

28 Mountains. Yes, Mr.President, Uganda finally admits that its army entered several Congolese

localities at the beginning of August1998. In its Counter-Memorial, it states that it “secured” ⎯

our adversaries are well versed in the art of euphemism ⎯ Beni on the 10th of that month 32.

Uganda then admits, and again I cite the Counter-M emorial, that: “the UPDF occupied Bunia and

took over its airfield on 13 August” 33.

33. Beni is a town with more than 100,000 inha bitants. Bunia has an even larger population.

As Uganda itself acknowledges, these towns were occupied by its armed forces in

mid-August 1998. This admission is hardly reconc ilable with the claim that the invasion was only

decided and, more particularly, implemented, nearly one month later. It was in mid-August that the

Ugandan army attacked major Congolese towns. Uganda admits this in the case of Beni and Bunia

31Ibid., Ann. 27; emphasis added by the DRC.
32
Ibid., p. 37, para. 47.
33Ibid., p. 38, para. 48. - 22 -

and denies it in regard to other towns. The important thing at this stage, though, is to show that the

invasion and the occupation actually began well before mid-September.

34. Mr President, Members of the Court, the Congo admits having faced real difficulties in

selecting evidence to establish that the date of the Ugandan invasion was in fact 2 August 1998, so

abundant and ⎯ I weigh my words ⎯ irrefutable is the evidence in question. I would thus be

remiss if I did not tell the Court of the decisive information on this point provided by the work of

the judicial commission of inquiry set up by the Ug andan authorities to shed light on the problem

of the plundering of the Congo’s natural resources. This Commission, chaired by a British judge,

DavidPorter, heard numerous Ugandan official s who testified under oath. The Congo will of

course return to a number of these witness statements when it deals with the plundering of natural

resources. But what is interesting at this stage is that several of these witness statements serve to

confirm the date of initiation of the invasion a nd occupation of the Congo. And these statements

confirm very clearly that this armed intervention took place from the beginning of August 1998.

35. Let us begin with the testimony of Mr .Kavuma, who became Minister of State for

Defence in Uganda from the month of November 1998. The first relevant extract from his

29 statement is projected behind me and is contained in the judges’ folder at tab 6. I shall read out that

extract:

“Mr. Kavuma: The troops had moved into the Congo shortly before I joined the

Ministry. A few months I think. When I went the troops were already in Congo.

Justice Porter: That would be about in August 1998?

Mr. Kavuma: That’s right, my Lord.” (CW/01/02 23/07/01, p. 23.)

In August 1998, Mr. President, and not on 11, 15 or 20 September.

36. But could it be that the witness spoke hastily? Let us now refer to a second extract from

his testimony, reproduced at tab 7 in the judges’ folder.

“Justice Beko: When did UPDF go to Congo?

Mr. Kavuma: Why?

Justice Beko: When? When did UPDF enter Congo?

Mr. Kavuma: 1998, My Lord.

Justice Beko: August ’98. - 23 -

Mr. Kavuma: Yes.” (CW/01/02 23/07/01, p. 38.)

The least that can be said is that the witness could not have been mistaken about the question

asked. It concerned when the Ugandan troops had entered Congolese territory and the reply was

“August1998”, Mr. President, and not mid-Septem ber, which is again confirmed by another

passage from this witness statement, on which I shall not dwell at this stage, but an extract from

which will be found by the Court in the judges’ folder, at tab 8 3.

37. Mr.President, Members of the Court, the statements I have just read out to you were

made by a former Minister of State for Defence, i.e. the highest position in the military, alongside

President Museveni himself. They certainly suffice to establish genuine admissions on the part of

Uganda on this point.

38. And this is particularly true in that this testimony is far from being isolated, as is attested

by the statement by Lieutenant Colonel Seneka nsi Mugenyi, who supervised and commanded the

30 UPDF’s activities in the Isiro area. The Court will find the relevant extracts in the judges’ folder,

at tab 9. But I shall read out an extract:

“Lead Counsel: Were you at any time deployed in the Democratic Republic of
Congo?

Lt. Col. Mugenyi: Yes.

Lead Counsel: When was that?

Lt. Col. Mugenyi: That was 13th August 1998 . . .

Lead Counsel: How did you get to Isiro on the day of your deployment?

Lt. Col. Mugenyi: We footed from the border up to Isiro because we were
fighting.” (CW/07/03 28/08/01, pp. 755 and 756.)

39. Lieutenant David Livingstone Okumu, another UPDF officer, provided the same

response. His remarks are reproduced in the judges’ folder, at tab 10. And I quote:

“Justice Porter: You were deployed in the DRC on what date.

Lt. Okumu: On the 13th.

Justice Porter: Of what?

Lt. Okumu: On the 13th August.” (CW/07/04 29/8/01, p. 774.)

34
Justice Porter: August the 12th. Which is vesoon after. Mr. Kavuma: Yes. After the troops⎯ out
troops ⎯ went into the DRC . . .” (CW/01/02 23/07/01, p. 50.) - 24 -

On 13August1998, and not on 15 or 20Septem ber, Ugandan forces did indeed cross the

border, despite the decidedly unconvincing denials of our opponents.

40. But let us now turn to the version presente d to the judicial commission of inquiry by the

commander of “Operation Safe Haven”, GeneralKazi ni himself. The Court will find an extract

from his testimony in the judges’ folder, at tab 11. Here are the main extracts:

“Lead Counsel: And when was ‘ope ration Safe Haven’? When did it
commence?

Brigadier J. Kazini: It was in the month of August. That very month of

August1998. “Safe Haven” started after the capture of Beni, that was on
7th August 98.” (CW/01/03 24/7/01, p. 128.)

So it was clearly on 7August1998 that operation “Safe Haven” was launched, and not on

15 or 20September, following a decision purpor tedly taken on 11September1998, as is today

alleged by Uganda.

31 41. Finally, I cannot fail to note that PresidentMuseveni himself, who testified before the

judicial commission of inquiry, confirmed this version of the facts. Confronted with the date of

2August1998 as the one that marked the beginning of the war, the President of the Republic of

Uganda acknowledged that his country’s involvement had begun “five days later”. He referred in

particular to operation “Safe Haven”, which had involved the taki ng of Beni on 7 August, Buni on

13August, Wasta on 29August and Kisangani (C W/01/15 16/8/01, pp.639-640). For further

details the Court may refer to the relevant extracts in the judges’ folder, at tab 12.

42. Mr.President, Members of the Court, the Congo genuinely wonders whether Uganda

will continue to deny what its highest representatives have expressly admitted. I would remind you

that all these Ugandan political and military offici als were testifying under oath, before a judicial

commission of inquiry set up under the auspices of the Ugandan authorities themselves. I would

also point out that Uganda, in its Rejoinder, cites several extracts from some of these witness

statements 35. Will the respondent State resort to disputing testimony that it cites itself in its own

pleadings? It will be for Uganda , in the context of the oral ph ase of these proceedings, to assume

its responsibilities in this regard.

35
RU, pp. 76-78, paras. 173-174; ibid., Ann. 60 - 25 -

43. The witness statements before the judicial commission of inquiry also serve to confirm

not only when, but also how, the Ugandan army’s involvement began. The front opened up in the

extreme north of the country is thus specifically mentioned by Lieutenant Colonel John Waswa of

the UPDF. The Court will find this statement in th e judges’ folder, at tab13. Here are the main

extracts:

“7 infantry Bn operational force entered DRC at a place called Aru on
10/8/1998. The Unit had an attachment of one Coy from 49 Bn and one platoon from
15 Bn.

The force left Aru on 14Aug1998 a nd went to Watsa via Duruba 250kms
away from the Uganda-Congo border. The force spent one day at Duruba i.e.
23Aug1998 and proceeded to Watsa wh ich is 40kms where we arrived on
36
24 Aug 1998.”

32 44. This statement is confirmed by yet a nother Ugandan officer, Colonel Kerim, who was

posted to Aru and who affirms under oath that he arrived in the DRC on 15August1998. His

37
statement is reproduced in the judges’ folder, at tab 14 .

45. What is the significance of these statem ents? I will project the map of the area

concerned once more. It shows the Aru-Watsa ad vance, based on the testimony of Congolese

soldiers defeated by the UPDF on the ground. Th is same advance, which Uganda claims has its

origins in the Congolese imagination, is confirme d by a soldier who was on the other side, the

Ugandan Lieutenant-Colonel John Waswa, and by Colonel Peter Kerim, a senior UPDF officer.

46. Other testimony provides further confirma tion that the Congo was invaded both by land

and by air from August 1998. Thus an official of a private airline which had collaborated with the

UPDF confirmed that there had been flights as from that date. I quote: “We started going to DRC

with the Ministry of Defence from August 98 up to 2000 (CW/02A/7-13, p. 1545).” The relevant

excerpt can be found in the judges’ folder, at tab 15.

47. Mr. President, Members of the Court, I do not know whether Uganda will accuse all

these persons, including its own Head of State, of giving false testimony, or whether it will claim

that its officers, most of whom were in fact on the ground, were misinformed or were victims of a

general dateconfusion syndrome or will even assert, as in the case of its prisoner captured in

36
The CMI, UPDF GHQS, “Re: Brief Report on Activities on DRC”, Annexture G, Porter Commission Report.
37“Assistant Lead Counsel: When were you first deploy ed in the DRC? Col. Kerim. On 15thAugust1998.”

(CW/05/05 6/9/01, p. 1375.) - 26 -

Kinshasa, that the UPDF knows no-one of the na me of JohnWaswa or PeterKerim: why not

James Kazini or even Yoweri Museveni?

48. But it is of little consequence. Any bona fide observer can now no longer have any doubt

that the invasion and subsequent occupation of the Congo commenced at the beginning of

August1998. The thesis of an interven tion launched only from mid-September1998 is

contradicted by numerous witnesses, both Congolese and Ugandan, as well as by many documents

and by neutral and impartial sources. Uganda cannot have responded to an alleged attack or threat

33 directed against it in August 1998, for the good an d simple reason that it was Uganda that invaded

Congolese territory first. Thus the argument of sel f-defence is completely incompatible with the

historical truth. Moreover, and so I come to th e second part of my argument, it is obvious, in light

of the way it was conducted, that the Ugandan in tervention’s aim was quite simply to overthrow

the Congolese Government.

Mr. President, if you wish I can break off my presentation at this stage and resume it after

the break.

The PRESIDENT: Yes, indeed, you may stop here for the moment. I thank you, Mr. Kalala.

The Court will have a recess of ten minutes, after wh ich I shall give the floor to Mr.Kalala to

continue his statement.

The Court adjourned from 11.25 a.m. to 11.35 a.m.

The PRESIDENT: Please be seated. Mr. Kalala, you may continue, please.

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

II. In light of the way its intervention was conducted, the aim of Ugand
a was

obviously to overthrow the Congolese Government

49. In this second part of my argument I w ill put to you that, given the way its intervention

was conducted, the aim of Uganda was clearly to overthrow the Congolese Government.

Mr. President, Members of the Court, it is no part of my intention to probe the psychology of the

Ugandan leadership. I should like to confine myself here to the facts, and only to the facts. It is a

matter of fact that the Congolese army advan ced several hundred kilometres into Congolese - 27 -

territory. The economic, political, logistical a nd military support given by Uganda to Congolese

irregular movements created for the occasion at the beginning of the war is also a matter of fact.

From the viewpoint of these two factors, which I will now examine in detail, there is really no

doubt that the aim of Uganda was to overthrow the lawful government of the Congo by force.

34 The UPDF advance into Congolese territory: the attempt to encircle Kinshasa

50. As to the first of these factors, all that is required is to refer to these few maps in order to

understand the UPDF’s strategy of encircling the capital. Since these movements have been

38
described in detail in the documentation , I will confine myself here to a few events of particular

significance, illustrated on the map displayed behind me. This time the period covered extends

beyond August and September 1998:

⎯ arrow No. 1 shows the abortive incursion from Kitona, on the Atlantic coast;

⎯ arrow No. 2 then shows how the Ugandan army left Kisangani to advance westwards, towards

Mbandaka;

⎯ arrow No.3 shows the movement of troops fro m Lisala northwards as far as Gbadolite, then

southwards straight towards the Congolese capital.

51. Uganda admits that its army was involved in several of these movements, particularly the

39
second and part of the third . In its documentation, Uganda accepts that it had penetrated

Congolese territory as far as the localities shown on this map:

⎯ Beni 40,

41
⎯ Bunia ,

⎯ Isiro 42,

43
⎯ Buta ,

44
⎯ Dulia ,

3RDRC, pp. 87 et seq.
39
Map reproduced in the RU, p. 80bis; CMU, pp. 42-43, para. 54, pp. 49 et seq.
40
CMU, p. 37, para. 47.
41
Ibid., p. 38, para. 48.
4Ibid., p. 42, para. 54.

4Ibid.
44
Ibid. - 28 -

45
⎯ Bumba ,

46
⎯ Lisala ,

⎯ Businga 47, and

48
35 ⎯ Gbadolite .

52. Thus these facts are clearly acknowledged by both parties, and Congo begs the Court to

take formal note thereof.

53. However, Uganda disputes its involvement in certain attacks. For example, it denies any

involvement in the Kitona airborne operation, in vain, as we have already seen this morning.

54. Uganda also denies continuing its military engagement in the Congo after the conclusion

of the Lusaka Ceasefire Agreement on 10July1999. If it is to be believed, this date marked the

end of its involvement in military action in Congolese territory 49. This assertion is surprising to

say the least, if one recalls the bloody battles in Kisangani, not only in June 1999 but also in May

and June 2000 ⎯ but it is true that our opponents are doing everything possible to ensure that these

are forgotten. These are far from being minor or trivial events. The fi ghting in question caused

hundreds of fatalities 50and led the Security Council to condemn Uganda for these acts 51, and led

the Court itself to indicate provisional measures in its Order of 1 July 2000.

55. However Uganda, always anxious to minimise its role, is still claiming that, with less

than 10,000troops on the ground, it did not have the military capability to conduct all these

52
operations . Thus Congo was allegedly greatly exaggerating the extent of the UPDF movements.

56. And yet Mr.President, Members of the Court, the map before you does no more than

reflect the real situation. It is true that the Ugandan army did not act alone in conducting these

actions and that it used an auxiliary military force, the “Mouvement de libération du Congo” ,

numbering several thousand troops. Here I wish to quote the words of the leader of the MLC,

4Ibid., p. 43, para. 54.

4RDRC, p. 95, paras. 2.71-2.72.
47
CMU, p. 43, para. 54.
48
Ibid., p. 50, para. 63; RDRC, p. 96, para. 2.72.
49
Ibid., p. 50, para. 64; RU, p. 79, para. 176.
5RDRC, pp. 321-322, paras. 5.16-5.17.

5Resolution 1304 (2000), MDRC, Ann. 6.
52
RU, pp. 75-76, para. 170. - 29 -

which was involved on the ground in a large number of actions in the north-west of the Congo.

36 Speaking of the support given to him by the Uganda n President after the conclusion of the Lusaka

Ceasefire Agreement ⎯ so after 10 July 1999 ⎯ this direct witness states that:

“his troops [the Ugandan President’s troops ] supported my fighters with artillery and
logistics as they advanced northwards in the Congo towards Mbandaka. Uganda had
withdrawn its support to the forces of RCD/Goma in order to concentrate on Orientale
53
Province and Equateur.”

In another excerpt from his book, the supreme leader of the MLC confirmed that Uganda had

changed its strategy in that summer of 1999:

“In mid-July [and this is certainly 1 999], PresidentMuseveni confirmed to me

that Ugandan troops were going to withdraw from Congo and encouraged me to step
up the recruitment and training of fighters. Ugandan instructor officers were
54
temporarily assigned to help me to strengthen our military capability.”

57. It is clear, on reading the statements by this central player in the conflict, that the

Ugandan army took an active part in the actions that took place in Equateur Province, in 1999 and

subsequently in 2000. The leader of the MLC conf irms this in another passage, in which he gives

an account of the battle of Ubangui in June 2000. As the MLC forces were on the point of defeat,

their leader obtained the support of the Ugandan ar my. I quote his words: “A UPDF battalion was

55
sent from Gemena as reinforcements.” The Congolese forces thus lost the battle; according to the

same source, the Congolese 10thbrigade lost “8,000men, drowned or burned” 56 as a result of

artillery fire supplied by Uganda. These ev ents were confirmed by a report of the

Secretary-General of the United Nations: “Follo wing the reinforcements reportedly received by

units of the Ugandan People’s Defence Force (UPDF), MLC launched a major counter-attack in the

south of Libenge, resulting in a high number of casualties.” 57

58. Mr. President, Members of the Court, the troop movements that you see represented on

this map, included in the judges’ folder at tab16, do not have their origins in the Congolese

imagination. They were no picnic, either for the Ugandan troops or, still less, for the Congolese

37 civilians or military who were unlucky enough to be in their path. There is no time here to pay the

53Le choix de la liberté, Gbadolite, ed. Vénus, 2001, p. 107; RDRC, Ann. 68.

54Ibid., pp. 150-151.
55
Ibid., p. 84.
56Ibid., p. 85.

57S/2000/888, 21 September 2000, RDRC, Ann. 29. - 30 -

tribute that they deserve to the thousands of C ongolese soldiers and civilians who paid with their

lives for choosing to resist. Excuse me, Mr. President, for expressing my feelings before the Court,

but it is an insult to their memory to claim today that their deaths were justified by a “grievous and

imminent threat” endangering the frontiers of Ugan da, frontiers which, it should be stressed, lie

several hundred, if not thousands of kilometres fro m the theatres of operation. Mr.President,

Members of the Court, look at this map once more for the last time: one does not need to be a great

strategist to understand that Uganda’s real ai m was to topple the Congolese Government, and

nothing less.

59. This conclusion is all the more obvious in that, as I will demonstrate in the final part of

this presentation, Uganda gave massive support to Congolese movements whose stated aim was to

topple the lawful government of the Congo.

Uganda’s massive support to irregular movements seeking to overthrow the lawful
Government of the Congo

60. Uganda did not act alone in the “Saf e Haven” operation. From early August1998

Uganda helped to create and subsequently to build up the “Rassemblement congolais pour la

démocratie” (RCD), a rebel movement which was intended to overthrow the lawful Government of

Congo. Faced with the complete lack of popular support for this movement, Uganda then created

and supported another, the “Mouvement de libération du Congo” , to which I referred a short time

ago. Subsequently the Ugandan authorities con tinued to act through various movements, which

they created or split to suit their interests. Congo has described these events in its documentation 5,

so I will not do so again today.

61. In its Counter-Memorial, Uganda initially refused to recognize these facts 59. However,

Congo observes that, in its Rejoinder, Uganda has finally admitted supporting Congolese rebel

38 movements. Contrary to expectation, the Responde nt claims even now that it “has never denied

60
providing assistance to these groups” , and continues:

5Ibid., pp. 106 et seq.
59
CMU, pp. 90-91, paras. 138-142.
6RU, p. 80, para. 180. - 31 -

“Uganda has provided assistance to the MLC and the RCD. While the
assistance has been largely political in nature , it has also included the provision of

military training and supplies. There have also been occasions when the troops of
these Congolese rebel organisations fought alongside and in coordination with
Uganda’s armed forces in military actions . . .” 61

62. Congo can only welcome this admission, and begs the Court to take formal note thereof.

63. It is true that Uganda attempts to minimise its role in this area, putting forward two

arguments, neither of which stands up to analysis.

64. Firstly, Uganda describes its military suppor t as incidental, marginal. This argument has

already been refuted a short time ago, when I referre d to the role of the UPDF in action against the

Congolese armed forces in close coordination with th e MLC. It was in effect thanks to Ugandan

military support that this force was able to make headway in Congolese territory.

65. Secondly, Uganda claims that it only bega n to support rebel movements militarily long

62
after the start of the conflict .

66. Thus Uganda puts the start of its military support to the MLC at the end of

63
September 1998. . Congo does not dispute this, but draws the attention of the Court to the fact

that this is precisely the date when the MLC was created. In other words, it is clear that the MLC

could only have been created and built up with support from Uganda 64.

67. In the case of the RCD, Uganda’s version is less assured. The Respondent claims that

“Uganda’s relationship with the RCD was stric tly political until after the middle of September 65,

but asserts at the same time that “Uganda’s military support for the RCD did not begin until

66
March 1999” .

39 68. In truth, it was at the beginning of Augus t 1998, not in mid-September 1998, still less in

March 1999, that Uganda began to support Congolese rebel movements. At this stage I should like

to return to the testimony of JamesKazini, th e Ugandan brigadier who led Operation “Safe

61Ibid., p. 81, para. 182.
62
Ibid., pp. 81 et seq.
63
Ibid., p. 82, para. 187.
64RDRC, pp. 115-116, paras. 2.110-2.111.

65RU, p. 68, para. 157.

66Ibid., p. 83, para. 189. - 32 -

Haven”, before the Commission of Enquiry chaire d by JudgePorter. The Court will find the

relevant excerpt in the judges’ folder at tab 17:

“Lead Counsel: so can you briefly explain to the commission what “Operation

Safe Haven” was about?

Brigadier James Kazini: “Safe Haven”. This was now an operation... The
operation was code-named “Safe Haven” because there was a need to change in the

operational plan. Remember, the earlier plan was to jointly ⎯ both governments ⎯ to
jointly deal with the rebels along the border ; that was now the UPDF and the FAC.
But now this new phenomena that developed: there was a mutiny, the rebels were
taking control of those areas. So we decided to launch an offensive together with the

rebels, a special operation we code-named Safe Haven. That is why we came to do all
that. I hope I am clear, Sir.” (CW/01/03 24/7/01, p. 129).

69. The words could not be clearer. Yes, Mr. President, Members of the Court, you have

quite understood, the leader of Operation “Safe Haven” describes it as follows: “So we decided to

launch an offensive together with the rebels”–– a military offensive together with Congolese

mutineers, and we are in August1998, August7 to be precise, for I would remind the Court that

this was the very date on which, according to this witness, the operation began. In these

circumstances Uganda can no longer seriously maintain that it only began to support the rebels in

September 1998, still less in March the following year.

70. This is all the more obvious because, as I demonstrated to you a short time ago, on

4August1998 Uganda participated in the Kitona airborne operation, an operation that also

involved Congolese mutineers. It is clear that at that date Uganda had worked out a strategy

seeking to use Congolese military forces, as it had alr eady done in the past. This alliance between

Uganda and Congolese rebel movements has been recognised by many independent sources,

reproduced in Congo’s documentation. All I wish to do here is to restate the words of the Special

Rapporteur of the United Nations Commission on Human Rights: “On 2 August 1998, war broke

out in the Democratic Republic of the Congo ... An unknown group, later known as the

40 Rassemblement congolais pour la démocratie (RCD), attacked the De mocratic Republic of the
67
Congo with the support of Rwanda, Uganda . . .

71. Uganda decidedly has a most peculiar view of the truth, a view which is in fact shared by

no-one, not by Congo, not by the neutral and indepe ndent sources that have studied the matter, not

67
MDRC, p. 100, para. 2.116. - 33 -

even by the senior Ugandan officials who testified on oath before a judicial commission of enquiry

set up by the Ugandan authorities themselves.

72. The argument of self-defence is based on the theory of the 11September1998

turning-point. According to the scenario put forward by Uganda in its pleadings, it was only from

that date that the UPDF penetrated Congolese territory, because of a “grievous and imminent

threat” alleged to have manifested itself at that time along Uganda’s borders. This scenario rests on

a misconception of self-defence in legal terms, as Professor Olivier Corten will explain tomorrow,

but in any event it is founded on a completely err oneous basis of fact, for it is obvious, in the light

of the many factors that I have just described, that the Ugandan invasion and occupation started at

the beginning of August1998, i.e., at a time when even Uganda would seem to admit that in no

circumstances could it claim to be in a position of self-defence. Similarly, the immediate and

substantial support given to Congolese rebels, who received training, equipment and direct military

support from the UPDF from the start of the war, in August1998, makes the Ugandan scenario

quite simply indefensible. The aim of the war waged by Uganda in the Democratic Republic of the

Congo was to topple PresidentLaurent-Désiré Kabila ’s régime and to exploit illegally the natural

wealth of the Congo. The argument of self-defence maintained by Uganda, Mr.President,

members of the Court, has no serious, , credible foundation.

Mr. President, Members of the Court, I thank you for your attention and beg you to call my

colleague, Professor Jean Salmon, to the bar of the Court; he will demonstrate to you the particular

significance of this case by setting out the fundamental rules of international law that have been

violated by the Ugandan State. Thank you.

41 The PRESIDENT: Thank you, Mr. Kalala. I now give the floor to Professor Salmon.

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

T HE PARTICULAR SIGNIFICANCE OF THE CASE

1. It is always a great honour to return to this Hall. On this occasion I owe that honour to the

confidence which the Democratic Republic of the Congo has been kind enough to place in me. - 34 -

2. The case before the Court today is a particularly significant one ⎯ doubly so, on account

both of the scale of the injury suffered and of the grave violations of international law involved.

3. International lawyers deal in abstractions : use of force, aggression, non-intervention.

They expound learnedly upon the conditions governing these concepts: on their definitions, on the

forms which they take. They live in the saniti zed, cosseted world of words, expressions, chapter

headings, sections.

But what is really involved?

In this case, it is clear to those involved that Uganda’s resort to force and aggression against

the territory of the Congo has been on a substan tial scale. A good third of Congolese territory has

been occupied by Ugandan forces alone. The duration of the war, too, has been substantial. The

invasion of Kuwait lasted a mere six months, the Afghanistan war was over in six weeks, as was

that in Iraq, although the occupation continues. The Ugandan occupation lasted five years. For the

Congolese forces opposing it, the invasion has resulted in tens of thousands of deaths and as many

again of wounded, who will suffer the physical and human consequences for the rest of their days.

The civilian population has, to a quite disproporti onate extent, seen its most elementary rights

swept aside. The country’s infrastructure has been devastated, its natural resources plundered.

4. The present proceedings are significant, too, for the scale of the violations of international

law involved. The Court is being asked to ru le here on the most fundamental principles of

international law, which certain isolated voices seek today to call into question by reducing their

scope or by seeking to redefine the defences to State responsibility. As in the case concerning

Military and Paramilitary Activities in and against Nicaragua , or in that concerning the Legal

42 Consequences of the Construction of a Wall in Occupied Palestinian Territory , the issue before the

Court today is the safeguard of objective law.

Uganda’s violation of the most basic principles of international law ⎯ non-use of force,

non-intervention in the internal affairs of other States, the right of self-determination, the duties of

the occupying Power in relation to the sovereignty of the occupied State, to its natural resources

and to the fundamental rights of the civilian population ⎯ goes to the heart of that objective law.

Uganda’s violation of the Security Council resolu tions regarding this conflict, as well as of the

Court’s Order on Provisional Measures of 1 July 2000, are also salient features of this case. - 35 -

Let us examine these points one by one.

I. V IOLATION OF THE PRINCIPLE OF NON -USE OF FORCE

5. Let us address first the principle of non-use of force. There is no need for me to restate to

the Members of this Court a concept with which they are perfectly familiar. It suffices to note that

Uganda does not deny this principle and that it does not dispute that its troops were present for

some five years on a major portion of the territory of the Democratic Republic of the Congo. It

seeks to justify that presence on the basis either of self-defence or of the victim’s consent. Its

various arguments on these points will be refuted later by Professor Corten. Our refutation of those

attempted defences must not, however, lead us to fo rget the essence of this case: the events having

marked the Ugandan aggression.

6. Maître Tshibangu Kalala has shown the Court how the invasion of Congolese territory

commenced on 4August 1998 and how, by that da te, all military co-opera tion with Uganda had

ceased, since, on 27 July, President Kabila had request ed all foreign troops to leave the territory of

the Republic.

Thus, from that date, the presence of Uganda n troops on Congolese soil, whether they had

simply remained in situ on that territory or whether they had openly crossed the frontier in order to

take the offensive against Congolese forces, constitu ted an armed attack within the meaning of

Article3 of the General Assembly resolution of 1974 on the definition of aggression, which has

43 been invoked by both Parties in their pleadings. The Court will recall that the following acts satisfy

the conditions for an act of aggression under Article 3:

“(a) The invasion or attack by the armed forces of a State of the territory of another
State, or any military occupation, ho wever temporary, resulting from such

invasion or attack . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) The use of armed forces of one State which are within the territory of another State
with the agreement of the receiving Stat e, in contravention of the conditions
provided for in the agreement or any extens ion of their presence in such territory
beyond the termination of the agreement.” 68

68
GA res. 3314 (XXIX) of 14 December 1974. - 36 -

As Maître Tshibangu Kalala has just shown you, starting on 4 August 1998 with the airborne

attack on Kitona, on the Atlantic coast, Uganda undertook a series of acts constituting aggression,

interspersed, without any real commitment, with undertakings to cease hostilities and withdraw its

troops. A comparison between acts and undertakings is particularly instructive.

7. On 6 August 1998, a column of the UPDF occupied the towns of Béni and Butembo 69,

dividing up between themselves and Rwandan forces the entirety of Kivu province (for the location

of all the places which I shall cite, see the map at tab 18 in the judges’ folder).

On 13 August 1998, Ugandan troops seized Bunia, 30km from the frontier 70, and on

71
25 August the mining town of Watsa, located some 200km from the frontier . From there, they

would go on to occupy the area bordering on Sudan.

8. On 17 August the Central Organ of the OAU’s Mechanism for Conflict Prevention,

Management and Resolution reacted firmly; it

“[c]alled for an immediate cessation of hostilities in the territory of the DRC and
condemned all external interventions in the internal affairs of that country under any
pretext whatsoever.

[c]alled for an immediate end to all such external interventions” 72.

9. On 23 August an SADC Summit, in which Uganda took part, called for an immediate
44

ceasefire 73.

These solemn exhortations did not prevent the continuation of the invasion, conducted from

Kisangani, captured by Uganda’s Rwandan ally on 29 August 1998 74.

10. On 31 August 1998 the Democratic Republic of the Congo sent the President of the

Security Council a memorandum accusing the Rwandan and Ugandan forces. In it, the Congo

“called on the Security Council to condemn the Ugandan and Rwandan aggression and
to take measures with a view to achieving

(a) The withdrawal of the foreign occupying troops;

6RDRC, pp. 90-91, para. 2.55, on 10 August according to CMU, p. 37, para. 47.
70
CMU, p. 38, para. 48.
71
RDRC, p. 92, para. 2.60.
7MDRC, Ann. 51.

7CMDRC, Ann. 24.

7RDRC, p. 92, para. 2.62. - 37 -

(b) Respect for the territorial integrity, unity and inviolability of the Congo’s
75
borders;” .

That same day, through its President, “the S ecurity Council . . . called for . . . an immediate

76
ceasefire, the withdrawal of all foreign forces . . . .

On 7 and 8 September, at the second Victoria Falls Summit, in which Uganda took part, the

African Heads of State present called for an i mmediate ceasefire. A working group was set up to

77
organize the withdrawal of foreign armed forces from DRC territory .

Despite all this, on 20 September 1998, Ugandan troops quietly occupied Isiro, 390 km from

the frontier 78.

11. On 24September 1998 the Central African Heads of State, meeting in Libreville,

“condemned the aggression against the Democr atic Republic of the Congo and the blatant

interference in the internal affairs of that country. They accordingly called for the withdrawal of

the aggressor foreign forces...” 79. But no matter: Ugandan troops occupied Buta on

80
3 October 1998 . On 6October they defeated the Chad ian forces, there in support of the DRC,

81
45 who were trying to check their advance . This is some 800 km from the border.

12. The Nairobi Conference, which Presiden t Museveni attended, took place on 18 October.

The final communiqué of the Consultative Summit of East African Heads of State calls for

“ (i) Immediate cessation of hostilities;

(ii) Immediate negotiation of a cease-fire agreement and a troop standstill;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(v) Orderly withdrawal of all foreign troops . . .” 82

83
Two days later, on 20October, Ugandan for ces participated in taking the city of Kindu

(400 km from the border).

75S/1998/827, MDRC, Ann. 27, in particular paras. 75 ff.
76
S/PRST/1998/26, 31 August 1998, second para., ibid., Ann. 14.
77
CMU, Ann. 26 and RDRC, p. 92, para. 2.66.
78
Ibid., p. 42, para. 54.
79MDRC, Vol. IV, Ann. 61.

80CMU, p. 42, para. 54.

81Ibid., p. 42, para. 54.
82
MDRC, Vol. IV, Ann. 62.
83
RDRC, pp. 88-89, paras. 2.50 and 2.51 and Anns. 58 and 60. - 38 -

13. On 26 and 27October, a draft ceasefire agreement and implementation mechanism

binding on, inter alia , the DRC and Uganda was adopted at a meeting of Ministers for Foreign

84
Affairs and Defence held in Lusaka .

That very day, Ugandan forces seized Dulia 85, on 8 November Aketi 86; Bumba’s turn came

87 88
on 17 November , Lisala’s on 10 December . This is 1050 km from the border with Uganda.

14. On 11December the President of the Security Council renewed the call for “an

immediate ceasefire [and] the . . . withdrawal of all foreign forces” 89.

In a curious response to this call, Ugandan troops on the same day reached Businga, which

90
was to fall to them in early February 1999 .

46 It will have been observed that Uganda in its Counter-Memorial acknowledges the capture of

most of these cities, and that conquest is thus clearly admitted.

No holiday for the Ugandan troops: Ango was occupied on 5 January 1999. All of Orientale

91
Province was then in their hands .

15. On 25 February 1999, the Heads of State and Government of Central Africa adopted a

declaration at the Yaoundé conference, stating that they “appealed for a ceasefire in the Democratic

Republic of the Congo, the immediate and un conditional withdrawal of hostile foreign

forces . . .”92.

On 7 and 8 April, the Summit of the Heads of State of Angola, the DRC, Namibia and

Zimbabwe stated in turn: “In re gard to the Democratic Republic of the Congo, the Heads of State

expressed their strong condemnation of the conti nuing aggression by Rwanda and Uganda against

this sovereign brother State” 93.

8CMU, Ann. 30.

8Ibid., p. 42, para. 54.
86
RDRC, p. 93, para. 2.64.
87
CMU, p. 43, para. 54.
88
RDRC, p. 95, paras. 2.71 and 2.72.
8S/PRST/1998/36, 11 December 1998, p. 1; MDRC, Ann. 15.

9CMU, p. 43, para. 54.

9RDRC, p. 94, paras. 2.66 and 2.67.
92
MDRC, Vol. IV, Ann. 63.
93
Ibid., Vol. IV, Ann. 64. - 39 -

Finally, Security Council resolution 1234 (1999), adopted on 9 April 1999, provides:

“The Security Council

1. Reaffirms the obligation of all States to respect the territorial integrity,

political independence and national soverei gnty of the Democratic Republic of the
Congo and other States in the region, including the obligation to refrain from the
threat or use of force against the territorial integrity or political independence of any

State or in any other manner inconsistent with the purposes of the United Nations . . .;

2. Deplores the continuing fighting and the presence of forces of foreign States
in the Democratic Republic of the Congo in a manner inconsistent with the principles

of the Charter of the United Nations, and calls upon those States to bring to an end the
presence of these uninvited forces and to take immediate steps to that end;

3. Demands an immediate halt to the hostilities;

4. Calls for the immediate signing of a ceasefire agreement allowing the orderly
withdrawal of all foreign forces . . .”.

On 18 and 19 April 1999 the Sirte Agreement was signed at the end of a Summit of Heads

of State of the Great Lakes Region which President Museveni attended; it provides as follows:

“The signatories of this Agreement have decided the following:

47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

⎯ immediate cessation of hostilities to pave the way for dialogue and peaceful
solution;

⎯ deployment of neutral African peacekeep ing forces in the area where there are
troops of Uganda, Rwanda and Burundi inside the DRC;

⎯ withdrawal of Ugandan and Rwand94 troops will be timed with the arrival of the
African peace forces; . . .” .

On 1 June 1999, a joint Uganda-DRC communiqué in which the two Parties reaffirmed their

commitments under the Sirte Agreement and agr eed to set up a Committee of Experts for the

implementation of that Agreement 95.

That did not keep the Ugandan army just days later from launching fierce attacks to capture

Mobeka (between 11 and 30 June).

In its Application instituting proceedings of 23June1999, the DRC reiterated its demand

that all Ugandan armed forces participating in th e aggression immediately leave the territory of the

DRC.

94
Ibid., Vol. IV, Ann. 65.
95
CMU, Ann. 44. - 40 -

However, on 3July1999 the Ugandan army took Gbadolite, 1,126km from the Ugandan

border 96.

16. A new ceasefire agreement and a timetable for the final withdrawal of foreign forces

(Lusaka II) were approved on 10July1999 97. Under AnnexB of that agreement, the orderly

withdrawal of foreign forces was to take place 180 days after the official signing of the agreement,

i.e. on 10 January 2000.

This did not prevent the UPDF from attacking Gemena on 9 and 10 July, Zongo on 29 July,

98
Libenge ⎯ lying 1,356km from the Ugandan border ⎯ on 22July , from occupying

Bongandanga and Basankusu on 30November1999 to the south of Lisala 99. Fighting later

occurred at Bomongo, Moboza, Dongo in February 2000, in Imese in April 2000, in Buburu in late

April 2000 and in Mobenzene in May-June 2000 100.

48 On 5 June 2000, bloody battles broke out be tween Ugandan and Rwandan forces for control

of Kisangani.

17. On 16 June 2000, the Security Council spoke out again, adopting resolution 1304 (2000),

“Expressing in particular its outrage at renewed fighting between Ugandan and
Rwandan forces in Kisangani, Democratic Republic of the Congo, which began on

5June2000, and at the failure of Uga nda and Rwanda to comply with their
commitment to cease hostilities and withdraw from Kisangani . . .

2. Reiterates its unreserved condemnation of the fighting between Ugandan and
Rwandan forces in Kisangani in violation of the sovereignty and territorial integrity of
the Democratic Republic of the Congo, . . .

3. Demands that Ugandan and Rwandan forces . . . immediately and completely
withdraw from Kisangani . . .;

4. Further demands:

(a) that Uganda and Rwanda, which have vi olated the sovereignty and territorial
integrity of the Democratic Republic of th e Congo, withdraw all their forces from
the territory of the Democratic Republic of the Congo without further delay, in

conformity with the timetable of the C easefire Agreement and the 8April2000
Kampala disengagement plan.”

9Ibid., p. 50, para. 63; RDRC, p. 96, para. 2.72.

9CMU, Ann. 45.
98
RDRC, p. 97, para. 2.75.
9Ibid., p. 96, para. 2.73.

10Ibid., p. 97, para. 2.75. - 41 -

On 1July2000, the Court in its Order indicating provisional measures decided that the

Parties should:

“forthwith, take all measures necessary to comply with all of their obligations under

international law, in particular those under the United Nations Charter and the Charter
of the Organization of African Unity, a nd with United Nations Security Council
resolution 1304 (2000) of 16 June 2000”.

18. This all shows that, without interruption from August1998 to late May2003, Uganda,

notwithstanding its international obligations, its international commitments, the Security Council’s

formal, repeated demands and the Court’s exhortations,

⎯ systematically invaded a number of Congolese provinces, in spite of the repeated protests from

the lawful authorities of the DRC;

⎯ drove the government forces from them, thereby taking them over ⎯ and occupying a

significant part of the territory including the provinces of North Kivu, Orientale and Equateur

and extending its reach nearly 1,500 km beyond its own border.

Accordingly, there can be no doubt as to Uganda’s violation of the principle barring the use

of force. As we have seen, it meets the criteria for characterization as aggression.

Unable to deny these facts, Uganda reli es upon various justifying and exonerating causes
49

which, as we will later see, cannot be accepted.

II. VIOLATION OF THE PRINCIPLES OF NON INTERVENTION AND SELF -DETERMINATION

19. Secondly, we shall say a few words about the violation of the principles of

non-intervention and self-determination.

We will not recapitulate the repeated calls by international bodies for the implementation in

this case of these principles, which are linked to the sovereignty of the DRC and the inviolability of

its territory.

No one can be deceived, given the circumstances which have just been described, by

101
Uganda’s protestations that it has never sought to intervene in the Congo’s internal affairs . It is

an established fact that Uganda did indeed seek to overthrow PresidentKabila’s régime by force;

to that end it attempted through its military plans to seize Kinshasa; it has allied itself with rebel

101
CMU, p. 36, para. 45, and ibid., Ann. 42, p. 4. - 42 -

movements and actively supported them 10. Moreover, it makes no secret of this. A position taken

by Uganda in its Rejoinder is, in this respect, significant. The Respondent claims that the Lusaka

Ceasefire Agreement of 10 July 1999 “formally gave the MLC and RCD the equal status with the

DRC Government they had previously enjoyed de facto... Thus, the Lusaka Agreement fully

legitimated Uganda’s support of the MLC and the RCD” 103.

Nothing, of course, in the Lusaka Agreement gave Uganda or any other State the authority to

provide military support to Congolese rebel move ments. It would, moreover, have been

inconceivable for the Lusaka Agreement to allow such a violation of the rights of a sovereign State.

The interpretation which Uganda seeks to give th is Agreement is, on the other hand, an overt

admission that it did indeed provide support to the rebel movements.

20. As the Court stated in its Judgment in the Military and Paramilitary Activities in and

against Nicaragua case:

50 “The Court considers that in internationa l law, if one State, with a view to the
coercion of another State, supports and assists armed bands in that State whose
purpose is to overthrow the Government of that State, that amounts to an intervention

by the one State in the internal affairs of the other . . .”

Slightly further on, the Court said in paragraph 242:

“242. The Court therefore finds that the support given by the United States . . .
to the military and paramilitary activities of the contras in Nicaragua, by financial

support, training, supply of weapons, intellig ence a104logistic support, constitutes a
clear breach of the principle of non-intervention.”

It is no different in the present case.

III. VIOLATION OF RULES ON OCCUPATION IN TIME OF WAR

In this third part, I propose to deal with the violation of the rules concerning occupation in

time of war.

21. A major difference between the present case and the case concerning Military and

Paramilitary Activities in and against Nicaragua lies in the fact that ⎯ unlike the United States,

which refrained from doing so ⎯ the Ugandan troops occupied, for nearly five years, a large area

10See RDRC, pp. 108-136.
103
RU, Vol. I, p. 91, para. 210.
10I.C.J. Reports 1986, p. 124, paras. 241 and 242. - 43 -

of the territory of the DRC. That specific aspect , together with the violations by Uganda of the

rules pertaining to occupation in time of war, must thus be addressed.

22. Those rules are firmly grounded in customary law, the Regulations annexed to the Fourth

Hague Convention of 1907, the Ge neva Conventions of 1949 and th e Additional Protocol of 1977

relating to International Armed Conflicts.

Article42 of the Regulations annexed to the Hague Convention (IV) of 1907 gives the

following classic definition of occupation:

“Territory is considered occupied wh en it is actually placed under the authority
of the hostile army.

The occupation extends only to the terr itory where such authority has been

established and can be exercised.”

23. That situation, corresponding to the term “military occupation”, moreover falls within the

definition of aggression as adopted by the General Assembly:

“The invasion or attack by the armed forces of a State of the territory of another
State, or any military occupation however temporary, resulting from such invasion or

51 attack, or any annexation by the use of force of the territory of another State or part
thereof . . .”05

and thus constitutes an act of aggression.

24. Invasion and occupation are of course different things. The distinction was aptly

expressed in the celebrated “Oxford Manual” adopted on 9 September 1880 by the Institut de droit

international, providing in Article 41:

“Territory is regarded as occupied when, as the consequence of invasion by

hostile forces, the State to which it belongs h as ceased, in fact, to exercise its ordinary
authority therein, and the invading State is alone in a position to maintain order there.
The limits within which this state of affairs exists determine the extent and duration of
106
the occupation.”

The essential element of the substitution of aut hority was set out very clearly in the United

States Army Field Manual:

“335. Occupation as a question of fact

Military occupation is a question of fact. It presupposes a hostile invasion,
resisted or un-resisted, as a result of which the invader has rendered the invaded
government incapable of publicly exercising its authority, and that the invader has

105
GA res. 3314 (XXIX), 14 December 1974.
106
Annuaire de l’Institut de droit international, 1881-1882, pp. 156-174. - 44 -

successfully substitu107 its own authority for that of the legitimate government in the
territory invaded.”

This certainly describes the situation in our case, throughout the conquered region; the

Democratic Republic of the Congo had lost effective control over the territory and gave way to the

effective exercise of authority by the Ugandan forces.

25. Uganda has sought to avoid being classified as an occupying State by relying on two

arguments.

In the first of those arguments, Uganda contends that it was not an occupant because it was

acting out of self-defence. Referring to that de fence in its Rejoinder, it states “such purposes

108
[self-defence] did not involve a so-called occupation régime of any character” .

Such side-stepping shows profound ignorance of the law. An occupation régime is a
52

question of fact: the presence of a State’s army on the invaded territory under conditions that have

not been accepted by the victim State; it does not depend on any claims ⎯ moreover unfounded in

the present case ⎯ concerning the invader’s intentions. An occupation régime is something

objective, regardless of the issue of lawfulness. As was stated by the United States Military

Tribunal in connection with the Nuremberg trials:

“At the outset, we desire to point out that international law makes no distinction
between a lawful and an unlawful occupant in dealing with the respective duties of

occupant and population in occupied territory . . . Whether the invasion was lawful or
criminal is not an important factor in the consideration of this subject.” 109

26. In its second argument, Uganda denies o ccupation in the present case on the ground that

the presence of the Ugandan forces was limited in intensity and coverage; “the notion of the

Ugandan occupation is manifestly absurd” 110, we are told. It goes on to contend that “[a]t the

height of its deployment in the DRC, the UPDF maintained fewer than 10,000 soldiers in that

country. These were confined to the regions of eastern Congo adjacent to the Ugandan border and

to designated strategic locations, especially airfields ...” Uganda’s sudde n humility is touching,

but surprising under the circumstances. The extent of the territory occupied by Uganda can be seen

107M. Whiteman, Digest of International Law, Vol. 10, p. 541.
108
RU, para. 521, p. 243.
109United States v. Wilhelm List, et al , US Military Tribunal, V, 19February1948, XITrials of War Criminals

before the Nuremberg Military Tribunals under Control Council Law No. 10, 1950.
110RU, p. 75, para. 170; see also RU, p. 245, para. 525. - 45 -

on a map drawn up by the IRIN and reproduced in a report of the International Crisis Group ⎯ you

will find this in the judges’ folder under tab 3.

The argument that any occupation by Uganda was not effective is unfounded. The element

of effectiveness must be assessed according to the ci rcumstances. Once again, the United States

Army Field Manual addresses the question with subtlety:

“It is sufficient that the occupying force can, within a reasonable time, send
detachments of troops to make its authority felt within the occupied district. It is
immaterial whether the authority of the occupant is maintained by fixed garrisons or
53
flying columns, whether by small or la rge forces as long as the occupation is
effective.” 111

Following the same logic of sufficient effectiveness, it is accepted that the existence of

resistance movements does not detract from the effective control and status of the occupant (United

112
States v. Wilhelm List, et al, United States Military Tribunal, V, 19 February 1948) .

By these standards, the effectiveness of th e control exercised by the Ugandan army was

sufficiently established to exclude DRC forces from the occupied territory.

27. Occupation in war gives rise to a well-estab lished régime under international law. It can

be summed up briefly as follows.

First, occupation in time of wa r or military occupation does not, per se, imply a transfer of

sovereignty over the occupied territory. This w as implicitly recalled by the Court in its Advisory

Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian

Territory 113.

28. Secondly, the status of occupant carries va rious obligations which were codified in the

1880 “Oxford Manual” and in the Regulations c oncerning the Laws and Customs of War on Land

annexed to the Hague Convention (IV) of 1907. According to the jurisprudence of the Court, those

Regulations have become part of customary law 114.

The first of those obligations is the maintenance of order.

111
Ibid., p. 541.
112
Ibid, p. 543.
11Advisory Opinion of 9 July 2004, para. 87.

11Legality of the Threat or Use of Nuclear Weapons , Advisory Opinion, I.C.J. Reports 1996 (I), p. 256, para. 75;
and Advisory Opinion of 9 July 2004, op. cit., para. 89. - 46 -

Early on, the “Oxford Manual” stated: “the occupant should take all due and needful

measures to restore and ensure public order and public safety”.

Article 43 of the Regulations provides:

“The authority of the legitimate power having in fact passed into the hands of
the occupant, the latter shall take all the me asures in his power to restore, and ensure,
as far as possible, public order and safety, while respecting, unless absolutely

prevented, the laws in force in the country.”

54 29. The occupant has a duty to respect and ensure respect for the life and freedom of the

inhabitants of the occupied territory.

The scanty provisions of the Hague Regulati ons (Articles44 to 46) were expanded and

diversified by the Fourth Geneva Convention of 12August1949 relative to the Protection of

Civilian Persons in Time of War, of which Article 2, paragraph2, provides: “The Convention

shall also apply to all cases of partial or total occupation of the territory of a high contracting party,

115
even if the said occupation meets with no armed resistance.”

That is to say that the occupying power, on the territory where its authority as occupying

power is exercised, must respect and ensure respect for all provisions of humanitarian law resulting

from the Geneva Conventions and protocols add itional thereto, as well as the fundamental human

rights codified inter alia in international covenants on human rights.

As the Court stated in its recent Opinion of 9 July 2004,

“the Fourth Geneva Convention . . . is applicable when two conditions are fulfilled:
that there exists an armed conflict (whether or not a state of war has been recognized);
and that the conflict has arisen between two contracting parties. If those two

conditions are satisfied, the Convention applies, in particular, i116ny territory occupied
in the course of the conflict by one of the contracting parties.”

Those conditions are certainly fulfilled in the present case.

The violations committed by Uganda in this context will be presented later by

Professor Pierre Klein and Maître Tshibangu Kalala.

30. Lastly, the occupant has an obligation to respect and ensure respect for private and public

property.

115
See also Advisory Opinion of 9 July 2004, op. cit., para. 92.
116
Idem, para. 95. - 47 -

Such obligations were already laid down at length in the 1880 “Oxford Manual” (under the

heading “Rules of Conduct with Regard to Prope rty”, Arts.50-60); they were later to be

incorporated in the Hague Regulations (Arts. 46-56), as well as in the 1949Geneva Conventions

and Protocols additional thereto. The violati ons committed by Uganda in this area will be

presented later by Professor Philippe Sands.

55 Uganda’s arguments thus seek not only to deny the application in the present case of

fundamental principles relating to the prohibition of the use of force and intervention, but also to

dismiss the status that it necessarily acquired by th e effectiveness of its occupation. Such tactics

are essentially intended to create a legal vacuum and to evade the responsibilities which attach to

the status of occupant. This will lead us, at a later stage, to examine the issues of international

responsibility which lie at the heart of the present case.

IV. V IOLATION OF SECURITY C OUNCIL RESOLUTIONS AND OF THE C OURT ’S
O RDER OF 1 JULY 2000

31. Before finishing, I will briefly refer to the violation by Uganda of Security Council

resolutions and of the Court’s Order of 1July 2000. I have already had occasion to cite Security

117 118
Council resolution 1234 (1999) of 9 April 1999 and resolution 1204 (2000) of 16 June 2000 .

If the Court will allow me, I wish to recall th e terms of the second of those resolutions, in

which the Security Council demanded:

“That Uganda and Rwanda, which had vi olated the sovereignty and territorial

integrity of the Democratic Republic of th e Congo, withdraw all their forces from the
territory of the Democratic Republic of the Congo without further delay, in conformity
with the timetable of the Ceasefire Agreement and the 8April2000 Kampala

disengagement plan.”

Numerous other Security Council resolutions later referred back to the one just cited.

The Court itself followed suit in its Order of 1 July 2000 when it declared:

“(2) Unanimously

Both Parties must, forthwith, take all measures necessary to comply with all of
their obligations under international law, in particular those under the United Nations
Charter and the Charter of the Organization of African Unity, and with United Nations

Security Council resolution 1304 (2000) of 16 June 2000;

117
See supra, para. 15.
11See supra, para. 17. - 48 -

(3) Unanimously,

56
Both Parties must, forthwith, take all measures necessary to ensure full respect
within the zone of conflict for fundam ental human rights and for the applicable
provisions of humanitarian law.” 119

We have no doubt that the Court will find that it cannot remain silent in the face of the

flagrant violation of all these binding international decisions.

That brings to an end, Mr. President, today’s oral presentation by the Democratic Republic

of the Congo. I would like to thank the Court for its kind attention.

The PRESIDENT: Thank you, Professor Salmon.

This brings to a conclusion this morning’s hearings. The hearings will be continued at

10 o’clock tomorrow morning. I now declare this sitting closed.

The Court rose at 1 p.m.

___________

11Armed Activities on the Territory of th e Congo (Democratic Republic of the Congo v. Uganda), Provisional

Measures, Order of 1 July 2000, I.C.J. Reports 2000, p. 129, para. 47.