CR 2005/14
Cour internationale International Court
de Justice of Justice
LAAYE THAEGUE
ANNÉE 2005
Audience publique
tenue le mercredi 27 avril 2005, à 10 heures, au Palais de la Paix,
sous la présidence de M. Shi, président,
en l’affaire des Activités armées sur le territoire du Congo
(République démocratique du Congo c. Ouganda)
________________
COMPTE RENDU
________________
YEAR 2005
Public sitting
held on Wednesday 27 April 2005, at 10 a.m., at the Peace Palace,
President Shi presiding,
in the case concerning Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v. Uganda)
____________________
VERBATIM RECORD
____________________ - 2 -
Présents : M. Shi,président
Ricepra,ident
KorMoMa.
Vereshchetin
Higgimse
Parra-A.anguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Simma
Tomka
Ajbresam,
VerhoMev.en,
jugetseka, ad hoc
Cgoefferr,
⎯⎯⎯⎯⎯⎯ - 3 -
Present: Presienit
Vice-Presideetva
Judges Koroma
Vereshchetin
Higgins
Parra-Aranguren
Kooijmans
Rezek
Al-Khasawneh
Buergenthal
Elaraby
Owada
Simma
Tomka
Abraham
Judges ad hoc Verhoeven
Kateka
Registrar Couvreur
⎯⎯⎯⎯⎯⎯ - 4 -
Le Gouvernement de la République du Congo est représenté par :
S. Exc. M. Honorius Kisimba Ngoy Ndalewe, ministre de la justice et garde des sceaux de la
République démocratique du Congo,
comme chef de la délégation;
S.Exc. M.Jacques Masangu-a-Mwanza, ambassadeu r extraordinaire et plénipotentiaire auprès du
Royaume des Pays-Bas,
coagment;
M. Tshibangu Kalala, avocat aux barreaux de Kinshasa et de Bruxelles,
comme coagent et avocat;
M. Olivier Corten, professeur de droit international à l’Université libre de Bruxelles,
M. Pierre Klein, professeur de droit internationa l, directeur du centre de droit international de
l’Université libre de Bruxelles,
M. Jean Salmon, professeur émérite à l’Université lib re de Bruxelles, membre de l’Institut de droit
international et de la Cour permanente d’arbitrage,
M. Philippe Sands, Q.C., professeur de droit, dire cteur du Centre for International Courts and
Tribunals, University College London,
comme conseils et avocats;
M. Ilunga Lwanza, directeur de cabinet adjoint et conseiller juridique au cabinet du ministre de la
justice et garde des sceaux,
M. Yambu A Ngoyi, conseiller principal à la vice-présidence de la République,
M. Mutumbe Mbuya, conseiller juridique au cabinet du ministre de la justice,
M. Victor Musompo Kasongo, secrétaire particulier du ministre de la justice et garde des sceaux,
M. Nsingi-zi-Mayemba, premier conseiller d’am bassade de la République démocratique du Congo
auprès du Royaume des Pays-Bas,
Mme Marceline Masele, deuxième conseillère d’ ambassade de la République démocratique du
Congo auprès du Royaume des Pays-Bas,
commceonseillers;
M. Mbambu wa Cizubu, avocat au barreau de Kinshasa (cabinet Tshibangu et associés),
M. François Dubuisson, chargé d’enseignement à l’Université libre de Bruxelles,
M. Kikangala Ngoie, avocat au barreau de Bruxelles, - 5 -
The Government of the Democratic Republic of the Congo is represented by:
His Excellency Mr. Honorius Kisimba Ngoy Ndalewe, Minister of Jus tice, Keeper of the Seals of
the Democratic Republic of the Congo,
as Head of Delegation;
His Excellency Mr. Jacques Masangu-a-Mwanza, Amb assador Extraordinary and Plenipotentiary
to the Kingdom of the Netherlands,
as Agent;
Maître Tshibangu Kalala, member of the Kinshasa and Brussels Bars,
as Co-Agent and Advocate;
Mr. Olivier Corten, Professor of International Law, Université libre de Bruxelles,
Mr. Pierre Klein, Professor of International Law, Director of the Centre for International Law,
Université libre de Bruxelles,
Mr. Jean Salmon, Professor Emeritus, Université libre de Bruxelles, member of the Institut de droit
international and of the Permanent Court of Arbitration,
Mr. Philippe Sands, Q.C., Professor of Law, Director of the Centre for International Courts and
Tribunals, University College London,
as Counsel and Advocates;
Maître Ilunga Lwanza, Deputy Directeur de cabinet and Legal Adviser, cabinet of the Minister of
Justice, Keeper of the Seals,
Mr. Yambu A. Ngoyi, Chief Adviser to the Vice-Presidency of the Republic,
Mr. Mutumbe Mbuya, Legal Adviser, cabinet of the Minister of Justice,
Mr. Victor Musompo Kasongo, Private Secretary to the Minister of Justice, Keeper of the Seals,
Mr. Nsingi-zi-Mayemba, First Counsellor, Embassy of the Democratic Republic of the Congo in
the Kingdom of the Netherlands,
Ms Marceline Masele, Second Counsellor, Embassy of the Democratic Republic of the Congo in
the Kingdom of the Netherlands,
as Advisers;
Maître Mbambu wa Cizubu, member of the Kinshasa Bar (law firm of Tshibangu and Partners),
Mr. François Dubuisson, Lecturer, Université libre de Bruxelles,
Maître Kikangala Ngoie, member of the Brussels Bar, - 6 -
Mme Anne Lagerwall, assistante à l’Université libre de Bruxelles,
Mme Anjolie Singh, assistante à l’University College London, membre du barreau de l’Inde,
comme assistants.
Le Gouvernement de l’Ouganda est représenté par :
S. Exc. E. Khiddu Makubuya, S.C., M.P., Attorney General de la République de l’Ouganda,
comme agent, conseil et avocat;
M. Lucian Tibaruha, Solicitor General de la République de l’Ouganda,
comme coagent, conseil et avocat;
M. Ian Brownlie, C.B.E., Q.C., F.B.A., membre du barreau d’Angleterre, membre de la
Commission du droit international, professeur émérite de droit international public à
l’Université d’Oxford et ancien titulaire de la chaire Chichele , membre de l’Institut de droit
international,
M. Paul S. Reichler, membre du cabinet Foley Hoag, LLP, à Washington D.C., avocat à la Cour
suprême des Etats-Unis, membre du barreau du district de Columbia,
M. Eric Suy, professeur émérite à l’Université cat holique de Leuven, ancien Secrétaire général
adjoint et conseiller juridique de l’Organisation des Nations Unies, membre de l’Institut de droit
international,
S. Exc. l’honorable Amama Mbabazi, ministre de la défense de la République de l’Ouganda,
M. Katumba Wamala, (PSC), (USA WC), général de division, inspecteur général de la police de la
République de l’Ouganda,
comme conseils et avocats;
M. Theodore Christakis, professeur de droit in ternational à l’Université de Grenoble II
(Pierre Mendès France),
M. Lawrence H. Martin, membre du cabinet Foley Hoag, LLP, à Washington D.C., membre du
barreau du district de Columbia,
commceonseils;
M. Timothy Kanyogongya, capitaine des forces de défense du peuple ougandais,
comme conseiller. - 7 -
Ms Anne Lagerwall, Assistant, Université libre de Bruxelles,
Ms Anjolie Singh, Assistant, University College London, member of the Indian Bar,
as Assistants.
The Government of Uganda is represented by:
H.E. the Honourable Mr. E. Khiddu Makubuya S.C., M.P., Attorney General of the Republic of
Uganda,
as Agent, Counsel and Advocate;
Mr. Lucian Tibaruha, Solicitor General of the Republic of Uganda,
as Co-Agent, Counsel and Advocate;
Mr. Ian Brownlie, C.B.E, Q.C., F.B.A., member of the English Bar, member of the International
Law Commission, Emeritus Chichele Professor of Public International Law, University of
Oxford, member of the Institut de droit international,
Mr. Paul S. Reichler, Foley Hoag LLP, Washington D.C., member of the Bar of the United States
Supreme Court, member of the Bar of the District of Columbia,
Mr. Eric Suy, Emeritus Professor, Catholic University of Leuven, former Under Secretary-General
and Legal Counsel of the United Nations, member of the Institut de droit international,
H.E. the Honourable Amama Mbabazi, Minister of Defence of the Republic of Uganda,
Major General Katumba Wamala, (PSC), (USA WC), Inspector General of Police of the Republic
of Uganda,
as Counsel and Advocates;
Mr. Theodore Christakis, Professor of International Law, University of Grenoble II (Pierre Mendes
France),
Mr. Lawrence H. Martin, Foley Hoag LLP, Washington D.C., member of the Bar of the District of
Columbia,
as Counsel;
Captain Timothy Kanyogonya, Uganda People’s Defence Forces,
as Adviser. - 8 -
The PRESIDENT: Please be seated. The sitting is now open. The Court meets today to
hear the second round of oral argument of Uganda; and Uganda will be heard this morning and this
afternoon. I now give the floor to Mr. Reichler.
RMEr. HLER:
THE EVIDENCE IN SUPPORT OF UGANDA ’S CLAIM OF SELF -DEFENCE
1. Mr.President, distinguished Members of the Court, I am honoured, again, to appear
before this most august judicial body, this time for the purpose of commencing the second round of
presentations on behalf of the Republic of Uganda. I will speak this morning about the evidence
supporting Uganda’s claim that she acted in self-defence. In so doing, I will respond, in particular,
to the statements made by the advocates for the DRC that there is no proof ⎯ no proof ⎯ that the
Sudan was engaged militarily in the DRC, a nd no proof that the Government of the DRC
collaborated with the Sudan and with Ugandan rebels in armed attacks against Uganda.
2. Mr. President, distinguished Members of the Court, I am confident that you will recall the
extremely harsh statements made by Professor Sa lmon on Monday about Uganda’s case. Here are
just a few examples: “There is no evidence of an y presence of Sudan in DRC territory.” “Uganda
cannot repeat the same myth ad nauseum.” “Uganda could just as well have said there were
Martians in Congolese territory.” “The presence of Sudanese in Congo is a complete fabrication.”
3. Now, my friend Professor Salmon is a very learned and erudite scholar. I could not help
but be impressed by his recitation of numerous quotations from the great European thinkers and
writers of the past. He appears to have read everything there is to read ⎯ everything, that is,
except his own written pleadings in this case. But it would be unfair of me to single out
Professor Salmon. It is quite obvious that the same holds true for my friends, Professor Corten and
ProfessorKlein, who also told this Court that there was no proof ⎯ no proof ⎯ of the Sudan’s
military involvement in the DRC, or the DRC’s collaboration with the Sudan or the Ugandan rebels
in armed attacks against Uganda. It is obvious that they have not read their own pleadings either.
None of them has. It therefore falls upon me to do so. - 9 -
The evidence in the DRC’s written pleadings showing
the Congo’s complicity with the Sudan
4. This is from the DRC’s Reply, Annex10 8, which is dated 9September 1998, and states
that it is based on “diplomatic and military sources”:
“Sudan has been flying military supplies from the southern capital of Juba to the
forces of DRC President Laurent Kabila and his allies in the northeast town of Isiro
and in the area of Dongo. One source said military transport planes, apparently bound
for the DRC, had left Juba for five consecutive days.”
5. The same page of the DRC’s own Annex states that “[President] Kabila had enjoyed warm
relations with Khartoum long before the current out break of fighting”. Continuing the quotation:
“Sudan has emerged as the big winner from this latest outbreak of fighting.”
6. This is also from Annex108 to the DRC’ s own Reply, dated 14September 1998. “Last
week,” the document states, “2,000 Sudanese soldiers were sent to the DRC to support
[President]Kabila’s army.” Two thousand Sudanese soldiers were sent to the DRC to support
PresidentKabila’s army: that is 2,000Sudanese soldiers, not 2,000 Martians, not 2,000Belgian
law professors, but 2,000Sudanese soldiers, sent to the DRC. And they are confirmed by the
DRC’s own written pleadings.
7. Again, from the DRC’s Reply, Anne 108, this time from the part dated
16September1998: “Sudan had sent 2,000 of its soldiers to Kindu, Mainema province, to help
DRC President Kabila and his allies.” This DRC Annex goes on to state that “since 3 September”
there were reports of “Sudanese involvement in th e conflict”. So now we have 4,000Sudanese
soldiers engaged in the conflict, and we have some of them there since 3 September 1998. And this
is confirmed by the DRC’s own written pleadings.
8. This is from a report cited 22times by the DRC in her Reply, and from a source whose
reliability the Reply repeatedly vouches for:
“In September 1998 President Museveni indicated that his troops were holding
the main airports in the east of Congo in order to prevent the Sudanese from using
them against Uganda. He added that he had information indicating the presence of
Sudanese soldiers in Isiro ... This has also been reported by a source among the
humanitarian organizations working in the area.” (P. 19.)
9. So now the DRC’s written pleadings tell us there were Sudanese soldiers at Isiro, in
eastern Congo, in September1998, just as Preside ntMuseveni said, and this is confirmed by
humanitarian organizations working in the area. The airfield at Isiro, it will be remembered, was - 10 -
the very first objective of Ugandan forces afte r the Ugandan High Command, at its meeting on
11September 1998, ordered the UPDF into action to confront the hostile Sudanese forces who
were taking over Congolese airfields for the purpose of attacking Uganda.
10. Does the Court recall ProfessorSalmon’s references to “fictitious” visits by the DRC
President Laurent Kabila to Khartoum in furtherance of a military alliance with Sudan? This same
report, again cited 22 times in the DRC’s Reply, stat ed further that “President Kabila had secretly
visited Khartoum on 28 August to look for aid” (p. 19).
11. This is from Annex 68 to the DRC’s Reply:
“The evolution of the war incited the Sudanese government to invest on
[President] Kabila’s side. The Khartoum authorities insisted in transporting
300Ugandan rebels by air to lower Uele at Buta. Their mission was to prepare a
counter-offensive to bring back the rebels into their country.” (Pp. 28-29.)
12. During his speech on Monday, Pr ofessorSalmon cited the book written by
Jean-PierreBemba, current Vice-President of the DRC and formerly the leader of the MLC rebel
organization. ProfessorSalmon thought it most devastating to Uganda’s case that Mr.Bemba,
whom he characterized as Uganda’s ally: “Does not once mention the presence of a single
Sudanese soldier in Gbadolite” ⎯ does not once mention the presence of a single Sudanese soldier
in Gbadolite ⎯ Professor Corten also jumped on this ba ndwagon. He told the Court that even
though Mr.Bemba wrote extensively about the figh ting in northern and eastern Congo, he never
once mentioned the presence there of Sudan ese troops. ProfessorCorten recommended that
Mr.Bemba’s book was “well worth reading”. And so it is. But neither ProfessorCorten nor
Professor Salmon would have any way of knowing, because they obviously have not read the book
themselves. So, once again, it falls upon me to do so. I will read not just from Mr. Bemba’s book,
but from the excerpts from the book that were annexed to the DRC’s written pleadings,
specifically, Annex 68 to the DRC’s Reply:
“Under the command of Congolese Colone l Deward N’Sau, 14,245 soldiers
were assigned to the North Equateur section by the headquarters of the 5th Military
Region. Laurent Kabila, knowing the impor tance of the battle for Gbadolite, gave
precise instructions to his high command comprising 246 cadres and officers. On our
side, Colonel N’Sau deployed 2,471 and 2, 868 soldiers respectively on Yakoma and
Businga axis. He also organized 1,207 soldie rs to take charge of Gemena sector. It
should be noted that the enemy deployed 2,210 Chadian soldiers, 3,932 extremist
Hutu Interahamwe and a detachment of 108 Sudanese soldiers .” (P. 39; emphasis
added.) - 11 -
13. This is also from the excerpts of Mr.Bemba’s book that form part of the DRC’s
pleadings, at Annex 68 to the Reply:
“At Gbadolite, there was a total demoralization of the troops. Colonel N’Sau
informed Kabila of the departure of their Chadian allies and demanded for
reinforcement from Kinshasa. At Gbadolite airport, there was only
one (1) Antonov 26 having been placed under the responsibility of Colonel N-tita and
Major Mwanza in March 1999, being piloted by Sudanese crew . . .” (pp. 43-44;
emphasis added).
14. Well, Professor Salmon was correct after all. Mr.Bemba did not mention a single
Sudanese soldier fighting in the DRC, around Gbado lite. He mentioned 110 of them. Plainly,
there were Sudanese troops fighting at and around Gbadolite in 1999, as there were at Businga,
Dongo, Buta and Isiro in 1998, the other places where they are acknowledged to have been
deployed in the DRC’s written pleadings.
15. Mr. President, distinguished Members of the Court, so that we are all perfectly clear, thus
far I have read exclusively from the DRC’s own wr itten submissions. I could go on a lot further,
but I will not. Uganda has only been allotted six hours for her second roun d, and there are other
subjects to discuss, and other speakers to discuss them. I respectfully submit that it is not possible
to speak responsibly about there being no proof ⎯ no proof ⎯ of Sudan’s involvement in armed
activities against Uganda from Congolese territory with the collaboration of the DRC Government.
To the contrary, these facts are fully proven by the DRC’s own written pleadings and the
documentary evidence attached thereto.
The significance of the DRC’s failure to deny this evidence
16. This is why ⎯ and this is an extremely significant point ⎯ the DRC has never expressly
denied her military alliance with Sudan, has ne ver expressly denied Sudan’s military presence and
armed activities in the DRC directed against Ug anda, and has never expressly denied Sudan’s
direct support for and control of the rebel groups attacking Uganda from Congolese territory, with
the collaboration of the DRC Government. None of these specific facts has ever been denied. Not
in the DRC’s written pleadings. Not in the oral pl eadings before this Court. Rather, the DRC has
been very clever in commenting on these critical facts. I will read from the definitive statement on - 12 -
this subject that the DRC made in her final written pleading, her Additional Written Observations
on Uganda’s counter-claims, filed in February 2003:
“As for the DRC, it would like to reaffirm , in the most solemn manner, that no
alliance has ever been made with Sudan in order to attack Uganda , in May 1998 or
afterwards. Otherwise, the DRC would like to point out that, in spite of what Uganda
seems to be wishing, it will not give an opinion on the conflict between Uganda and
Sudan that has been going on for several years now, either by confirming or by
negating the links that exist between the Kh artoum régime and certain Ugandan rebel
movements.” (Paragraph 1.65; emphasis added.)
17. In the circumstances of this case, this is a remarkable statement. It is obviously one that
was very carefully and cleverly crafted. It is, to say the least, highly nuanced. The DRC does not
deny that it made a military alliance with Sudan, or that it received into its territory thousands of
Sudanese soldiers and thousands of Chadian soldiers brought in by Sudan, as well as thousands of
Sudanese-trained Ugandan rebels in August and Se ptember 1998, whom it incorporated into its
national army. Rather, it denies only that the purpose of its military alliance with the Sudan was
“in order to attack Uganda”. Notably, the DRC does not deny that this was the Sudan’s purpose, or
that the DRC was well aware that this was the S udan’s purpose. In fact, the DRC denies nothing
whatsoever about the Sudan’s military involvement in the Congo, the Sudan’s deployment of its
own troops in eastern Congo, or its armed activities, both direct and in support of the Ugandan
rebels, that were hostile to Uganda. In the face of Uganda’s specific and detailed factual assertions
on these matters pertaining to the Sudan, and not withstanding the fact that these are important
matters that bear heavily on Uganda’s claim of self-defence, all the DRC is prepared to say about
them is “No comment”.
18. Thus, the DRC has never denied the following specific and detailed elements of
Uganda’s case:
1. That on 14 August 1998, Brigadier Saladin Khalil of the Sudanese Army’s Equatoria Division
supervised the delivery of three planeloads of weapons to the Congolese army in Kinshasa.
Indeed, I have already shown that the DRC’s own written pleadings confirm that Sudanese
military transports delivered supplies to the D RC, from Juba in southern Sudan, for five
consecutive days. - 13 -
2. That Sudanese President Omar al-Bashir persuaded the President of Chad, Idris Deby, to send a
brigade of 2,500 soldiers to the DRC to fight against Uganda, and these troops were transported
to Gbadolite by the Sudanese air force. In fact, as I just read to the Court a few moments ago,
the DRC’s written submissions acknowledge that there were at least 2,200 Chadian soldiers
deployed against Uganda, and Professor Salmon, in his first round speech admitted that
Chadian troops fought in the DRC against Uganda.
3. That the Sudan stepped up its training of C ongolese soldiers, including former members of the
Rwandan army and Interahamwe militias at camps in the Sudan, and then transported them
back to the DRC to fight against Uganda and Rwanda. We shall see, in just a few minutes, that
this too is admitted in the DRC’s written pleadings.
4. That President Kabila met again with President al-Bashir in Khartoum in late August 1998, and
requested more military assistance. In fact, th is meeting is admitted to have taken place on
28 August 1998 in the annexes to the DRC’s Reply from which I read earlier.
5. That, as a result of this meeting, on 2 September 1998, Sudanese Colonel Ibrahim Ismail
Habiballah delivered a planeload of weapons to the Congolese army in Gbadolite for use by
units of the Uganda National Rescue Front II, an anti-Uganda rebel group that had been
previously incorporated into the Congolese army. The DRC’s written pleadings, from which I
just read, acknowledge the incorporation into the Congolese army of at least 300 Ugandan
rebels, trained by the Sudan, and deployed at Buta against Ugandan forces.
6. That, also in early September, a Sudanese brigade of approximately 2,500 men under the
command of Lieutenant General Abdul Rahman Sir Khatim arrived in Gbadolite, whence it
deployed first to Businga in preparation for an attack on Ugandan forces. In fact, the DRC’s
written submissions acknowledge the arrival of at least 2,000 Sudanese troops in northern
Congo, and another 2,000 to the south, in Kindu, and they admit that, as of 3 September 1998,
Sudanese forces were involved in the conflict.
19. As we have also seen, according to the Annexes to the DRC’s Reply, the Sudanese forces
deployed as far east as Isiro, whose airport is w ithin easy striking distance of Uganda. In fact,
Isiro’s airport is capable of handling helicopter gunships, medium-sized transport and cargo planes,
and light fighter planes. And it is only 320 km from Ugandan border towns. - 14 -
20. All of these facts were put forward by Uganda in support of her claim of self-defence.
They demonstrate that in August and early September1998 the increasingly bold armed attacks
against Uganda by the rebel groups based in Congolese territory were being bolstered by the
military presence and the direct operational and lo gistical support from the Sudan, with obvious
licence from the Government of the DRC. In regard to licence, it is significant that the
DRCGovernment never spoke of the Sudanese or Chadian military intervention as an “invasion”
or called for the removal of Sudanese or Chad ian troops. Their presence and mission in the DRC
were obviously approved by the Congolese authorities. Yet, instead of a denial of these facts, all
the DRC and her counsel can come up with is a firm and forceful: “no comment”.
21. The silence of the DRC in the face of these facts is ⎯ to borrow a word from my
distinguished opposing counsel ⎯ “deafening”. But it is not, as Professor Salmon might say, “a
silence of scorn”. To the contrary, it is a silence of conscience. I do not criticize Professor Salmon
and his colleagues for their failure to deny the sp ecific and detailed facts of the Sudan’s military
involvement in the DRC, and its participation di rectly and indirectly in armed attacks against
Uganda from Congolese territory. To the contrary, I applaud them for having the integrity not to
deny what they know to be the truth. I am sure that, as honourable men, they will not dishonour
themselves by suddenly reversing course and sta nding up on Friday, in their final presentation to
the Court in these proceedings, which is supposed to relate solely to Uganda ’s counter-claims, and
deny what they have steadfastly failed to deny through three extensive written pleadings and three
weeks of oral hearings. In any event, such a denial, at the last possible moment before the lights go
out and in circumstances that would not perm it Uganda to respond, would be recognized as a
desperate and highly inappropriate measure totally lacking in credibility.
22. And if they should pretend to moral out rage and cite to you pages and pages of the
Reply, where they claim to have denied the milita ry role of the Sudan in this conflict, and the
collaboration between the Sudan and the DRC, my humbl e advice is: read the fine print, as I did.
You will find that it is only an attack on Uganda’s proof. The specific facts and details that I have
described here this morning, and in my speech of 15April, are never expressly denied in the
DRC’s written pleadings. - 15 -
23. Because they cannot deny the facts, my distinguished opponents devote themselves
instead to an attack on the suffici ency of Uganda’s proof. In particular, they argue that Uganda’s
specific factual assertions about the Sudan’s milita ry presence and activities in the Congo, derived
from Uganda’s military and intelligence services, cannot constitute evidence because they emanate
from a Party to the proceedings and are therefore unr eliable and inadmissible. But this is a gross
misstatement of the law of evidence, as my colleague IanBrownlie will further explain this
morning. Uganda’s evidence is still evidence. The fact that it comes from a Party to the
proceedings may affect the weight that the Court chooses to give it, but does not render it
inadmissible. And as to the weight the Court shoul d give this evidence, surely the Court may take
into account the fact that the DRC has never specifically or expressly denied it. In the face of the
DRC’s highly revealing “no comment”, Uganda submits that the evidence stands unchallenged, and
therefore is entitled to a great deal of weight. In any event, as we have seen, Uganda’s evidence is
fully corroborated by the documentary proof annexed to the DRC’s own written pleadings.
24. Because they are unable to deny the critical facts about the Sudan’s military presence and
activities in the Congo hostile to Uganda in A ugust and early September1998, the DRC and her
advocates have developed two counter-arguments. First, as I just mentioned, they have challenged
Uganda’s proof. Hence the empty refrain fro m all three counsel that there is no proof ⎯ no
proof ⎯ to support Uganda’s claims. As we have seen, we need look no farther than the DRC’s
own written pleadings, and the documentary evidence incorporated therein, to find sufficient proof
to support all of Uganda’s assertions regarding the role of Sudan ⎯ a role which, it bears repeating,
the DRC has never expressly denied.
25. The DRC’s second counter-argument, developed for the first time in these oral
proceedings, is that the Sudan’s military activities in the Congo against Uganda are irrelevant. The
DRC’s new theory is that, since Uganda “i nvaded” the DRC on 7A ugust1998, any military
collaboration against Uganda that o ccurred between the DRC and the Sudan ⎯ or between the
DRC and the Ugandan rebel groups ⎯ after that date, constituted self-defence on the part of the
DRC. Thus, according to the DRC, there is no ne ed even to discuss what the DRC or the Sudan
did individually, or what they did in collaboration, after 7 August 1998, because whatever it was, it
was self-defence. So, in addition to “no comment”, the DRC says “not relevant” to the undeniable - 16 -
evidence of collaboration between the DRC, the Su dan and the Ugandan rebels in armed attacks
against Uganda.
26. This theory was very painstakingly articul ated by ProfessorCorten last Friday. As the
Court will recall, he emphasized repeatedly that there were two distinct time periods. The period
before 7August1998, which for him was characterized by no proof of collaboration by the
DRCGovernment with the Ugandan rebe l groups and the Sudan, and the period after
7 August 1998, with respect to which he asserted that collaboration by the DRC with her Sudanese
or Ugandan rebel allies was not unlawful, because everything that the DRC did to Uganda after
7 August 1998 was self-defence.
The evidence in the DRC’s written pleadings showing the DRC’s
complicity with Ugandan rebels
27. I will return in a few moments to the emphasis the DRC now attempts to place on the
date of 7 August 1998. But before doing so, I wish to complete my presentation in response to the
DRC’s argument that there is no proof that the DRC collaborated with the Sudan or the Ugandan
rebel groups in armed attacks against Uganda. I ha ve already brought to the Court’s attention the
extensive and impressive proof ⎯ from the DRC’s own written pleadings, no less ⎯ of the
Sudan’s use of Congolese territory to conduct and support armed attacks against Uganda, and the
DRC Government’s collaboration with the Sudan in that regard. It remains for me to address the
proof of the DRC Government’s collaboration with the Ugandan rebel groups in armed attacks
against Uganda, and this proof is equally extensive and equally impressive, notwithstanding
ProfessorSalmon’s representation to the Court that: “There is not a shred of evidence that the
DRC gave assistance to the Ugandan rebels.” I discussed some of the evidence on collaboration
between the DRC and the Ugandan rebel groups in my opening speech during the first round. I
will not repeat any of those remarks today. I w ill merely refer the Court for a review of that
evidence to CR2005/6, page29, paragraphs40 to 44. Today, I will highlight only proof not
previously discussed in prior sp eeches, starting, as I did earlier,with the proof included in the
DRC’s own written pleadings.
28. This is from the DRC’s Reply, paragraph 3.24, quoting with approval a document dated
13August1998. After describing a “falling out of the three former allies ⎯ Uganda, DRC and - 17 -
Rwanda”, the document relied on by the DRC describes “a new geopolitical order in the region”, in
which President Kabila was
“looking for new external alliances with Sudan, Cuba, the Central African Republic,
Zimbabwe and Angola, as well as other internal groups like the former Rwandan army
and the Interahamwe militias, ex-Mobutu ge nerals, the Mai-Mai, ADF rebels and
Burundian insurgents, who are hostile to the Rwanda, Uganda and Burundi régimes”.
29. This is from Jean-Pierre Bemba’s book, and is attached to the DRC’s Reply at Annex 68:
“From the beginning of the year 1998, secret training camps were opened for
training Rwandan genocide criminals. Abro ad, [President]Kabila sends to Sudan,
who is a sworn enemy of Uganda, several tens of young Congolese, most of whom are
coming from one province, to enable them to train in terrorism and guerrilla tactics.
The Rwandan intelligence was quick to inform [PresidentK ] agame of
[President] Kabila’s undertakings.” (P. 6.)
30. This is from a report cited as authoritative five times in the DRC’s Reply:
“As early as February 1998, the Rwandans started planning a coup, said to have
been vetoed by Uganda on the ground that it was not goin g to be credible either
internationally or regionally. (P. 21.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Early in 1998, all the heads of the intelligence agencies met in Kampala to
discuss the security situation and prepare summits of heads of state... Another
meeting of the same people was held in Kinshasa, where Uganda, Rwanda, Angola
and Zimbabwe were shocked to discover that Sudan was also invited. The heads of
State meeting on security was therefore cancelled. (Pp. 21-22.)
By May1998, there were signs that [President]Kabila was also preparing for
war with Rwanda and Uganda. (P. 21.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
According to BizimaKaraha [who was Pr esidentKabila’s Foreign Minister at
the time], [President]Kabila made a secret trip to Sudan in June1998 to ask for
assistance in preparing for an attack from Uganda and Rwanda. (P. 22.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Privately, regional security officials co mplained that [President]Kabila was
double-faced. While allowing Ugandan troops to enter Congo to pursue ADF rebels,
he was supposedly offering a corridor in the northeast of the country where Sudan
could airdrop weapons for Ugandan rebels. The intensification of attacks by rebel
groups based in Congo on Rwanda and Uga nda by February1998, and the obvious
tolerance of the DRC government to the presence of those groups, increased the
feeling that [President]Kabila had betrayed his former allies after they helped him
take power in 1997.” (P. 22.)
31. All of this evidence of collaboration by the DRC Government with the Ugandan rebel
groups and with the Sudan is extracted from, as I have said, the DRC’s own written pleadings and - 18 -
documents annexed thereto or cited as authoritative therein. I believe that the last quotation from
those pleadings satisfactorily answers the qu estion posed by ProfessorsSalmon, Corten and
Klein ⎯ they do have a penchant for repeating themselves ⎯ as to how it was possible for
PresidentKabila to have been co-operating with Uganda by allowing Ugandan troops to fight the
rebel groups inside Congolese territory, and at the same time to have been collaborating with the
rebel groups both directly and via the Sudan. Th e answer, supplied by the DRC herself, is that
President Kabila was playing a double game, or, according to the language of the DRC’s document,
he was “double-faced”, covertly maintaining military pressure on Uganda while at the same time
overtly appearing to lend some co-operation to her.
32. It must be remembered, as well, that Congolese policy was evolving during the critical
year of 1998, during the first half of which Preside ntKabila was trying to break free of Rwanda.
Congolese policy moved from co-operation with Uga nda at the beginning of the year, through a
hybrid period of mixed co-operation with Ug anda and simultaneous collaboration with her
enemies, to what finally became, in Augus t and September1998, open membership in an
anti-Uganda alliance with the Sudan, Chad, the Ugandan rebel groups, and other assorted elements,
including the ex-FAR and Interahamwe militiamen.
The evidence supplied by Uganda
33. The military intelligence reports supplied to the Court by Uganda, and annexed to her
written pleadings, abundantly confirm this evolution in Congolese policy. All of these reports are
original, contemporaneous documents. They we re not altered or sanitized in any way.
Handwritten reports and statements were not retyped. Grammatical and spelling mistakes, and
other obvious errors as to dates or locations, were not corrected. These documents are the real
thing. The information was collected from defectors, captured rebels, human intelligence agents
and electronic interception of communications. In deed, reading them in context confirms their
authenticity. The information was considered sufficiently reliable by the Ugandan Government
and armed forces either to base their military strategy and tactics on it, which they did, or to
confirm similar intelligence received earlier. The documents were not prepared after the fact or for
use in this case. Rather, they are contemporaneous intelligence reports that had to be declassified - 19 -
so Uganda’s counsel could use them. The fact that they are Ugandan documents affects their
weight, not their admissibility as evidence. Their contents, the circumstances in which they were
created, and the fact that most of the informa tion is corroborated by other sources, including the
annexes to the DRC’s own written pleadings, confirm that the weight to which they are entitled is
substantial.
34. So as not to burden the Court excessively , I will read only a few excerpts from this
evidence. First, a document dated 2 July 1997:
“Of recent, command structure of AFDL [those are the forces loyal to
PresidentKabila] along the border has b een changed. The original devoted
Banyamulenge [that is, the Congolese Tutsi] commanders have been replaced by
former FAZ commanders who have been under reorientation. [The FAZ was the army
under President Mobutu.] These are the sa me commanders who were manning these
borders points and giving sanctuary to these dissidents inside Congo. Their vigilance
and trust to deal with the groups which they once collaborated with, is doubtful.”
(Counter-Memorial, Ann. 12.)
35. Another document, a little bit later, dated 23 February 1998:
“The former Operational Brigade Co mmander, Col.Ebamba, has been posted
back here as Brigade Commander, plus many of the former officers. This officer was
directly in charge of NALU [that is, National Army for the Liberation of Uganda, one
of the rebel groups] ⎯ organization, training, finance control and operations up to the
last moment NALU attacked Uganda on 13/11/96 at Bwera . . . People are wondering
if he is not coming to supply the enemy with arms and ammunitions especially when
among the enemy we have some FAZ... It would be best if he was removed
immediately together with most FAZ who were here and now dominate the current
forces here.” (Counter-Memorial, Ann. 18.)
36. And this, a little bit later, from the debr iefing of ADF defector Fred Tukore, dated
27June1998: “Noted so far as collaborators from this side are Colonel Ebamba (Beni) and
Colonel Mayala, Brigade Commander Bunia. These are to act as a go-between the rebels and the
DRC Government for logistical support and sanctuary in case the going becomes tough.”
(Counter-Memorial, Ann. 20).
37. This is from the debriefing of ADF Commander Junju Juma:
“In 1998 ADF agreed to take on same agreement to Kabila government to fight
Uganda government. Col. Ibamba represen ting Kabila government agreed to support
ADF for those purposes. Later a link up was made between ADF-SUDAN-DRC,
which led to arms and logistics being delivered to ADF through DRC government.”
(Counter-Memorial, Ann. 64.)
38. The evolution continues from the debriefing of ADF leader Lyavala Ali: - 20 -
“Around 1998, Kabila fell out with Museveni. I myself started establishing
links with Kabila through his operatives in the area. The delegation he sent to us for
negotiations included a Minister from Bu tembo and another whose name I do not
recall. By this time, Uganda had not ente red Beni. [That is, this occurred before
Ugandan forces entered Beni on 7 August 1998].” (Counter-Memorial, Ann. 71.)
39. And it continues: this is from the debriefing of ADF Commander Issa Twatera
Embundu:
“A meeting with threeFAC commanders fo llowed. The chef (local leader) of
Masembu arranged for the meeting to take place. The three commanders expressed
disappointment with Museveni’s government and pledged support to ADF. After this
meeting they reported to Colonel Ibamba of FAC in Beni who took message to
President Kabila . . . who agreed to support ADF . . . The government of Congo then
started by supplying ammo.” (Counter-Memorial, Ann. 76.)
40. ADF Commander Embundu also stated:
“FAC started supplying arms and am mo in big quantities, equipment were
airlifted from Sudan to Kisangani, but UPDF captured Kisangani [the Court will recall
that the UPDF first sent a battalion to Ki sangani on 1September1998] before ADF
could pick the arms. Kabila then arranged for more weapons and sent for ADF to
collect them. A team of five people led by Moses went to Kinshasa to negotiate with
Kabila through Khartoum. This was followed by two air droppings of arms and ammo
in Rwenzori ADF bases.” [Ibid.]
41. Finally, I would like to respond to Maître Kalala, who challenged Uganda’s assertion that
Taban Amin, the son of IdiAmin and the leader of the West Nile Bank Front rebel group, was
appointed by President Kabila to the rank of Major General in the FAC (the Congolese army). We
have today submitted to the Court a new report from the public domain, dated 20January2005,
concerning Taban Amin’s statements on this matter, after he returned to Uganda under the
government’s amnesty programme for former rebels:
“Former West Nile Bank Front (WNBF) rebel leader TabanAmin has said he
was promoted to Major General by the la te DR Congo PresidentLaurent Kabila.
Taban Amin yesterday attacked army spokesman Major Shaban Bantariza for
questioning his rank. The son of former di ctator IdiAmin insisted he received the
rank from the government of the DR Congo while Laurent Kabila was President.”
With the Court’s permission, this document will be inserted at tab 20 to the judges’ folder.
42. Mr. President, distinguished Members of the Court, I hope you will forgive me for taking
so much of the Court’s time reviewing the proof of the DRC’s collaboration with the Sudan and
with Ugandan rebel groups in armed attacks agai nst Uganda. I feel, and I hope the Court will
agree, that this was both a necessary and a propo rtionate response to the attack on Uganda’s
evidence by Professor Salmon and his colleagues, who repeatedly advised the Court, that there was - 21 -
no proof ⎯ no proof ⎯ to support Uganda’s claims that th e DRC in fact collaborated with and
licensed both the Sudan and the Ugandan rebel groups in armed attacks against Uganda, both
before and after 7 August 1998.
There was no Ugandan invasion of the DRC in August 1998 (or thereafter)
43. I will now turn to the DRC’s theory that 7August1998 is a watershed date in these
proceedings, because everything supposedly changed on that date. The DRC’s argument is that
Uganda “invaded” her on 7 August 1998, and therefore it was lawful self-defence thereafter for the
DRC to join in or support armed activities agains t Uganda in collaboration with the Ugandan rebel
groups and the Sudan. I should like to observe at the outset that the DRC’s theory concerning the
paramount importance of 7August is new, and represents a significant departure from her earlier
view of the case, as expressed throughout her written pleadings. Previously, the DRC contended
that Uganda instigated the Congolese rebellion against President Kabila and his Government on
2 August 1998, and invaded the DRC on that date in support of the Congolese rebels. But for all
intents and purposes, the DRC abandoned that approach in the oral proceedings. There appear to
be two reasons for this shift in position. Firs t, the evidence does not support the DRC’s earlier
contention that Uganda instigated the Congolese re bellion of 2August, or that she sent in her
troops to support it. Rather, the evidence shows that it was Rwanda, and not Uganda, which
promoted the Congolese rebellion and immediately invaded the DRC, and rapidly advanced
halfway across the country. Second, the DRC appears to have changed position in order to wrap
itself around certain new documents, which the DRC submitted to the Court after the close of the
written pleadings. These new documents are excerp ts from the testimony of UPDF officers to the
Porter Commission about Operation “Safe Haven”, which were discussed by the DRC for the first
time on 11 April, and a document, presented to the Court for the first time last Friday, listing all of
the military deployments of Operation “Safe Haven”, from 7 August 1998 to 31 July 1999.
44. To be sure, these documents show that Ugandan military forces were deployed at Beni,
in eastern Congo, on 7Augus t1998, and this is listed as the first deployment of Operation “Safe
Haven”. But this is nothing new. Uganda stated in her Counter-Memorial, filed more than four
years ago, that her troops were at Beni on 6 a nd 7 August 1998, where they came under fire from - 22 -
ADF forces accompanied by some Congolese army units. Uganda also stated in her
Counter-Memorial that, following the encounter at Beni, her troops deployed to Bunia, also in the
border area, and took control of the airfield there on 13 August. This, too, is listed in the Operation
“Safe Haven” document introduced by Professor Corten last Friday. The document also shows two
UPDF deployments that I described in my speech on 15 April ⎯ to Watsa, also in the border area,
on 29 August and to Kisangani on 1 September. Being the self-appointed mischief-maker that he
is, Professor Salmon strains to make Uganda look like she contradicted herself regarding these
deployments. He accuses Uganda of asserting in her written pleadings that there were no troop
deployments in the DRC during August of 1998, and then acknowledging these deployments at the
oral proceedings. But, as clearly set forth in the Counter-Memorial ⎯ as far back as that ⎯
Uganda has always acknowledged that she had troops in the border region of eastern Congo, and
specifically at Beni and Bunia, as of 7 and 13 August 1998.
45. Of the four UPDF troop contingents inside eastern Congo between 7August and
1 September, the one at Beni came under attack. These were the same troops that had been at Beni
and the surrounding area for more than a year, since President Kabila first invited Ugandan troops
to station themselves in the border areas of east ern Congo to arrest the activities of the ADF and
other Ugandan rebel groups.
As regards Bunia, another place close to th e border where Ugandan troops had regularly
operated and visited for more than a year with the consent of PresidentKabila, the DRC’s Reply
states, at paragraph 2.59: “Thanks to the co mplicity of Mr.Kibonge, in command of the FAC
225thBrigade based in Bunia, the UPDF o ccupied that town without resistance on
12 August 1998.” In other words, the so-called “i nvading” forces were welcomed to Bunia by the
Congolese army commander. Nor was there any combat at Kisangani, where a UPDF battalion
deployed to the airport there on 1September. Kisangani had been taken by Rwandan troops and
their Congolese rebel allies, the RCD, soon after the fighting broke out on 2 August. As set forth in
the DRC’s Reply, from which I read this morning, the Kisangani airport had been a major delivery
point for the DRC Government and Sudanese arms and ammunition to the ADF and other Ugandan
rebel groups. Accordingly, Uganda accepted the invitation from Rwanda and the Congolese rebels
to assure that the airport would not continue to be used for supplying the Ugandan rebel groups. - 23 -
46. Let us look again at the Operation “Safe Haven” document. There is nothing else ⎯
nothing at all ⎯ prior to 17September 1998. There you ha ve it all. Let us recall that this
document was presented by the DRC as part of her case, and was highlighted to the Court only last
Friday. Where does it show an “invasion” of the DRC by Ugandan forces? Not on 7August at
Beni: Ugandan troops were already in the area, with the DRC’s consent, for more than a year. Not
on 13 August, when they went to Bunia, also w ithin their normal zone of operation for over a year,
and were welcomed as friendly forces, not invade rs, by the Congolese brigade commander in that
city. Not on 29August, when they arrived at Wat sa, also in the border area. Not when a small
contingent arrived at Kisangani, already in Rwanda’s hands, to guard the airport. And certainly not
when these four small contingents sat still and re mained in place during this entire period prior to
11 September.
47. The DRC and her counsel have not cha llenged Uganda’s evidence as to the number or
location of UPDF forces in eastern Congo during August and early September 1998. As Uganda
has said, during this period there was only a modest reinforcement of the approximately
2,000 troops that had been there since at least April 1998, in order to shore up her border protection
efforts after the outbreak of civil war in eastern Congo and the complete breakdown of law
enforcement authority in the region. And all of these troops were confined exclusively to the
border areas of eastern Congo, except for the small contingent guarding the airport at Kisangani,
which was the supply gateway to the border areas. This is confirmed by all of the excerpts from
the testimony of the Ugandan officers to the Porter Commission, which I discussed on 15April,
and by the new Operation “Safe Haven” document introduced by the DRC’s advocates last Friday.
Once again, the DRC’s case is defeated by her own documents; they show beyond doubt that there
was no Ugandan “invasion” of the DRC in August 1998.
There was no “joint offensive” in August 1998
48. On Monday, ProfessorCorten invoked th e Porter Commission testimony of former
Ugandan General James Kazini in support of the contention that there was a Ugandan invasion of
the DRC on 7 August 1998. But General Kazini sai d no such thing. He actually said two things,
which Professor Corten strained to stitch together into the same thought. First, General Kazini told - 24 -
the Porter Commission that Operation “Safe Haven” began on 7August at Beni. That is
uncontested. Second, in answer to a different question, he said that, as part of Operation “Safe
Haven”, Ugandan forces “decided to launch an offensive together with the rebels”. General Kazini
did not testify that this offensive was launched on 7August. He did not give any date for the
launching of the offensive. The best, indeed the only, evidence on the date of the joint offensive is
the Operation “Safe Haven” document that the DRC introduced last Friday. It is ⎯ as the DRC’s
advocates have correctly represented it to be ⎯ a comprehensive list of all military activities in the
DRC carried out by the UPDF, as well as allie d Congolese rebel forces, between August 1998 and
July 1999. It shows joint military engagement s involving both the UPDF and the Congolese rebel
forces beginning in June1999, as the UPDF prepared for its major and final offensive on
Gbadolite. These are shown in items 47, 49, 52, 54, 55 and 64, where the units involved are listed
as “FLC”, which are the initials for the MLC’s armed forces. They show participation by the MLC
in the joint offensive on Gbadolite between 30 June and 4 July 1999.
49. Earlier in my presentation, I read from excerpts of Jean-Pierre Bemba’s book, annexed to
the DRC’s Reply, and cited therein, which confir m that the MLC fought in collaboration with the
UPDF in a joint offensive against Gbadolite. The MLC, it will be recalled from the DRC’s own
oral presentation, was not even created until la te September1999, and did not have a trained
fighting force until sometime thereafter. There is no other evidence in this case of a joint offensive
by Ugandan and Congolese rebel forces. It plainly did not occur in August 1998.
The DRC’s own official documents confirm there was
no Ugandan presence at Kitona
50. Last Friday, ProfessorCorten revived the shibboleth of Kitona. Here was yet another
attempt to portray Uganda as having “invaded” the DRC in early August 1998. He repeated the
accusation that Ugandan troops participated in th e attack on Kitona, in far western Congo, on
4August1998. But he cited no credible evidence to support his claim. I already addressed, on
15April, the unreliability and insufficiency of the contradictory journalistic accounts that have
been offered as proof by the DRC. In addition, I showed that the pilot who allegedly flew Ugandan
soldiers to Kitona, and whose affidavit was expres sly offered for that purpose, actually said he did
not know whether there were any Ugandan soldiers on the plane, and could not identify any of the - 25 -
soldiers as Ugandans. I was surprised, therefore, to hear Professor Corten, last Friday, invoke this
same affidavit in support of his contention that Ugandan soldiers were flown to Kitona.
51. In fact, I was particularly surprised that Professor Corten and the DRC would attempt to
rely on such affidavit testimony, produced years after the events in question and expressly for the
purpose of assisting the DRC in this case. Both ProfessorCorten and ProfessorSalmon have
strongly denounced the affidavit testimony offered by Uganda on the ground that it was produced
unilaterally and specially for purposes of this case , and therefore is so inherently biased and
unreliable that it should not be considered as evid ence by the Court. Uganda would say the same
about the recently produced and self-serving affidavits offered by the DRC, and with even more
justification. The affidavits submitted by th e DRC on the Kitona matter were not only produced
specially for purposes of this case, but they were all produced by the infamous DEMIAP, the
DRC’s infamous military intelligen ce service, which has repeatedly been accused by independent
third parties, including the United States Department of State, of gross human rights violations,
including torture of those unlucky enough to fall into its hands. To the same effect is the affidavit,
prepared solely for purposes of this case, submitted on behalf of the notorious Colonel Ebamba, the
Congolese army officer who facilitated military collaboration between the DRC Government and
the Ugandan rebels. According to the same standa rds set by Professors Salmon and Corten, all of
these recently produced and self-serving affidavits, prepared specially for this case, should be
treated as nullities.
52. The coup de grâce for the DRC’s Kitona allegations, however, is supplied by the DRC’s
own, official, contemporaneous statements ⎯ that is, the ones that were not created specially for
the purposes of this case. To be specific, on 11 August 1998 the DRC formally complained to the
United Nations about the attack on Kitona. Here is what the DRC said about the attack at that time,
shortly after it occurred, and long before it thou ght about initiating a case against Uganda in this
Court. The entire document is part of the D RC’s written pleadings, at Annex 41 to the DRC’s
Reply, and I quote from that official statement by the DRC:
“As soon as the repatriation of the Rwandan soldiers was over, the Congo was
the victim of armed aggression by Rwanda and its allies... Many columns of
Rwandan army trucks filled with well-a rmed Rwandan soldiers violated Congolese
borders in order to take the towns of B ukavu and Goma on 2 and 3 August . . . Three
Boeing aircraft belonging to Congolese private companies were commandeered by a - 26 -
Rwandan subject who had served as Chief of Staff of the Congolese Armed Forces
until the end of July. The aircraft tran sported some 800 Rwandan soldiers to the
Kitona military base in the western part of the Congo, with the objective of rallying
the support of the Congolese soldiers being trained at the military base, and taking the
port of Matadi, vital to the Congolese capital of Kinshasa . . .”
The aircraft transported some 800 Rwandan soldiers.
53. A short time later, on 31 August 1998, the DRC again reported to the United Nations on
the Kitona attack, and once again reported that Rwanda ⎯ and only Rwanda ⎯ carried out the
attack on Kitona. The second Congolese report to the United Nations, like the first, made no
mention of Uganda in connection with the attack on Kitona. Only Rwanda was accused by the
DRC of attacking Kitona (Memorial of the Democrat ic Republic of the Congo, Ann.27, p.7). I
trust that, now that these contemporaneous, official and comprehensive statements of the DRC to
the United Nations have been brought to the Court’s attention, there is no need to spend more time
on the subject of Kitona.
The significance of 11 September 1998
54. The DRC, then, has failed to support her or iginal claim that Ugandan troops invaded the
Congo on or immediately after 2 August 1998, or her new claim, introduced in these oral
proceedings, that Ugandan troops invaded the Congo on 7 August 1998. The evidence shows that
the watershed date in this case was not 2 Augus t 1998, or 7 August 1998, but 11 September 1998.
That is the date on which Uganda’s High Comma nd decided, for reasons duly recorded in a
confidential internal memorandum that Uganda declassified and presented to this Court, to deploy
thousands of new troops to the DRC, for the purpose of subduing the Ugandan rebels and the
combined military forces led by the Sudan and Chad that were committing and supporting armed
attacks against Uganda from Congolese territory. I discussed this document, its meaning and its
implications, at some length on 15 April, and I w ill not repeat myself here. About this important
document, I will say only that Professor Corten’s attempt, last Friday, to construe the language in a
way that would support the DRC’s claim that Ugandan troops invaded the Congo before
11September is illogical and unsustainable. Pr ofessor Corten focuses on the use of the word
“maintain” ⎯ as in, quoting from the document, “the High Command sitting in Kampala this
11thday of September, 1998 resolves to maintain forces of the UPDF in the DRC in order to
secure Uganda’s legitimate security interests...” ⎯ and he says: “Aha! Now I’ve got them. - 27 -
Maintain means to keep them th ere, so the Ugandan forces referred to by this memorandum must
have already been there as of 11 September.”
55. There are several flaws in this reasoning, all of them fatal to Professor Corten’s
argument. In the first place, in English, “maint ain” does not have the same meeting as “retain”.
“Maintain” can mean to keep someone or somethi ng in place, but it can also mean to put someone
or something in place and support them while they are there. In any event, it is silly to quibble
about word choice. The document was not writ ten by international lawyers, and it was not
intended for publication. It was intended to record what the High Command considered a
momentous decision, which it was. In any case, even in the event of some ambiguity in the
wording, the meaning of the document is fully de monstrated by the subsequent conduct of those
involved in its creation. The evidence given to the Porter Commission, for example, which I
discussed on 15 April, showed that, on 12 Septem ber 1998, one day after the decision taken on
11September, orders were given to Ugandan forces, for the first time, to advance westward from
their existing positions in the border areas of eastern Congo, and engage with Sudanese and
Chadian forces then located at Isiro. In the da ys and weeks that followed, thousands of fresh
Ugandan troops were sent into the DRC, eventu ally bringing the total number deployed near to
10,000. The movement of the Ugandan forces from their four locations in eastern Congo ⎯ Beni,
Bunia, Watsa and Kisangani airport ⎯ is shown on the Operation “Safe Haven” document that the
DRC brought to the Court’s attention last Friday . It shows no movement of any kind between
1 September, when a contingent of UPDF arrived at Kisangani airport, and 17 September, six days
after the 11 September decision. In fact, Uganda introduced no new troops into the DRC during
this period, and the DRC has produced no evidence to the contrary. The lack of military activity
before 11 September, compared to the heavy volum e of activity thereafter, demonstrates that the
watershed date in this case is 11 September 1998, because that is the date on which Uganda
decided to introduce significant numbers of new tr oops into the Congo and, for the first time, to
deploy them beyond the immediate border area.
56. The reasons Uganda took this momentous decision are set forth in the 11September
memorandum itself. In our previous speeches to the Court, both Mr.Brownlie and I have fully
identified and discussed those reasons, and described the circumstances that led Uganda to take this - 28 -
action. Our remarks on this subject can be found at CR 2005/6, pages38 and 39, paragraphs60
and 61, and CR 2005/7, pages 14 and 15, paragraphs 18 and 19. As Mr. Brownlie explained on 18
April, and as he will reaffirm today when he fo llows me to the podium, Uganda’s actions on and
subsequent to 11September1998 were a res ponse to armed attacks from Congolese territory
carried out by Ugandan rebels fully supported and directed by the Sudan, which already had
commenced her own direct military operations against Uganda, in collaboration with the
Government of the DRC. There is no evidence of any other motive on the part of
PresidentMuseveni and the High Command. Ther e is, accordingly, no merit whatsoever to
Professor Philippe Sands’s suggestion on Monday that “access to gold, diamonds and natural
resources was at the heart of the conflict”. In fact, the Porter Commission, for whose
independence, accuracy and reliability Professor Sands fully vouches, totally rejected the idea that
PresidentMuseveni or the Ugandan Government sent the UPDF into the Congo for economic or
commercial reasons. There is simp ly no basis for, and no evidence to support, such a slanderous
claim against Uganda’s senior governmental leaders.
Concluding remarks
57. Mr.President, distinguished Members of the Court, when I spoke to the Court on
15April, as the first of Uganda’s speakers, I suggested that this is a case in which there are no
angels and no demons, and where both Parties are victims. I believe the evidence that has been
placed before the Court, both in the written and oral proceedings, a nd on behalf of both Parties,
demonstrates what I said to be true. The DRC was a victim. It was a victim of invasion by foreign
forces, the forces of Rwanda, which very nearly succeeded in capturing Kinshasa and overthrowing
the DRC Government. Uganda, too was a victim. It was a victim of armed aggression by a foreign
power, the Sudan. Unfortunately, the two States guilty of invasion and armed aggression could not
be made parties to these proceedings. Ironically and sadly, only the two victim States are here
before you, left to fight it out between themselve s. Two poor countries that have far more urgent
uses for the precious resources they are forced to spend in litigation ⎯ uses such as schools,
hospitals, fighting the AIDS pandemic, and economic development. Uganda acknowledges that the
Government of the DRC had every right to defend itself and its territory against the invasion by - 29 -
Rwanda, including the right to seek military assistance from third States. Were it not for obtaining
that assistance, especially from Zimbabwe and Angola, the DRCGovernment very likely would
have succumbed to the Rwandan army. Unfortunately , to save itself, one of the foreign Powers to
which the DRC turned for military support in its hour of need was the Sudan. The Sudan was only
too willing to provide its support, for a price. And that price was the freedom to deploy her own
forces to eastern Congo and escalate the armed attacks that its Ugandan rebel proxies were carrying
out against Uganda, as well as to attack Uganda directly from strategically located airfields in
eastern Congo. Uganda had no reasonable alternative but to commit her military forces to the DRC
to defeat the rebel groups and their Sudanese masters. These are the facts. This is what, at the end
of the day, the proof shows. In these circumstances, Uganda most respectfully submits, there is not
an adequate basis in fact or in law to sustai n the DRC’s claim that Uganda has committed armed
aggression against her.
58. Mr. President, distinguished Members of the Court, I am reminded of what my very good
friend ProfessorSands said at the outset of the proceedings when he quoted former
Judge Sir Robert Jennings as giving the following advi ce: keep the facts simp le. In all honesty, I
do not think either side has done that in this cas e. But I think they can both be excused, because
the facts in this case are far from simple. Indeed, they are extremely complex. It will not be an
easy task for the Court to sort them all out. I hope my effort to elucidate these facts, which
commenced on 15 April and concludes here now, will prove to be of some benefit to the Court, and
lighten its burden in this regard.
Pr5s9.i.stti,nguishe d Members of the Court, this concludes my presentation on
the evidence bearing on Uganda’s claim of self-def ence. It has been an honour, once again, to
appear before you and I thank you for your cour teous attention. I should now like to ask you,
Mr.President, if you would see fit to call my dis tinguished colleague, IanBrownlie, as Uganda’s
next speaker or, if you deem it appropriate, to select this moment as an appropriate time for the
morning break. - 30 -
The PRESIDENT: Thank you, Mr. Reichler. It is time to have a break of ten minutes, after
which I shall give the floor to Professor Brownlie.
The Court adjourned from 11.15 a.m. to 11.30 a.m.
The PRESIDENT: Please be seated. Professor Brownlie, you have the floor.
Mr. BROWNLIE: Thank you, Mr. President.
S ELF -DEFENCE
Mr.President, distinguished Members of the Court, in my first second round speech I shall
respond to the Congolese presentations bearing upon self-defence. And in doing so, I shall refer to
certain questions of evidence and the issue of belligerent occupation.
First, there is the question of evidence. The representatives of the Congo have repeatedly
alleged that Uganda has been at fault in he r handling of evidence. Uganda sees the matter
differently. International justice is administered within a rule of law framework and this is the
International Court of Justice, after all. It fo llows that the principles of evidence apply and should
be applied with appropriate rigour and not flexibly, as suggested by our distinguished opponents.
At the second round, the position on questions of evidence has not changed very much.
Professor Klein continues to assert that there is no ev idence of direct participation in armed attacks
by the central Government. This is not the case and my colleague, Mr. Reichler, has pointed that
out very effectively this morning.
In a different context, that of alleged human rights violations, MaîtreKalala has criticized
Uganda’s response to the dysfunctional presentation of the case on human rights by our
distinguished opponents. But, Mr.President, in doing so he merely perambulated around the
problem without solving it. Indeed, in my opini on, in the result, the confusion has been both
widened and deepened. Moreover, the specific examples of error and wrong identification of
armed forces provided in my first round speech were not challenged. On these matters the
transcript speaks for itself. - 31 -
The Congolese delegation continues to adopt an approach to the principles of evidence
which is baffling. Maître Kalala argues that because official documents are “unilaterally” produced
they should be inadmissible. But such documents, of course, are by their very nature unilaterally
produced. They are evidence, of course, as recognized in case after case in front of this Court.
The Congolese approach to evidence has another unusual aspect. Apparently, evidence must
consist of documents or of written instruments. What basis does that have in the law? None
whatsoever. No legal authority exists which woul d confine the admissibility of evidence in such a
way. The conduct of States is well-recognized as a form of evidence as, for example, in the Temple
case (Merits) (I.C.J. Reports 1962, p.6). Moreover, in the Corfu Channel case on the Merits in
1949, the Court accepted evidence of what it called the “attitude” of Albania ( I.C.J. Reports 1949,
p. 4).
The true basis of the Congolese approach is the desire to exclude unfavourable sources of
evidence, and especially evidence of the meetings which Congolese leaders had at critical junctures
with the leaders of the armed groups based in eastern Congo, and also the key meetings between
Congolese and Sudanese officials. The eviden ce of these activities on the part of the Congo
necessarily takes the form of intelligence sources, to some extent. Governments are permitted to
speak of their own knowledge. In the Corfu Channel case on the Merits, the United Kingdom was
allowed to refer to the existence of an Admiralty Order relating to the purpose of the passage of the
British warships. The Court also admitted various forms of evidence concerning the conduct of the
two Governments, and this without undue difficulty.
Simtilirly, Platforms case, the Court showed no sign of rejecting evidence simply on
the basis that the various forms of evidence were produced “unilaterally” by the respective
Governments.
And one further point. The representatives of the Congo would treat as inadmissible even
protest notes and official reports produced, as would be normal, after incidents such as the sacking
of an embassy. Such documents cannot be set aside on the basis of a presumption of nullity or
inadmissibility. The rule of law principle is surely the presumption of regularity or validity.
Before I leave the subject of evidence, I must, on behalf of the delegation of Uganda, refer to
the allegation by counsel of the Congo that evid ence was “fabricated” by the representatives of - 32 -
Uganda. This allegation, and it was repeated several times, is unacceptable. No evidence of
fabrication was given. It would be unfortunate indeed, if the less experienced counsel sitting in
court were to think that such behaviour were norma l. I have not heard such an allegation in this
Court before.
After these preliminary matters, I can move on to Professor Klein’s speech on self-defence in
the second round (CR2005/12, pp.23-42). It is an unfortunate circumstance that ProfessorKlein
chose to ignore or, which is the same thing, not to take seriously, the central elements of my
arguments on self-defence. His response was to rely upon generalities about preventive action.
His position on the question of armed attacks was, in the first, place, to assert that there was
no evidence of direct participation by the centr al Government of the Congo in armed attacks
against Uganda. This question has been addressed this morning, effectively and at great length, by
Mr. Reichler. There is evidence of such participa tion and, indeed, it is referred to in the Congo’s
own pleadings.
If I can return to the law. Professor Klein and his colleagues studiously avoid a careful or,
indeed, any examination of the concept of an armed attack. And, as I pointed out in the first round,
the Congo is shy of the significant views of Professor Dinstein.
Professor Klein has made some progress in this respect and Professor Dinstein is now cited
in a footnote, in the transcript at page 26 (CR 2005/12). The text is not, however, quoted. Dinstein
deals expressly with the problem of armed bands as follows ⎯ and there is a rubric: “Support of
armed bands and terrorists”.
t“In Nicaragua case, the International Court of Justice held that ‘it may be
considered to be agreed that an arme d attack must be understood as including not
merely action by regular armed forces across an international border’, but also the
despatch of armed bands or ‘irregulars’ into the territory of another State. The Court
quoted Article3 (g) of the General Assembly’s Definition of Aggression (see supra,
Chap. 5, B), which it took ‘to reflect customary international law’.”
And Dinstein continues:
“It may be added that, under the Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations, adopted una nimously by the General Assembly in
1970, ‘every State has the duty to refrain from organizing or encouraging the
organization of irregular forces or armed bands... for incursion into the territory of
another State’. The Draft Code of Offences against the Peace and Security of
Mankind, formulated by the International Law Commission in 1954, listed among - 33 -
these offences the organization, or the en couragement of the organization, by the
authorities of a State of armed bands for incurs ions into the territory of another State,
direct support for such incursions, and even the toleration of the use of the local
territory as a base of operations by armed bands against another State.
Since assaults by irregular troops, ar med bands or terrorists are typically
conducted by small groups, employing hit- and-run pinprick tactics, the question
whether they are of ‘sufficient gravity’ and reach the de minimis threshold of an armed
attack ⎯ or the consensus Definition of Aggression ⎯ is clearly apposite (see
supra (ii)). This is not to say that every single incident, considered independently, has
to meet the standard of sufficient gravity. A persuasive argument can be made that,
should a distinctive pattern of behaviour emerge, a series of pinprick assaults might be
weighed in its totality and count as an armed attack (see infra, Chap. 8, A (a),(ii)).
The Judgment in the Nicaragua case pronou nced that ‘while the concept of an
armed attack includes the despatch by one St ate of armed bands into the territory of
another State, the supply of arms and othe r support to such bands cannot be equated
with armed attack’. The Court did ‘not believe’ that ‘assistance to rebels in the form
of the provision of weapons or logistical or other support’ rates as an armed attack.
These are sweeping statements that ought to be narrowed down. In his dissenting
opinion, Judge SirRobertJennings expressed the view that, whereas ‘the mere
provision of arms cannot be said to amount to an armed attack’, it may qualify as such
when coupled with ‘logistical or other support’. In another dissent, JudgeSchwebel
stressed the words ‘substantial involveme nt therein’ (appearing in Article 3 (g) of the
Definition of Aggression), which are incomp atible with the language used by the
majority.”
In the third edition of Dinstein’s monograph, publis hed in 2001, the text continues in the following
form:
“When terrorists are sponsored by Arcadia against Utopia, they may be deemed
‘de facto organs’ of Arcadia. [T]he imputability to a State of a terrorist act is
unquestionable if evidence is provided that the author of such act was a State organ
acting in that capacity. Arms shipments al one may not be equivalent to an armed
attack. But an armed attack is not extenuate d by the subterfuge of indirect aggression
or by reliance on a surrogate. There is no real difference between the activation of a
country’s regular armed forces and a military operation carried out at one remove,
pulling the strings of a terrorist organiza tion (not formally associated with the
government apparatus). Not one iota is diminished from the full implications of
international responsibility, if ‘it is establis hed’ that the terrorists were ‘in fact acting
on behalf of that State’.”
And the last paragraph is as follows:
“In 1999, the Appeals Chamber of the International Criminal Court for the
Former Yugoslavia (ICTY) pronounced, in the Tadic case, that acts performed by
members of a military or paramilitary group organized by a State may be considered
‘acts of de facto State organs regardless of any specific instruction by the controlling
State concerning the commission of each of those acts’. The ICTY focused on the
subordination of the group to overall control by the State: the State does not have to
issue specific instructions for the directi on of every individual operation, nor does it
have to select concrete targets. Terrorist s can thus act quite autonomously and still
remain de facto organs of the controlling State.” - 34 -
And so, Mr.President, contrary to the complaint by ProfessorKlein, it can be seen that
ProfessorDinstein did take account of the Tadic case ⎯ when he was able to ⎯, and it made no
difference to his basic reasoning. It is this basic reasoning which Professor Klein has ignored, and
if I could test the patience of the Court by emphasizing the key passage in Dinstein which the other
side is very shy of. Remember, he said:
“Since assaults by irregular troops, armed bands or terrorists are typically
conducted by small groups, employing hit- and-run pinprick tactics, the question
whether they are of ‘sufficient gravity’ and reach the de minimis threshold of an armed
attack ⎯ or the consensus Definition of Aggression ⎯ is clearly apposite (see
supra (ii)). This is not to say that every single incident, considered independently, has
to meet the standard of sufficient gravity. A persuasive argument can be made that,
should a distinctive pattern of behaviour emerge, a series of pinprick assaults might be
weighed in its totality and count as an armed attack.”
This passage appears in the Counter-Memoria l dated April 2001 and four years later the
silent response of the Congo continues. This passage remains unchanged from Dinstein’s first
edition of 1988.
There remains the question of toleration of the presence of armed bands which are known to
carry out operations against the territory of a neighbouring State.
The position of the Uganda is clear, and Prof essor Klein has signally failed to deal with the
argument made on behalf of Uganda in the first round. With your indulgence, Mr. President, could
I remind the Court Uganda argued as follows. I said:
“I come now to one of the most serious flaws in ProfessorCorten’s argument.
On the one hand, he asserts that there were no ‘armed attacks’ by the Congo against
Uganda (CR2005/3, paras.10-13). These assertions are to be understood as
statements that the attacks on Uganda la unched by armed bands based in the Congo
were not under the control of the Central Government of the Congo. At the same
time, the Congo admits the presence on its territory of long-established groups of
militia (see the Rejoinder of Uganda, paras. 65-67).
The missing link is provided by the principles of State responsibility and the
duty to prevent the use of national territory by armed bands launching armed actions
against neighbouring States. My opponent fails to recognize that, in accordance with
the principles of State responsibility, the Congo is responsible for the armed attacks of
the various rebel groups. This responsibility arises in the conditions set forth in the
Definition of Aggression of 1974 in which paragraph (g) calls for the direct
involvement of a State. But... it also exists in accordance wi th the principles of
general international law in conditions where there is simply a failure to control the
activities of armed bands. In her Reply (para. 3.131) the Congo seeks to argue that the
responsibility of the territorial sovereign is limited by the provisions of Article 8 of the
Articles on State Responsibility adopted by the International Law Commission on a
second reading in 2001. This Article has b een quoted already, and it refers to conduct - 35 -
directed or controlled by a State. According to the Congo this provision applies a
stringent test to the attribution to a State of the acts of private persons.” (CR
005/7,
pp. 29-30, paras. 76-77.)
I then dealt with that point and continued.
“Where does this reasoning lead? It inevitably leads back to Article 51 of the
Charter, which reserves the right of self-defence in terms of customary law ‘if an
armed attack occurs’.
As in the case of the other aspects of the concept of an armed attack, armed
attacks by armed bands whose existence is tolerated by the territorial sovereign
generate legal responsibility and therefore constitute armed attacks for the purpose of
Article 51. And thus, there is a separate, a super-added standard of responsibility,
according to which a failure to control the activities of armed bands, creates a
susceptibility to action in self-defence by neighbouring States.” ( Ibid., p. 30,
paras. 79-80.)
Mr. President, Professor Klein made no attempt to respond to these points.
There is a reasonably full literature con cerning armed bands going back to the period
between the two world wars. A good number of countries adopted definitions of aggression
according to which there was responsibility for failing to control armed bands carrying out
activities on the territory of neighbouring States. The practice is described in an article published
by the speaker in the International and Comparative Law Quarterly (October 1958, pp. 712-735).
The subject appears in other sources, including Brownlie, International Law and the Use of Force
by States (1963, pp.386-387, and in other passages). Whilst the article of 1958 appears in a
footnote on the transcript in the first round, the delegation of the Congo has shown little interest in
the previous practice.
There is a further and important point which Pr ofessor Klein has ignored. In the first round
Uganda explained the connection between the con cept of armed attack in the Charter of the
UnitedNations and the principle of responsibilit y for toleration. The point was expressed as
follows on behalf of Uganda;
“If the concept of necessity of self-defen ce is to be applied on the basis of
effectiveness and common sense, it is . . . the view of the victim State and its nationals
which must prevail. And that view must be based upon an objective standard related
to the effects of the armed attacks. The consequen ce is that, for the victim State, the
results remain the same, and the necessity remains the same, whether the State from
which the armed attacks emanate is directly involved or is only responsible for
harbouring or tolerating the armed bands responsible.” (CR 2005/7, p. 34, para. 92.)
This received no response in the second round. - 36 -
There are a few further points concerning Professor Klein’s speech in the second round. In
the first place, he contends that in my response in the first round I did not respond to the Congo’s
arguments relating to necessity and proportionality. With respect, I did deal with these questions
thoroughly in CR 2005/7 (pp. 28-32). It is true to say that the po sition of Uganda is that necessity
is to be regarded as an inherent part of the concept of self-defence and not as a separate particle,
but that is not a question of ignoring necessity, as I endeavoured to explain.
In his second round speech Professor Klein argues that the requirement of necessity was not
satisfied because, it is alleged, Uganda made no complaint to the Security Council.
This issue has also been ex amined carefully in my first round speech and the Court is
respectfully referred to the relevant passages in the transcript (CR 2005/7, paras. 90 and 91).
Mr. President, I can now summarize the position of Uganda on the question of self-defence.
First, in the case in which the territorial s overeign tolerates the activities of armed bands and
the armed attacks which they launch against a nei ghbouring State, the failure to control renders the
State harbouring such armed bands susceptible to action in accordance with Article 51 by the
victim State. This consequence is the result of the application of well-recognized principles of
State responsibility and the existence of directi on and control by the territorial sovereign is not
necessary.
Secondly, there is responsibility for the armed attacks, and a liability to face defensive
action, in those cases in which there is direct involvement in accordance with the General
Assembly’s definition of aggression. Such direct involvement is denied by the Congo.
These propositions of law are not offered on the basis that one formula fits all cases. The
chronology of the case is very important and the s ituation changed in parallel with the changes in
the political alliances of the central Government of the Congo.
Mr. President, what is absolutely clear is that the applicant State does not deny the existence
of the facts to which the first proposition ⎯ the proposition based upon toleration of armed
bands ⎯ applies. In relation to the second proposition ⎯ concerning direct involvement in the
activities of armed bands ⎯ Mr. Reichler has this morning presented the evidence of such
involvement by the Central Government of the Congo and it is also available in the written
pleadings. - 37 -
Mr. President, I would thank the Court for its patience and courtesy and ask you to give the
podium to my colleague, Mr. Reichler.
The PRESIDENT: Thank you, Professor Brownlie. I now give the floor to Mr. Reichler.
RMEr. HLER:
The DRC’s consent to the presence of
Ugandan military forces in Congolese territory
1. Mr.President, distinguished Members of the Court, now that Mr.Brownlie has finished
Uganda’s treatment of the issue of self-defence, I will address the issue of the DRC’s consent to the
presence of Ugandan troops in Congolese territory.
The Lusaka Agreement is a manifestation of consent
2. Mr. President, distinguished Members of the Co urt, there are two words that strike fear in
the hearts of my distinguished colleagues on the other side of the podium: Lusaka Agreement.
Whenever these words are mentione d, the DRC’s counsel start running for cover. The reason is
clear. The Lusaka Agreement constitutes formal consent for the presence of Ugandan military
forces in the DRC from 10 July 1999 forward. After 10 July 1999, the DRC has no valid argument
that the physical presence of Ugandan forces in the Congo was unlawful.
3. Despite the paramount importance of the Lusaka Agreement to this case, or perhaps
because of it, counsel for the DRC have done everyt hing possible to avoid dealing with it. Thus
far, they have addressed the Court for 19½ hours in these oral proceedings, of which they devoted a
total of 15 minutes to the Lusaka Agreement. Professor Corten was the first DRC spokesman on
this subject. In five minutes, he dismissed the Lusaka Agreement as a mere ceasefire agreement,
provisional in nature and binding on no one. On Monday, the DRC not only abandoned this
argument; it abandoned poor Professor Corten. Th e unhappy task of dealing with the Lusaka
Agreement was reassigned to Professor Klein, who devoted ten minutes to it. But his argument
fares no better than that of Professor Corten.
4. The DRC and her advocates continue to argue that the Lusaka Agreement did not
constitute authorization for Ugandan troops to remain on DRC territory after 10 July 1999. Indeed, - 38 -
my very able opponent, Professor Klein, went so far as to argue that the Lusaka Agreement did not
authorize Uganda’s presence even for the 180-day period initially provided for in Annex“B”
(which was subsequently extended with the agreem ent of all parties, including the DRC). With
respect, Professor Klein’s reading of the Agreement could not be more mistaken.
5. Uganda’s chain of legal reasoning is, I submit, unbreakable. In fact, as I will show, it is
confirmed by the DRC’s own logic. I begin from first principles. As I observed in my first speech
on the subject of consent, on 19 April, the Court expressly stated, in its Order on Interim Measures,
that the Lusaka Agreement is “an international agreement binding on the Parties” (Order on Interim
Measures, para.37). Therefore, Uganda (or any of the other parties for that matter) could not
validate the terms of the Agreement without running afoul of her treaty obligations. That is step
one.
6. Step two consists of the terms of the Agreement itself and the requirements they impose.
Paragraph11.4 of AnnexA (projected on the scr een behind me) states that “All forces shall
remain” ⎯ “shall remain” ⎯ in place “until: in the case of foreign forces, withdrawal has started
in accordance with the JMC [Joint Military Commission]/OAU, United Nations withdrawal
schedule.” This language is unmistakable. “Shall”, “remain”, “until”. “Shall”, of course, is
imperative, unequivocal. It leaves no margin for in terpretation. “Remain” needs no elaboration.
“Until” in this context signifies th at foreign forces were not to wit hdraw prior to the realization of
the condition precedent identified in paragraph11.4 ⎯ the adoption of “the JMC/OAU, United
Nations withdrawal schedule.” As I demonstrat ed on 19April, the Lusaka Agreement expressly
provided that the “JMC/OAU, United Nations withdrawal schedule” was not to commence ⎯
withdrawal was not to commence ⎯ until after the designated armed groups that had been
attacking Uganda and other neighbouring Stat es were disarmed, demobilized, resettled and
reintegrated (CR 2005/8, pp.23-25, paras.15-20). Th is is set forth clearly in Annex“B”, the list
and sequential order of the so-called “Major Ceasefire Events.”
7. Step three in this chain is simply the conc lusion to be drawn: Uganda could not withdraw
her troops in any manner inconsistent with the withdrawal schedule adopted by the JMC, OAU and
United Nations, without violating her internati onal treaty obligations. Consequently, the only - 39 -
logical way to read the Lusaka Agreement is as authorization, indeed as an express mandate, for
Uganda’s troops to remain in the DRC until the withdrawal schedule called for their withdrawal.
8. Now, my distinguished opponents are fond of citing the Luanda Agreement of
September 2002 as a counter-example to Lusaka. Bo th Professors Corten and Klein have referred
to the Luanda Agreement as an archetypical mani festation of consent. The operative provisions of
the Lusaka Agreement, they say, are different. I be g to differ. In fact, what is striking is how
similar the relevant provisions of the two agreements are.
9. The language of Article1, paragraph4, of the Luanda Agreement is projected on the
screen behind me, and is also in the judges’ folder at tab8. It reads: “The Parties agree that the
Ugandan troops shall remain on the slopes of Mt. Ruwenzori until the parties put in place
mechanisms guaranteeing Uganda’s security . . .”
10. Uganda, of course, agrees that this is i ndeed an unambiguous manifestation of consent.
And since it is, so too is the Lusaka Agreement. The linguistic formulation in both treaties is the
same: Ugandan troops “shall remain” ⎯ in both treaties ⎯ in location “until” ⎯ in both
treaties ⎯ the occurrence of a specific condition preceden t. In the case of Luanda, that condition
precedent was the creation of a mechanism guaranteeing Uganda’s security, and, in the case of
Lusaka, the condition precedent was the formula tion by the JMC, OAU and United Nations of a
withdrawal plan, following the disarmament, demobilization, resettlement and reintegration of the
armed groups that had attacked Uganda and other States from Congolese territory.
11. Since the linguistic formulation is the sa me, the legal consequence also must be the
same: the Lusaka Agreement is a manifestati on of the Congo’s consent to the presence of
Uganda’s troops in the DRC, just as the Lua nda Agreement is a manifestation of the DRC’s
consent to their presence. The only material diffe rences between these two treaties in this regard
are in the different conditions precedent to the withdrawal of the Ugandan forces, which I have just
described, and in the locations where the Uganda n troops were authorized to remain pending the
fulfilment of these conditions precedent. In the Lu anda Agreement, the UPDF was authorized to
remain on the western slopes of the Ruwenzori M ountains; in the Lusaka Agreement, they were
authorized to remain in all of their existing locations in the DRC. - 40 -
12. As I explained in my speech last Tuesday , both the Secretary-General and the Security
Council confirmed Uganda’s reading of the Lusaka Agreement. When in April2001, Uganda
announced that it was going to unilaterally w ithdraw all her troops from the DRC, the
Secretary-General implored her not to do so in writing. Thus, from the perspective of the United
Nations, Uganda was not only author ized to remain in the Congo, but required to do so, at least
pending the implementation of the withdrawal plan called for by the Agreement. I listened
carefully to my learned opponents’ first and second round presentations on the subject of consent.
Neither Professor Corten nor Professor Klein even adverted to the Secretary-General’s letter, much
less confronted it squarely. It was only when Maître Kalala spoke Monday afternoon in connection
with the DRC’s human rights claims that the letter was addressed. MaîtreKalala suggested that
rather than a request to stay in the Congo, the Secretary-General’s letter was actually the
opposite ⎯ a request to leave. Mr.President, distinguished Members of the Court, this
interpretation of the letter makes no sense ⎯ especially in light of the DRC’s own written
pleadings. At paragraph2.90 of the Reply, the DRC exposes the fallacy of this argument by
acknowledging the circumstances giving rise to the Secretary-General’s letter. The DRC’s Reply
states: “On 3May2001 [that is, the day before the Secretary-General’s letter], a Note Verbale
from the Permanent Mission of Uganda to the United Nations forwarded yet another statement by
President Museveni that Ugandan forces would shortly be withdrawn from the DRC.” (Para. 2.90.)
And what was the Secretary-Gene ral’s response? Far from greeting Uganda’s announcement with
satisfaction, as one would expect if the Lusaka Agreement called for the withdrawal of all Ugandan
troops at that time, his response was a letter to President Museveni asking Uganda to “stay fully
engaged” in the Lusaka peace process, and to withdraw Ugandan forces only in accordance with
that process, that is, according to the withdrawal schedule to be prepared by the JMC, OAU and
United Nations. In response to the Secretary-Ge neral’s letter, President Museveni rescinded his
decision to withdraw Uganda’s forces unilate rally and immediately from the Congo. The
Secretary-General manifested not the slightest objection. There is no mistaking the meaning of his
letter. - 41 -
The Lusaka Agreement is not a mere ceasefire agreement
13. On Monday, Professor Klein revised the ar gument that Professor Corten first articulated
in his opening round speech that the Lusaka Agreement was a mere ceasefire agreement that cannot
have conferred Congo’s con sent to the presence of Ugandan military forces. Whereas
ProfessorCorten argued that the whole of Lusaka was just a ceasefire agreement, ProfessorKlein
settled for half a loaf. He fell back to a new defensive position, to the effect that, well, maybe
Lusaka was more than a ceasefire agreement with respect to the internal dimension of the
Congolese conflict, but it was still just a ceasefire agreement with respect to the external dimension
of the conflict. Now, it is worth pointing out that Professor Corten’s argument, that all of Lusaka
was a mere ceasefire agreement, was presented for the first time at these oral proceedings. The
DRC never made such an argument in her written pleadings. Professor Klein’s argument, that only
half of Lusaka was a ceasefire agreement, was invented just for the second round of these
proceedings; it, too, was never advanced earlie r. One can only wonder what the DRC’s position
would be, and which of her counsel would deliver it, if these pro ceedings were extending to next
week. Fortunately, they end on Friday.
14. The fatal error in ProfessorKlein’s argument begins with his presumption, supported
nowhere in the text of the treaty, that the intern al and external dimensions of the conflict can be
severed from one another. In effect, his argumen t presumes that there are two Lusaka agreements,
one governing each aspect of the conflict. But as I discussed on 19April, the parties to the
Agreement agreed that the two conflicts were inte rrelated. Indeed, the Preamble to the Agreement
expressly recognizes this fact when it states ⎯ as projected behind me ⎯ that the parties recognize
“that the conflict has both internal and external dimensions that require intra-Congolese political
negotiations and commitment of the Parties to the implementation of this Agreement to resolve”.
15. Thus, the parties recognized that the internal and external dimensions of the conflict were
inextricably interlinked, and that the resoluti on of the external dimension, involving the DRC,
Uganda and other neighbouring States, was dependent on the prior resolution of the internal
dimension. They provided that the external dime nsion would be resolved after first resolving the
internal dimension, through the holding first of “intra-Congolese political negotiations” leading to a
“new political dispensation” in the Congo, that is, to a new national government composed of all of - 42 -
the Congolese parties to the agreement, plus the political forces vives inside the Congo. This is
reflected, among other places in the Agreement, in the implementation calendar included as
Annex“B” to the Agreement, in which the su ccessful conclusion of the intra-Congolese dialogue
and the establishment of a new political dispensation in the Congo were scheduled to occur before
the deployment of United Nations peacekeepers, the disarmament of armed groups and the orderly
withdrawal of foreign troops. This is not only what the Lusaka Agreement says ⎯ and it is what it
says ⎯ but it is also just plain common sense. As long as the DRC remained in turmoil, with civil
war raging across the country, centralized authority gone and armed bands running amok,
especially in the remote eastern border regions, there was no way the borders of neighbouring
States, including Uganda, could be secure. Thus, achieving a peaceful settlement of the internal
conflict was a sine qua non for resolving the external conflict, the explicit objective of which was
to provide secure borders for the DRC and her neighbours.
16. Contrary to Professor Klein’s second-round thesis, it is simply not possible to divorce the
internal from the external elements. And since the LusakaAgreement is now admittedly not a
mere ceasefire agreement with respect to the inte rnal dimension of the conflict, neither can it be
with respect to the external dimension, with which it is inextricably bound.
17. Now, just supposing one could disentangle the two, as ProfessorKlein would like, his
theory would still not work on any objective readi ng of the Agreement. Even with respect to the
purely external aspects of the conflict, the Ag reement provides for much more than a mere
cessation of hostilities. Indeed, among the “Principl es of the Agreement” set forth in ArticleIII,
are “the normalization of the situation along the in ternational borders of the Democratic Republic
of the Congo, including the control of the illicit traf ficking of arms and the infiltration of armed
groups” (para.17); “the need to address the s ecurity concerns of the DRC and her neighbouring
countries” (para. 21); and the need “for disarming militias and armed groups, including genocidal
forces” (para.22). These “principles” find fu ller expression as binding commitments in
Chapters 7, 8, 9 and 12 of Annex “A” to the Agreement.
18. Accordingly, there is no serious argument that the Lusaka Agreement, or any dimension
of it, is just a ceasefire agreement. As the Court itself said in its Order on Interim Measures, the - 43 -
Agreement addresses “methods for resolving the conf lict in the region agreed at a multilateral
level” (para. 42).
19. For many of these same reasons, it is untenab le to argue, as Professor Klein did, that the
“fundamental purpose” of the LusakaAgreement was to secure the withdrawal of foreign troops.
As I have stated, Article III of the Agreement sets forth the “Principles” that were agreed to. There
are 21 principles. To be sure, one of the 21 principles is the withdrawal of foreign forces. But this
is treated in the Agreement as a consequence of the achievement of an even more fundamental
objective: the resolution of the external dimension of the Congolese crisis by bringing peace and
security to the borders of the DRC, Uganda and ot her neighbouring States. It is only after border
peace and security are achieved ⎯ through a peaceful political settlement of the Congolese civil
war, and the disarmament, demobilization and removal of the armed groups using Congolese
territory to launch attacks against Uganda and other States ⎯ that the parties to the Agreement
planned for the withdrawal of foreign forces to commence. Thus, the withdrawal schedule to be
prepared by the United Nations, the OAU and the JMC was not to begin until 16 of the other
“Major Ceasefire Events”, listed in Annex“B” to the Agreement, had been completed, including
the disarmament and demobilization of the armed groups.
The Security Council resolutions invoked by the Congo support
Uganda’s reading of the Lusaka Agreement
20. The DRC has sometimes invoked one or the other of two Security Council resolutions,
which supposedly undermine Uganda’s case concerning the meaning of the LusakaAgreement.
Their most frequently cited resolution is reso lution1234 of April1999. But that resolution
provides little guidance in interpreting the LusakaAg reement, which did not exist at the time the
resolution was adopted, and was not concluded un til 10July1999, three months afterwards.
However, the resolution foreshadows the Lusak aAgreement in “condemn[ing] the continuing
activity of and support to all armed groups, including the ex-Rwa ndese Armed Forces,
Interahamwe, and all others in the [DRC]” and in “reaffirm[ing] the obligation of all States to
respect the territorial integrity, political indepe ndence and national sovereignty of the [DRC] and
all other States in the region . . .” I was reading from paragraphs 1 and 7 of resolution 1234. - 44 -
21. The other Security Council resolution cited by the DRC is resolution1304 of
16 June 2000, an excerpt of which is included in the judges’ folder submitted by the DRC. But the
DRC would do well to supply the full text of the resolution. In paragraph 4 (a) of the resolution,
the Security Council calls on Uganda and Rwanda to “withdraw all their forces from the territory of
the Democratic Republic of the Congo without further delay, in conformity with the timetable of the
[Lusaka] Ceasefire Agreement and the 8 April 2000 Kampala disengagement plan”.
22. This language, which calls for withdrawal only in conformity with the Lusaka Agreement
and Kampala disengagement plan, can be contrasted with the language of paragraph3, which
precedes paragraph4 of the resolution, and which unconditionally calls fo r Rwanda, Uganda and
all other forces to “immediately and complete ly withdraw from Kisangani”, which Uganda
promptly did. Thus, contrary to the DRC’s arguments, resolution 1304 actually recognized that the
withdrawal of Ugandan forces from the DRC as a whole ⎯ as distinguished from the city of
Kisangani ⎯ was only to be done in accordance with the multilateral agreements reached at
Lusaka and Kampala.
23. It should also be highlighted that paragraph 4 (b) of the resolution demands “that each
phase of withdrawal completed by Ugandan and Rwandan forces be reciprocated by the other
parties in conformity with the same timetable” ⎯ that is, the withdrawal completed by Ugandan
and Rwandan forces must be reciprocated by th e other parties in conformity with the same
timetable. Thus, the Security Council recognized that a fundamental tenet of Lusaka was the
reciprocal withdrawal of all forces, foreign and domestic, invited and uninvited, just as Uganda has
said. I refer the Court as well to paragraph 4 (c) of the resolution.
24. Now, before leaving resolution 1304, it is worth quoting some additional paragraphs that
the DRC left out. In the recitals of the resolution, the Security Council recalls “its strong support
for the Lusaka Ceasefire Agreement”. In paragrap h 10, the Security Council “[d]emands that all
parties cease all forms of assistance and cooperation with the armed groups referred to in Annex A,
Chapter 9.1 of the Ceasefire Agreement”; which include, of course, all seven anti-Uganda armed
bands about which the Court has now heard so much. Thus, resolution 1304, far from undermining
Uganda’s reading of the Lusaka Agreement, fully supports it. - 45 -
25. It is instructive in this regard to recall the Court’s Order on interim measures of
1July2000. Following the adoption of Security Council resolution 1304 on 16June2000, the
DRC came before this Court on interim measures, and urged the Court, based on resolution 1304,
to order Uganda immediately to withdraw all her forces from all parts of the Congo. This was the
principal measure the DRC asked the Court to adopt. It is worth recalling that in her presentation
to the Court at that time, the DRC made no mention whatsoever ⎯ uttered not a single word ⎯
about the Lusaka Agreement. Uganda, for her part, provided the Court with a detailed textual
analysis of the Agreement, much like the one I was privileged to provide on 19 April, and which I
have supplemented today. The Court, as we have said, concluded that the Lusaka Agreement was
“a binding international agreement”. It did not grant the DRC’s request; it did not order Uganda to
withdraw her forces from the Congo.
The Court’s Order on Uganda’s counter-claims
26. In his opening round speech on the issue of consent, Professor Corten cited the Court’s
November 2001 procedural ruling on Uganda’s c ounter-claims and suggested that by holding
Uganda’s third counter-claim, concerning Congo’s violations of the Lusaka Agreement,
inadmissible, the Court somehow precluded Uga nda from invoking the Lusaka Agreement as part
of its substantive defence to the DRC’s claim of aggression. But that argument cannot stand.
There is nothing in the Court’s Order that suggests that the Lusaka Agreement is irrelevant to the
DRC’s claims or Uganda’s defenc es. Rather, it holds merely that Uganda could not maintain her
counter-claim against the DRC ba sed on Congo’s violations of the Lusaka Agreement because the
particular delicts identified in that counter-claim did not arise from the same circumstances as the
DRC’s claim against Uganda. But obviously, this is not the same thing as holding that the
Agreement is irrelevant to all facets of the case, or that it cannot be invoke d by Uganda in defence
as proof of the DRC’s consent to the presence of Ugandan forces in the Congo after 10 July 1999.
The scope of Uganda’s presence remained within the parameters of Lusaka
27. The DRC also argues that Uganda mainta ined an occupation of the whole of northern
Congo because she “controlled” that area with just the few thousand men she had in the DRC.
Mr. Brownlie has already dealt with some of the legal aspects of this question, so I will address it - 46 -
only in so far as it relates to the requirements of the Lusaka Agreement. By its terms, the Lusaka
Agreement made clear that local administrative authority was vested in the Congolese rebels,
including the MLC and RCD, in the areas under their de facto control, and it legitimized the
exercise of that authority, at least until the conclusion of the intra-Congolese political dialogue.
For example, Article III, paragraph 18, provided: “In accordance with the terms of this Agreement
and upon conclusion of the Inter-Congolese political negotiations, state administration shall be
re-established throughout the national territory of the Democratic Republic of the Congo.”
28. Thus, pending the “re-establishment” of “state administration” after the intra-Congolese
dialogue, administrative authority was necessarily vested in the Congolese powers in place; that is,
in the respective regions , the MLC and RCD.
29. Similarly, paragraph 6.2 of Annex “A” provided:
“On the coming into force of this Agreement, there shall be a consultative
mechanism among the Congolese parties [that is, the DRC government, the MLC and
the RCD] which shall make it possible to ca rry out operations or actions throughout
the national territory which are of general inte rest, more particularly in the fields of
public health . . ., education . . ., migrations, movement of persons and goods.”
30. Again, this paragraph makes clear that ci vil administrative authority was vested in the
hands of the Congolese parties within their respective ar eas of control. This is also spelled out in
the Kampala Disengagement Agreement of 8 April 2000, at paragraph 4:
“The Parties [which included the MLC and the RCD Congolese rebel
organizations as well as the DRC Government] shall provide a safe and secure
environment for all persons in their respective jurisdictions [in their respective
jurisdictions], by maintaining civilian law enforcement agencies . . .”
31. Subsequently, in the Harare Disengagement Agreement of 6December2000, the same
parties identified four separate disengagement areas. Area1, the northernmost of the four, is the
only one in which Ugandan troops were located. As set forth at pages 3 and 4 of the Agreement,
area 1 was divided between “Forces of MLC and UPDF” on the one hand, and “of FAC ⎯ that is,
the Congolese army ⎯ and their allies” on the other. The Agreement did not differentiate between
MLC and UPDF as to number of troops or locati ons within area1. In fact, as I pointed out
previously, the MLC troops far outnumbered the UPDF forces, and covered the entire area;
Ugandan troops were largely confined to the eastern border region and to several strategic
locations, especially airports. The DRC appears to have accepted this on Monday. - 47 -
32. Furthermore, following the Harare Disengagement Agreement, as we have shown,
Uganda rapidly drew down her troop strength in the DRC so that by April 2001 there were no more
than 3,000 Ugandan soldiers in the Congo, with the vast majority in the eastern border region. The
DRC has not challenged these facts either.
33. Indeed, the DRC’s arguments about a Ugandan “occupation” are undermined by her own
written pleadings. For example, at paragraph 2.127 of the Reply, the DRC wrote: “In many cases,
when Ugandan troops withdrew from an occupied locality or territory, they leave it under MLC
control. This was the case, inter alia, with Buta and Gemena.” Mr.Bemba’s book, which the
DRC’s counsel identified as recommended reading fo r the Court, repeatedly emphasizes that local
administration in eastern Congo was handled by the MLC and RCD, not Uganda (Rejoinder,
Ann. 46, pp. 65, 66, 129 and 156).
34. The DRC has several times complained about the supposed hostile activities by the
UPDF after the Lusaka Agreement took effect. She has not been forthcoming about the
circumstances in which the alleged hostilities to ok place, however. In fact, the hostilities the
Congo refers to were initiated by the FAC ⎯ the Congolese army ⎯ which, in contravention of the
Lusaka and Kampala Disengagement Agreements, sought to retake ground previously won by the
MLC. The MLC responded militarily to repel the FAC forces and to hold the positions assigned to
it by these Agreements. Uganda does not deny that she provided some limited support. But, when
Mr. Bemba sought to take advantage of this situation and extend the area under his control, Uganda
restrained him as it had done on prior occasions (Rejoinder, Ann. 46, pp 31 and 81).
35. In her judges’ folder, the DRC included various maps purporting to show the presence or
military operations of Ugandan troops in the Congo. These maps were presented for the first time
at these oral proceedings. As such, Uganda unders tands that they are not evidence, but merely
graphical aids to the arguments of counsel. Even so, Uganda objects to their use in these
proceedings because the representations on these ma ps, pertaining to the presence or activities of
Ugandan forces, are not supported by the evidence in this case and they are frequently contradicted
by the evidence. The maps to which Uganda object s are the ones located at the following tabs of
the judges’ folders submitted by the DRC: 2, 3, 16, 18, 24, 25 and 26. - 48 -
36. By September 2002, when the Luanda Agreement was signed by Uganda and the DRC,
Ugandan forces in the Congo were located only at Gbadolite, Beni, Ituri Province and the western
slopes of the Ruwenzori Mountains, as set forth in that Agreement. And the LuandaAgreement
addressed all of those troops. In particular, it called for the immediate withdrawal of Ugandan
troops from Gbadolite and Beni, and the eventual withdrawal of Ugandan troops from Ituri, after
the Ituri Pacification Commission forged an agreem ent to halt the inter-ethnic violence that was
occurring there. Uganda fully complied with the terms of the Luanda Agreement, promptly pulling
her forces out of Gbadolite and Beni and, in tim ely fashion, withdrawing all her remaining troops
from Congo by 2 June 2003. The DRC has not contested these facts.
37. Mr.President, distinguished Members of the Court, the facts show that from
10 July 1999 through 2 June 2003, Uganda’s military forces were present in the Congo with the
consent of the DRC Government, as initially give n in the Lusaka Agreement, and as extended and
reconfirmed in the Kampala and Harare Disengagement Agreements and ultimately, the Luanda
Agreement of September2002. Uganda will respond in writing to the question put by
Judge Elaraby, concerning the extensions the parties made to the timetable included in Annex “B”
of the Lusaka Agreement, as well as to the questions put by JudgeVereshchetin and
Judge Kooijmans.
The DRC’s consent in August and September 1998
38. There remains one more topic to cover on th e subject of consent, and that is the consent
that covered Uganda’s forces in the DRC during August and the early part of September1998. I
set forth Uganda’s position on 19April, and need not do so again. However, several of
ProfessorKlein’s statements on Monday demand a rebuttal. Before doing so, however, let me
confirm what is a significant point of agreement be tween the Parties, as stated by Professor Klein:
Ugandan troops were present on Congolese territory until August1998 with the consent of the
DRC Government.
39. What Congo persists in denying is that her consent prior to August 1998 was formalized
in any fashion. According to what we have h eard from the DRC’s counsel at these oral hearings,
the DRC’s consent prior to that time was purel y informal. We have also heard that the - 49 -
27 April 1998 written Protocol between the two coun tries was not a manifestation of consent to the
presence of Ugandan troops in the Congo because, they say, it said nothing explicit about Ugandan
troops operating within the DRC. At first blus h, the formal/informal distinction may seem unduly
formalistic. Nonetheless, it is important because if the DRC’s consent was formalized pursuant to
an instrument duly signed by her agents, her consen t could only be revoked formally. To this day,
the DRC has never contended that her consent was fo rmally revoked because, in fact, it never was.
The DRC’s entire line of argumentation on this point is built around an awkward effort to strip this
critical fact of its necessary legal consequence.
40. The DRC’s advocates, including Professors Salmon, Corten and Klein have each in their
separate ways dismissed the April1998 Protocol as i rrelevant to the issue of consent. That they
have given the Protocol so much attention, and by so many counsel, is testimony to its importance.
To be sure, the language of the Protocol is dipl omatic. But the circumst ances in which it was
executed, which the DRC avoids mentioning, give obvi ous meaning to its bare words. First, there
is the admitted conduct of the DRC. Uganda has stated ⎯ and the DRC has never denied ⎯ that
prior to the Protocol, two Ugandan battalions were stationed in the eastern border regions of the
DRC. Uganda has also stated ⎯ and the DRC has never denied ⎯ that after the Protocol was
signed, a third Ugandan battalion was soon deployed to eastern Congo. This by itself is enough to
demonstrate the meaning of the Protocol. There is also the factual context on the ground. There
were no rebel groups based in Uganda, and it was never the intention of the Parties ⎯ and the DRC
has never said otherwise ⎯ to have Congolese troops carry out military or other activities on the
Ugandan side of the border. Thus, the only meaning the April 1998 Protocol could have possibly
had was to authorize Ugandan troops to operate against rebel groups on Congolese territory.
41. In addition, the Court has before it the testimony before the Porter Commission of a
senior Ugandan official, Mr.RalphOchan, then Permanent Secretary in Uganda’s Ministry of
Foreign Affairs, describing the circumstances givi ng rise to, and the purpose of, the Protocol of
27April1998 (Rejoinder, Ann.64). At leas t three times now, advocates for the DRC have
denigrated Mr. Ochan as a mere “functionary” and labelled his testimony confused. According to
them, Mr.Ochan’s testimony is unreliable because he allegedly stated that it was the June1998
attack on Kichwamba Technical School th at motivated the April1998 Protocol ⎯ an obvious - 50 -
impossibility. My learned opponents’ determin ation to discredit Mr.Ochan and his Porter
Commission testimony is obviously born of their self-consciousness about the DRC’s vulnerability
concerning the meaning of the Protocol. I submit that any fair reading of Mr.Ochan’s testimony
shows that he is guilty of no confusion whatsoever. Testifying retrospectively in 2001 about events
that occurred in 1998, he merely used the Kichwa mba attack as a very well-known example of the
kind of problem the Protocol was meant to deal with. In other words, as Mr.Ochan plainly
testified, the Protocol was designed to help prevent terrorist attacks against Uganda by permitting
the deployment of Ugandan troops in Congolese territory. As such, the Protocol represents a
formal manifestation of consent that required a formal withdrawal ⎯ a formal withdrawal which
never came.
42. Now, Uganda’s position is not so bli ndly formalistic that she would contend that,
because the Congo’s consent was never formally w ithdrawn, it extends to this day. Obviously,
there came a point when the DRC’s original consent to the presence of Ugandan units in the eastern
border region, as manifested formally by the Apr il1998 Protocol, no longer applied, and that is
when Uganda decided on 11September1998 to extend her troops beyond the immediate border
area for the first time. But until that time, and fo r reasons I stated more fully last week and with
which I won’t burden the Court by repeating here , the status of Uganda’s troops in the border
region was unchanged (CR2005/8, pp.17-18, paras. 4-5). The consent formally given had not
been formally revoked.
Conclusion
43. Mr.President, distinguished Members of the Court, I have come to the end of my
presentation. Since this is the last time I will address the Court in these oral proceedings, I want to
thank you, Mr. President, and the entire Court, for granting me the distinct honour and privilege of
appearing before you, and for all the kind and cour teous attention you, the Court, the Registry and
the outstanding translators have bestowed on me throughout these proceedings. Thank you all and
good day. - 51 -
The PRESIDENT: Thank you, Mr. Reichler.
This brings to a conclusion this morning’s h earings. The hearings will be continued this
afternoon at 3 o’clock. The sitting is adjourned.
The Court rose at 12.45 p.m.
___________
Public sitting held on Wednesday 27 April 2005, at 10 a.m., at the Peace Palace, President Shi presiding