CR 2005/8
Cour internationale International Court
de Justice of Justice
LAAYE THAEGUE
ANNÉE 2005
Audience publique
tenue le mardi 19 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 Tuesday 19 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 open. I now give the floor to
Professor Brownlie.
Mr. BROWNLIE: Thank you, Mr. President. Mr. President, distinguished Members of the
Court.
CONSENT GIVEN BY CONGO BETWEEN M AY 1997 AND AUGUST 1998
1. My task today is to present the first part of the argument based upon the consent that the
Congo gave to Uganda to place and maintain her armed forces in Congolese territory in the period
between May 1997 and June 2003.
2. There are two separate, distinct and ipendently sufficient legal bases for Uganda to
have deployed and maintained her military for ces in the Congo during this six-year period. The
first of these is Uganda’s necessity to act in sel f-defence. The second is the express consent that
the Government of the Congo gave to Uganda to place her forces in the Congo.
3. It is Uganda’s position that each of these legal bases for her actions, self-defence and
consent, is alone sufficient to sanction the depl oyment of Ugandan military forces in the Congo.
They are separate and independent legal grounds for justifying Uganda’s actions, and for rejecting
the Congo’s claims that Uganda is guilty of armed aggression against her.
4. My presentation will be devoted to the con sent given to Uganda by the Congo during the
period from May1997 to August1998 . My learned friend, Mr.Paul Reichler, will discuss the
consent that the Congo gave to Uganda, to ma intain her armed forces in the Congo, in the
subsequent period and, in particular, in te Lusaka Agreement of 1999, and in additional
agreements implementing the terms of the Lusaka Agreement. Mr.Reichler will also discuss the
renewal and extension of the Congo ’s consent in the bilateral agre ement executed at Luanda in
September 2002, together with the extensions of the Luanda Agreement until the final withdrawal
of Ugandan forces from the Congo in June 2003.
5. By way of an introduction and in response to the discussion of consent in the Congo’s
Reply (pp. 402-404), Uganda accepts the application of the definition of consent in the Articles on
State Responsibility adopted by the International Law Commission in 2001. - 9 -
6. Accordingly I refer to Article20 of the Articles, entitled “Consent” and which provides:
“Valid consent by a State to the commission of a given act by another State precludes the
wrongfulness of that act in relation to the former St ate to the extent that th e act remains within the
limits of that consent.”
7. Paragraph 1 of the Commentary of the Commission reads as follows:
“Article20 reflects the basic international law principle of consent in the
particular context of Part I. In accordance w ith this principle, consent by a State to a
particular conduct by another State precludes the wrongfulness of that act in relation
to the consenting State, provided the consent is valid and to the extent that the conduct
remains within the limits of the consent given.”
8. Mr. President, neither the text of the Article nor the Commentary indicate the necessity for
any formality in the giving of consent. No requirement of form is indicated in the pertinent entry in
the Dictionnaire de droit international public, edited by Jean Salmon, published in 2001. I refer to
the issue of form because the Congo’s Reply insists that some kind of instrument is called for
(Reply, para.3.204). But the le gal literature does not refer to a requirement of form, such as a
written instrument. One can refer to Oppenheim’s International Law , edited by
Sir Robert Jennings and Sir Arthur Watts (Vol. I, 9thed., 1992, p.511); or Daillier and Pellet,
Droit international public (6thed., p.757); and lastly, EduardoJiménez de Aréchaga, in
Sorensen’s Manual of Public International Law (1968, p. 541).
9. The real point is that consent was in fact given by the Government of the Congo on a
number of occasions. In a series of passages, the existence of such consent is expressly admitted
by the Congo in the written pleadings. Thus, in th e Memorial, at paragraph 5.23, the Congo states
that “[p]rior to 28July1998, Uganda troops were present on the territory of the Democratic
Republic of the Congo with the consent of the country’s lawful Government”. Essentially the same
admission is made in several other passages in the Memorial, which we referred to in the transcript
(paras. 5.37, 5.40, 5.43 and 5.44).
10. Uganda does not accept that this con sent was withdrawn on 28July1998, and the
governing principle is that the Congo clearly rec ognizes that at some stage Uganda forces were
present on the territory of the Democratic Republic of the Congo “with the consent of the country’s
lawful Government”. - 10 -
11. It is odd, to say the least, that the Congo is unwilling to reveal when, in her view, such
consent was given. In the Reply, the Congo stro ngly denies that any invitation was given (Reply,
para. 3.196). If there were no invitations, then there must have been some form of mutual consent.
12. The first Congolese invitation was in May 1997, and the background was as follows. It
was in the same month that President Laurent Kabila assumed power in Kinshasa, after leading the
rebellion that removed the Government of fo rmer PresidentMobutu Ssese Seko. The new
Congolese Government was incapable of projecting its authority all the way across the country to
the eastern provinces, along the border with Ugan da, where local administrative authority and
security forces had been debilitated during the rebe llion against President Mobutu. This gave free
rein to the seven anti-Uganda insurgent groups that had been regularly attacking Uganda from
eastern Congo since at least 1994, and with increasing force and brutali
ty since 1996. Uganda
hoped President Kabila would be more sympathetic to her security concerns than President Mobutu
and, indeed, he was, at least initially. Unable to control the situation in eastern Congo himself,
PresidentKabila invited Uganda to send her own troops into the region, to protect her borders
against further attacks by the Congo-based armed groups. In response to PresidentKabila’s
invitation, Uganda sent a small contingent of troops into eastern Congo in May 1997.
13. This did not prove sufficient, however, to put an end to the armed attacks on Uganda, and
they continued. High-level bilateral meetings to discuss the security situation were held frequently.
In December1997, PresidentKabila invited Uga nda to augment her military presence in eastern
Congo and, in response, Uganda sent two battalions , approximately 1,200 troops, into the region.
By this time, the Congo was able to send some of her own armed forces to eastern Congo, where
they conducted joint operations with the Ugandan forces in the region against the armed groups. In
her Reply, the Congo admits that “various military operations were then carried out by Uganda
with the permission of the local authorities” as well as “joint operations of the armed forces of the
two States inside the border region” (paras. 3.37 and 3.38). There was never any question but that
PresidentLaurent Kabila’s invitations, and Uganda’s despatch of troops to eastern Congo, were
necessitated by the armed attacks against Uganda by insurgent forces opera ting from bases in the
Congo. - 11 -
14. Mr.President, what was involved in this period was an ongoing pattern of close
co-operation between officials both at the officer level and at other levels. The Congo’s Reply
gives a part of the picture. The relevant passag es relate to events in 1997 and early 1998 and are
very relevant. In the words of the Reply:
“3.34. With limited resources, the new Congolese authorities had to cope with
all these serious security problems. In the view of most observers, they were
successful in solving the problem in certa in areas, such as Kinshasa or Equateur
Province. On the other hand, it was extremely difficult to root out a crisis as deeply
entrenched as that of Kivu in just a few months. That did not prevent the government
from taking any measures that could reasona bly be contemplated, in particular an
appeal for increased co-operation with neighbouring States in order to combat
insecurity in all regions of the country as effectively as possible.”
15. The text of the Reply continues:
“3.35. This was the context underlying the policy of the Congolese authorities
in Northern Kivu aimed at stamping out th e irregular movements operating against
both Uganda and the Congo, which, as we ha ve seen, consisted in part of ex-FAZ
soldiers.”
16. Even more significant are the following paragraphs of the Congolese Reply:
“3.37. Secondly, no one can dispute the fact that throughout this period the
Congolese authorities had sought to foster effective military co-operation with
Kampala. As stated in an International Crisis Group report previously cited.
‘Although the Congolese Government troops are normally the only
official troops supposed to be operating in North Kivu, they are unable to
properly police the hinterland and ar eas bordering Rwanda and Uganda.
As a result, the DRC has permitted Ugandan military forces to carry out
operations and in some cases to conduct joint patrol activities.’”
And the Congolese Reply continues:
“Thus joint operations in the bor der region by the armed forces of
the two States had been contemplated from September1997 onwards. A
Ugandan military official present in the region thus stated: ‘If Congo
does not have the military capacity at present because of its own
problems, we will ask for joint operatio ns so that we can seal the border
and deal with this problem finally.’ ADF officials duly spoke out against
this increased co-operation threatening it. On 20November1997 the
daily New Vision reported that ‘Ugandan and DRC authorities were
co-operating in the fight against rebels of the Allied Democratic Front,
based in the Ruwenzori mountains straddling the two countries’. The
governor of North Kivu warned the rebels of a ‘military “clean-up”
operation planned for the Ruwenzori area’.
3.38. Subsequently various Ugandan military actions were
conducted in Congolese territory with the agreement of the local
authorities.” - 12 -
And an example is given: “On 19 December 1997 it was reported that Ugandan troops had entered
Congolese territory in order to destroy ADF bases ‘by a joint attack by Ugandan Army and DRC
forces in the Kamango hills’.” And two other such actions are listed in the Reply.
17. These passages from the Congo’s Reply are of obvious importance.
18. In the first place the material shows the ar tificial nature of the attempts by the Congo,
elsewhere in the Reply, to deny the existence of consent. During much of 1997 and early 1998
there was practical co-operation between the tw o Governments. The passages from the Reply
quoted above refer to the “joint operations of the armed forces of the two States”, and to “joint
attacks”. On 8 February 1998 there was signed a training agreement between the two Governments
for the training in public order for the police of the Congo (Counter-Memorial of Uganda,
Ann.16). Moreover, from July1997 Ugandan poli ce officers were present in Kinshasa in the
context of co-operation in matters of public order.
19. The evidence of the close co-operation be tween the two States in the context of public
order is palpable. The armed forces were conducting joint operations against anti-Uganda rebels.
20. And against this background it is clear that the basis of the consent given by the Congo to
the presence of Ugandan armed forces on the te rritory of the Congo was an implied consent
resulting from the conduct of the Parties. And it is astonishing that in another chapter of the Reply
the Congo should insist that there was no evidence of an invitation.
21. In fact, the position of the Reply on these matters confirms and supplements the account
given in Uganda’s Counter-Memorial, paragraph 31 (pp. 22-33). There it is stated that, in response
to insurgent attacks, President Laurent Kabila invited Uganda to deploy troops in eastern Congo in
May1997, and again in December1997. The sm all force sent in May was supplemented by the
UPDF battalions ⎯ 1,200 men approximately ⎯ in December. A third battalion was deployed to
eastern Congo in April 1998, again in response to the invitation of President Kabila.
22. Mr. President, against this background it was natural that the two States should conclude
an agreement on 27April1998 on Security along the Common Border (judges’ folder, tab11;
Counter-Memorial of Uganda, Ann.19). Th is Protocol was signed by the Honourable
TomButime, Minister of Internal Affairs of Uganda, and His Excellency GaëtanKakudji, State
Minister in charge of the Interior, for the Congo. The key part of the text is as follows: - 13 -
“The two delegations pursued their discussions on the preoccupying security
situation that prevails along the common border.
⎯ In order to put an end to the existence of the rebel groups operating on either side
of the common border, namely in the Ruwenzori,
⎯ Whereas the two delegations would like to see their people live in peace in
accordance with the will expressed by the two Heads of State to guarantee and
strengthen peace, security and stability in the Great Lakes Region; which are
important factors for the social and economic development;
⎯ Given that an in-depth analysis of th e military, security and immigration aspects
has been done.
The following two parties agreed as follows:
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The two parties recognised the existe nce of enemy groups which operate on
either side of the common border. Conseque ntly, the two armies agreed to co-operate
in order to insure security and peace along the common border.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The two security services concurred on the strengthening of their co-operation.”
That is the text of the Protocol.
23. Pursuant to the Protocol, Uganda sent a third battalion into eastern Congo, which brought
her troop level up to approximately 2,000, and she continued military operations against the armed
groups in the region both unilaterally and jointl y with Congolese Government forces. Like the
earlier invitations from the Congo to Uganda, the Protocol sought to eliminate the threat to security
along the Congo-Uganda border by providing for th e deployment of Ugandan troops to eastern
Congo. It was another explicit recognition by both Parties that deployment of Ugandan forces
inside the Congo was a necessary and appropriate exercise of Uganda’s sel f-defence in response to
the security threat posed by the rebel groups based on the Congolese side of the border.
24. The language of the Protocol, especially the reference to “rebel groups operating on
either side of the common border”, calls for careful appreciation, and in fact there were no rebel
groups operating on the Ugandan side of the border, nor did the parties have the remotest intention
to place Congolese armed forces on the Ugandan side of the border. In any event, the actions of
the parties subsequent to the Protocol resolve any doubt over what they intended. A third battalion
of Ugandan troops was sent into the Congo without objection. Combat operations against the
anti-Uganda rebels continued, sometimes in collaboration with Congo Government forces. - 14 -
25. I shall now move to a new subject, that is, the contention of the Congo that the consent
given to the presence of Ugandan forces in the Congo was withdrawn on 28July1998. I refer to
the Memorial (paras. 2.20-2.15) and the Reply (para. 3.207).
26. The Congo has given no convincing evidence of the withdrawal of the consent to the
presence of Ugandan armed forces. Two documen ts are referred to. The first is a press
communiqué published on 28 July 1998, which reads as follows:
“The Supreme Commander of the Congolese National Armed Forces, the Head
of State of the Republic of the Congo and the Minister of National Defence, advises
the Congolese people that he has just terminated, with effect from this Monday
27 July 1998, the Rwandan military presence which has assisted us during the period
of the country’s liberation. Through these military forces, he would like to thank all
of the Rwandan people for the solidarity they have demonstrated to date. He would
also like to congratulate the democratic Congolese people on their generosity of spirit
for having tolerated, provided shelter for and trained these friendly forces during their
stay in our country. This marks the end of the presence of all foreign military forces
in the Congo.” [Translation by the Registry] (Memorial, para. 2.11; Eng. trans.)
27. The relevance of this document is obvious and it is aimed expressly at the “Rwandan
military presence”. The absence of reference to Ugandan forces is deliberate, and this is confirmed
by the statement by the Congolese Minister of Justice on 30 July 1998. The Minister is reported as
follows (Memorial, para. 2.13):
“On 30 Jul1998 the Minister of Justice spoke of a ‘campaign of
disinformation since the departure of foreign military co-operation’, while
emphasizing that ‘Banyamulenge Congolese, Burundians and other foreigners [were]
free to go about their daily business and that respect for their rights [would] be fully
guaranteed’.” [Translation by the Registry.]
28. In addition the text of the Congo’s Reply reports the official announcement on
27 July 1998 in the following terms:
“During his official visit to Cuba from 24 to 25July1998, President Kabila
learnt that a coup d’état was being organised against his government and was
scheduled to take place in the next few da ys. As soon as he returned from Cuba, he
officially announced, on 27July 1998, the end of military co-operation with Rwanda
and asked the Rwandese soldiers to go back to their country. He also announced that
that marked the end of the presence of foreign troops in Congo.” (Reply, p.116,
para. 2.27.)
29. It is striking to see that in all these st atements and reports there is no reference to
Ugandan forces. The only reasonable inference to be drawn is that Ugandan forces were not
included in these dispositions. - 15 -
30. In his presentation on Wednesday last week my distinguished opponent,
ProfessorCorten, did not produce any substantial new information on this subject (CR 2005/4,
paras. 1-23). However, he made two points which demand a response. In the first place he asserts
that the Congolese Government only tolerated the presence of Uganda troops on Congolese
territory, but, in the light of the Protocol of 27April1998, this assessment lacks credibility.
Secondly, ProfessorCorten argues that, even if the Congolese consent was not formally
withdrawn, there was an informal withdrawal (CR 2005/4, para. 19). Now, as a matter of law, a
withdrawal of consent may be informal or tacit. And prior to the Protocol of April1998 the
consent to the presence of Uganda had been tacit as I have demonstrated. But, Mr. President, the
difficulty Professor Corten faces is that the Govern ment of the DRC did make a formal declaration
on 27 July 1998 and there was no reference to Uganda.
31. In conclusion, it will be helpful if I describe the status quo at the end of July 1998.
First, on the basis of the programme of co-opera tion with the Congo and with the consent of
the Government, Uganda had approximately 2,00 0 troops in eastern Congo. As the Congo’s
Memorial accepts: “Prior to 28July1998 Uganda n troops were present on the territory of the
Democratic Republic of the Congo with the consent of the country’s lawful Government.”
(Para. 5.23.)
Second, there was no withdrawal of this consent on the part of the Congo.
Third, in the period betweenJuneandAugust 1998 there was a re surgence of attacks
directed against Uganda by the armed groups based in eastern Congo.
32. At this juncture, Mr.President, I would thank the Court for their courtesy and kindness
and I would ask you to give the floor to my coll eague, Mr.Paul Reichler, who will deal with the
period from August 1998 until June 2003. Thank you.
The PRESIDENT: Thank you, Professor Brownlie. I now give the floor to
Mr. Paul Reichler. - 16 -
RMEr. HLER:
C ONSENT GIVEN BY THE C ONGO BETWEEN JULY 1999 AND JUNE 2003
Introduction
1. Mr. President and Members of the Court, I have the privilege of continuing the discussion
commenced by my distinguished colleague, Ia n Brownlie, regarding the consent that the
Democratic Republic of the Congo gave to Ugan da to place and maintain her armed forces in
Congolese territory. Mr. rownlie described for the Court the consent given by
PresidentLaurentKabila of the DRC in May 1997, which was renewed in December1997 and
again in April 1998 for the stationing of Ugandan military forces in eastern Congo, for the purpose
of arresting the cross-border attacks by a-Uganda armed bands operating from bases on the
Congolese side of the border. As Mr.Brownlie demonstrated, this consent covered the period
between May 1997 and August 1998, and this is admitted by the DRC in the written pleadings.
2. It shall be my role to pick up the story where Mr.Brownlie left off, at the beginning of
August 1998, and to carry it through to June 2003, when the last Ugandan troops in the DRC were
fully and finally withdrawn. There have been no Ugandan troops in the Congo since 2 June 2003.
3. In addressing the subject of consent, I shall divide my presentation into four parts,
corresponding to four distinct time periods. In the first part of my presentation, I shall address the
status of Uganda’s military forces stationed in eastern Congo between the beginning of
August 1998 and the middle of September of that year, when Uganda substantially augmented her
forces in the Congo to subdue the armed bands of anti-Uganda rebels who were escalating their
cross-border raids into Uganda, and to expel hostile Sudanese aChadian forces from the DRC.
The second part of my presentation will cover the period from the middle of September 1998, when
additional Ugandan forces were introduced into the Congo, until July1999, when Uganda’s
military objectives in the Congo had been achieved and her troops were ordered to stop advancing,
and to refrain from initiating further combat. The third period I shall cover commences in
July1999, with the signing ofthe Lusaka Agreement, pursuant to which Ugandan forces in the
Congo were expressly authorized to remain in place until the anti-Uganda armed groups ⎯ seven - 17 -
of them, all identified by name in the Agreement ⎯ were disarmed, demobilized, resettled and
reintegrated, such that they neither would, nor could, continue to conduct armed attacks against
Uganda. The fourth and final period covered by my presentation commences in September 2002,
when Uganda and the DRC signed a bilateral peace agreement at Luanda, Angola, which renewed
the DRC’s consent to the presence of Ugandan forces in Congolese territory, and provided an
agreed timetable for their eventual withdrawal, a timetable that was later extended but in the end
was fully complied with by Uganda, such that the last Ugandan troops were withdrawn from the
Congo on 2 June 2003.
I. The status of Uganda’s forces in the Congo during August and September 1998
4. I shall now discuss the status of Uganda’s military forces in the Congo during the first of
the four relevant time periods, from the beginning of August1998 to the middle of September of
that year. The Court has heard from Mr.Brownlie how the DRC has been unable to furnish any
evidence that she withdrew her consent to the presence of the Ugandan forces stationed in eastern
Congo as of the end of July 1998. The Presidential Decree issued by President Laurent Kabila on
27 July of that year expressly called upon Rwandan troops ⎯ and only Rwandan troops ⎯ to leave
the DRC. Neither that Decree, nor any other, mentioned Ugandan forces. Nor was there any such
decree in August1998, or September, or any time th ereafter. In fact, no formal or even informal
communication was ever made from the DRC to Uganda withdrawing the express consent that had
been given continuously since May1997, or abrogating the written Protocol of April1998, in
which the DRC agreed to the stationing of Ugandan troops in Congolese territory to combat the
anti-Uganda groups based in the border areas.
5. The absence of any written or even oral communication from the DRC to Uganda as to the
withdrawal of consent is an established fact, and a significant one. There were diplomatic relations
between the DRC and Uganda during this period. The Congolese Embassy in Kampala remained
open and continued to function. It would not have been difficult for the DRC to communicate
officially about a withdrawal of consent if the Congolese authorities had chosen to do so. Speaking
last Wednesday morning about this topic, Professor Corten admitted, on behalf of the DRC that, if
all there had been was the Decree of 27 July 1998, then there would have been some “doubt” about - 18 -
the DRC’s position on the status of Ugandan forces (CR 2005/4, para. 17). In fact, that is all there
was. To be sure, the DRC’s written pleadings cite various journalistic sources for statements from
some Congolese officials during the month of August accusing both Rwanda and Uganda generally
of aggression. And the DRC’s Ambassador to the United Nations made similar accusations of a
general nature. However, in these circumstances, the absence of a direct or indirect, formal or
informal, written or oral communication from the DRC to Uganda withdrawing consent is most
significant. The consent that was given continuously since May 1997 had not been revoked. At a
very minimum, their status was the subject of some “doubt”, to use Professor Corten’s word.
Uganda was entitled to a more definitive expression of the DRC’s position on this matter, before
she came under any obligation to change the status quo.
II. The status of Uganda’s forces in the Congo between September 1998 and June 1999
6. This brings me to the second time period I shall discuss in this presentation, which lasted
from the middle of September1998 until July1999, a period of ten months. As my colleagues
have previously explained to the Court, on 11September1998 the Uganda High Command made
the decision to introduce more Ugandan troops into the DRC in response to what Uganda perceived
as a grave and imminent threat to her security, and with the objective of subduing the anti-Uganda
groups on the Congolese side of the border and e xpelling Sudanese and Chadian forces from the
Congo. Uganda does not contend that these new Ugandan forces were introduced into the Congo
with the consent of the DRC Government. As I shall explain, the DRC later consented to the
presence of these new troops in Congolese territory , as part of the Lusaka Agreement signed on
10 July 1999. But no such consent for the introduction of new troops existed as of September 1998
or thereafter, until the Lusaka Agreement came into force. Uganda’s position, as set forth very
clearly by Mr. Brownlie yesterday, is that be tween September 1998 and July 1999 her deployment
of military forces to the Congo was a lawful exercise of her inherent right to self-defence under the
United Nations Charter and customary international law.
III. The consent given by the DRC in the Lusaka Agreement of July 1999
7. I shall now turn to the third part of my presentation on the subject of consent, and discuss
the Lusaka Agreement of July 1999. I introduced the subject of the Lusaka Agreement last Friday, - 19 -
during my general overview of the evidence relating to Uganda’s claim of self-defence. Today, I
hope the Court will find it useful for me to review the Agreement in greater depth, especially in the
context of Uganda’s claim, that after 10 July 1999, Uganda’s military forces in the DRC were there
by virtue of the consent given by the DRC Govern ment in the Agreement itself. In its Order on
interim measures, the Court characterized the Lusaka Agreement as an “international agreement
binding on the Parties”, and so it was ( Provisional Measures, Order of 1 July 2000, I.C.J. Reports
2000, p. 127, para. 37).
8. As regards the issue of consent, the Lu saka Agreement expressly authorized Uganda, and
all other neighbouring States with armed forces then in the DRC, to maintain their troops in the
Congo until such time as the armed groups that po sed security threats to these States, including the
seven anti-Uganda groups listed by Mr. Brownlie , were disarmed, demobilized and removed from
the Congo. In so doing, the Agreement not only constituted a manifestation of consent, from the
DRC and the other parties, for Uganda to maintain her troops in the Congo, but it also provided an
express recognition that the presence of those troops was justified, as a necessary means to
safeguard Uganda’s security, for as long as the anti-Uganda groups remained armed, mobilized and
active in the DRC. The Lusaka Agreement is located at tab 5 of the judges’ folder.
9. The Lusaka Agreement is central to the issu es in this case, and it bears close inspection.
In the words of the Secretary-General of the United Nations, in 2000: “it cannot be too often
repeated that the Lusak a Ceasefire Agreement remains the b est hope for the resolution of the
conflict in the Democratic Republic of Congo and, for the time being, the only prospect of
achieving it” (Counter-Memorial, Ann. 56, para. 86).
10. The Security Council issued at least eight separate resolutions expressing its full support
for the Lusaka Agreement and calling upon all th e parties to comply with its terms. These
resolutions are listed at paragraph77 of the Counter-Memorial, and included as Annexes thereto
(resolutions 1265, 1273, 1279, 1291, 1296, 1304, 1323, & 1332 (Counter-Memorial, Anns. 49, 50,
52, 58, 61, 70, 77 and 81, respectively)). Typical of these is resolution 1291 of 24 February 2000,
in which the Security Council expressed its “strong support for the Lusaka Ceasefire Agreement
(S/1999/815), which represents the most viable basi s for the peaceful resolutio n of the conflict in
the Democratic Republic of the Congo . . .” (Counter-Memorial, Ann. 58). - 20 -
11. The Lusaka Agreement was concluded in July1999 by the Heads of State of six
States ⎯ the DRC, Uganda, Rwanda, Zimbabwe, Angola and Namibia ⎯ and by the leaders of the
three Congolese rebel organizations that rose up agai nst PresidentKabila’s Government one year
earlier, in August1998. Its title notwithstanding, the Agreement is much more than a simple
ceasefire agreement among the contending forces. It is a comprehensive system of public order
that established a detailed framework for achieving a peaceful resolution of what the parties
expressly labelled as the two interrelated armed conflicts in the DRC: the internal conflict between
the Government of the DRC and the three Congolese rebel organizations; and the external conflict
involving the DRC and her neighbouring States, including Uganda (see Lusaka Agreement, p. 3).
The modalities for resolving the internal conflict
12. As I mentioned last Friday, the parties agreed on separate, but not unrelated, modalities
for resolving each of the two conflicts. The agreed modalities for resolvin g the internal conflict
between the Government of the DRC and the Congol ese rebels were set forth at paragraphs 19 and
20 of the Agreement, and in AnnexA, Chapter5. They are worthy of close consideration.
Paragraph 19, for example, provided:
“On the coming into force of the Agreement, the Government of the DRC, the
armed opposition, namely the RCD and the MLC as well as the unarmed opposition
shall enter into an open national dialogue. These inter-Congolese political
negotiations involving les forces vives shall lead to a new political dispensation and
national reconciliation in the DRC. The inter-Congolese political negotiations shall be
under the aegis of a neutral facilitator to be agreed upon by the Congolese parties. All
the Parties commit themselves to supporting th is dialogue and shall ensure that the
inter-Congolese political negotiations are conducted in accordance with the provisions
of Chapter 5 of Annex ‘A’.” (Lusaka Agreement, p. 7.)
13. Chapter 5 of Annex A was entitled “Nati onal Dialogue and Reconciliation.” It provided
in paragraph5.2(ii) that: “all the participants in the inter-Congolese political negotiations shall
enjoy equal status”. This put the three Congolese re bel organizations in an “equal status” with the
DRC government in the inter-Congolese political negotiations. In paragraph5.5 of AnnexA, the
objectives of the inter-Congolese political negotiations were set forth. According to paragraph 5.5,
“the Congolese Parties shall agree:
(i)the timetable and the rules of procedure of the inter-Congolese political
negotiations; - 21 -
(ii)the formation of a new Congolese National army whose soldiers shall
originate from the Congolese Armed For ces, the armed forces of the RCD
and the armed forces of the MLC;
(iii) the new political dispensation in the DRC, in particular the institutions to be
established for good governance purpose in the DRC;
(iv) the process of free, democratic and transparent elections in the DRC;
(v) the draft of the Constitution which shall govern the DRC after the holding of
the elections.”
14. Let us pause here for a moment. The modalities that the parties agreed upon to resolve
the internal aspects of the Congolese conflict, wh ich I have just read, by themselves thoroughly
refute the claim, advanced by the DRC’s counsel last week, that the Lusaka Agreement was a mere
ceasefire agreement, which, in the words of Professo r Corten, “is simply a truce . . .” which is “by
definition provisional” (CR 2005/4, para. 30). Bu t the Lusaka Agreement was not a mere “truce”.
It was a complex and comprehensive peace settlem ent purporting to settle all major problems of
substance. In terms of the modalities for settling the internal conflict among the Congolese parties,
the obligations set forth in paragraphs 19 and 20, and in Annex 5, call for nothing less than creation
of new government institutions, election of a ne w national government, a new Constitution, and a
new national army: in other words, a comprehensive peace settlement.
The modalities for resolving the external conflict
15. The complex and comprehensive nature of the peace settlement achieved in the Lusaka
Agreement is also reflected in the agreed moda lities for resolving the external dimension of the
Congolese conflict, between the DRC and neighbouring States, including Uganda. In fixing these
modalities, the parties expressly recognized that the root cause of the external conflict was the use
of Congolese territory by armed bands seeking to destabilize or overthrow neighbouring
governments (Preamble, and paras. 21 and 22). To resolve the conflict, they agreed on a series of
specific measures to prohibit the aiding or abetting of these armed groups, to prevent them from
continuing to operate from Congolese territory, and to eliminate them altogether by disarmament,
demobilization and resettlement. They agreed, as set forth in the Preamble, at page1, “to put an
immediate halt to any assistance, collaboration or giving of sanctuary to negative forces bent on
destabilizing neighbouring countries . . .”. - 22 -
16. More specifically, each of the parties agreed, in Chapter 12 of Annex A:
“(a) not to arm, train, harbour on its territory, or render any form of support to
subversive elements or armed oppos ition movements for the purpose of
destabilizing the others;
(b) to report all strange or hostile movements detected by either country along the
common borders;
(c) to identify and evaluate border problems and co-operate in defining methods to
peacefully resolve them;
(d) to address the problem of armed groups in the Democratic Republic of Congo in
accordance with the terms of the Agreement.”
17. The parties further agreed, in paragraph 22 of the Agreement itself:
“There shall be a mechanism for disar ming militias and armed groups... In
this context, all parties commit themselves to the process of locating, identifying,
disarming and assembling all members of armed groups in the DRC.”
18. To this end, the parties created a Joint Military Commission, composed of senior military
officers representing each of the parties, and charged it with the responsibility for establishing the
specific mechanisms for disarming the particular armed groups identified in the Agreement as
threats to the security of States bordering the D RC. As set forth in Chapter 9 of Annex A,
paragraph 9.1:
“The JMC [that is, the Joint Military Commission] with the assistance of the
UN/OAU shall work out mechanisms for the tracking, disarming, cantoning and
documenting of all armed groups in the DRC, including ex-FAR, ADF, LRA,
UNRF II, Interahamwe, FUNA, FDD, WNBF, UNITA . . .”
19. Of the nine groups identified in the para graph I just read, seven are the groups listed
yesterday by Mr.Brownlie, in his speech on sel f-defence, as having used Congolese territory to
mount cross-border attacks against Uganda: ADF, LRA, UNRFII, FUNA, WNBF, ex-FAR and
Interahamwe. The Agreement’s emphasis on the pr esence of these armed groups as the cause of
the external conflict in the Congo, and its prescrip tion for their disarmament and removal, were a
clear acknowledgement by all the parties, including the DRC, that the groups constituted a serious
threat to Uganda’s security, the protection of which required their disarmament, demobilization and
removal from Congolese territory.
20. The threat to Uganda’s security posed by the designated armed groups, and the need to
disarm and remove them, were recognized not only by the six States and three Congolese rebel - 23 -
organizations that signed the Lusaka Agreement, but also by the Secretary-General and the Security
Council. In his report of 15July1999, five da ys after the Lusaka Agre ement was executed, the
Secretary-General emphasized: “The problem of armed groups is particularly difficult and
sensitive. It lies at the core of the conflict in the sub-region and undermines the security of all the
States concerned. Unless it is resolved, no lasting peace can come.” (Counter-Memorial, Ann 46,
para.21; emphasis added.) In a similar vein, the Security Council Statement of 26January 2000
provided: “The Council recognizes that di sarmament, demobilization, resettlement and
reintegration (DDRR) are among the fundamental objectives of the Lusaka Ceasefire Agreement”
(Counter-Memorial, Ann. 57, p. 3; emphasis added).
The linkage between the disarmament of the armed bands and the withdrawal of foreign
forces
21. It was in the context of providing for the disarmament, demobilization and resettlement
of the armed groups, that the Lusaka Agreement a ddressed the presence of foreign military forces
in the DRC. The language of the Agreement manifests the parties’ understanding that there was a
direct cause-and-effect relationship between the activities of the armed groups in the DRC and the
deployment there of foreign forces, including those of Uganda. That is, they recognized that the
cross-border attacks carried out by the armed groups from Congolese territory led neighbouring
States, including Uganda, to deploy their troops in the DRC to eliminate the security threats posed
by these groups. This understanding was reflected in their agreement that the foreign military
forces, as presently constituted, should remain in the DRC pending the disarmament,
demobilization and resettlement of the armed groups . Paragraph12, page6, of the Agreement,
stated that foreign forces were to be withdraw n according to the implementation calendar annexed
to, and expressly made a part of, the Agreement:
“The final withdrawal of all foreign forces from the national territory of the
DRC shall be carried out in accordance with the Calendar in Annex ‘B’ of this
Agreement and a withdrawal schedule to be prepared by the UN, the OAU and the
JMC [that is, the Joint Military Commission].”
22. AnnexB to the Agreement, referred to in paragraph12, is entitled “Calendar for the
Implementation of Ceasefire Agreement”. It lists 21 “Major Ceasefire Events” and establishes - 24 -
dates for each of them, starting with “1. Formal signing of the Ceasefire” on “D-Day”. Among the
most significant of the other events are the following:
“5E. stablishment of Joint Military D-Day + 0 hours to
Commission and Observer Groups. D-Day + 7 days
6. Disengagement of Forces. D-Day + 14 days
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .
12. Beginning of National Dialogue. D-Day + 45 days
13. Deadline for the closure of the National D-Day + 90 days
Dialogue.
14. Establishment of New Institutions. D-Day + 91 days
15. Deployment of UN Peace Keeping D-Day + 120 days
Mission.
16. Disarmament of Armed Groups. D-Day + 30 days to
D-Day + 120 days
17. Orderly Withdrawal of all Foreign D-Day + 180 days”
Forces.
23. As this calendar shows, the parties to the Lusaka Agreement expressly agreed that
withdrawal of foreign forces from the DRC would not occur until after the successful conclusion of
the Congolese national dialogue, the establishment of a new Congolese Government, the
deployment of United Nations peacekeepers and mo st significant, the disarmament of the nine
designated armed groups. Until the occurrence of these “Major Ceasefire Events”, all foreign
forces were expressly directed to remain in place in their existing locations in the DRC . I shall
read from Annex A, Chapter 11, paragraph 11.4:
“All [foreign] forces shall remain in the declared and recorded locations until:
(a)In the case of foreign forces, withdraw al has started in accordance with the
JMC/OAU and UN withdrawal schedule. . . ”.
24. The linkage between the disarmament of the armed groups threatening the security of the
DRC’s neighbours, including Uganda, and the subsequent withdrawal of those States’ armed forces
from the DRC, could not be more apparent. As the Secretary-General reported to the Security
Council in February 2001:
“The Lusaka Ceasefire Agreement ac knowledged the concerns of Rwanda,
Uganda and Burundi over the presence of the armed groups which threaten the
security of their borders, and recognized that the withdrawal of Rwandan and
Ugandan troops would be linked directly to progress made in the disarmament and - 25 -
demobilization of the militias .” (Counter-Memorial, Ann.84, para.88; emphasis
added.)
The significance of the Lusaka Agreement
25. From this discussion of the Lusaka Agreement, the following important conclusion can
be drawn. In the case of Uganda, the parties expressly agreed that Ugandan forces in the DRC
“shall remain” in place, and that they would be withdrawn upon the fulfilment of certain specific
conditions precedent, including the disarmament, demobilization and resettlement of the designated
armed groups that were attacking Uganda from Congolese territory. Accordingly, the Agreement
embodied the express consent of all parties, incl uding the DRC, for Ugandan troops “to remain in
place in their existing locations in the DRC” until the disarmament, demobilization and
resettlement of the armed groups was accomplished.
26. The significance of the Lusaka Agreement w ill not be lost on the Court. In the first
place, on a going-forward basis, the Agreement c onstituted a renewal of the consent previously
given by the DRC, between May 1997 and August 1998, for the deployment of Ugandan troops in
the Congo. Second, it constituted an acceptance by all parties of Uganda’s justification for sending
additional troops into the DRC between mid-Sept ember 1998 and mid-July 1999. If, as the parties
agreed, it was appropriate for Uganda, in July 1999 , to maintain in place her 10,000 troops then in
the Congo because of the threat to her security posed by the anti-Uganda armed groups at that time,
then a fortiori it was appropriate for Uganda to deploy her forces in eastern Congo in
September1998, when the threat to her security was many times greater. In September1998,
Uganda confronted not only the armed groups, whic h were much stronger then than they were by
July 1999, but also confronted the combined hostile forces of the Sudan and Chad, arrayed at key
strategic locations in the DRC from which Uganda was highly vulnerable to imminent attack.
27. The DRC argues that the consent to the presence of Ugandan troops that was given in the
Lusaka Agreement in July1999 can have legal effect only on a prospective basis, and cannot be
applied retroactively. Uganda does not disagree. In the Lusaka Agreement, the DRC and the other
parties expressly consented to the presence of Ugandan military forces in the Congo on a
prospective basis, from July1999 forward. Ho wever, in accepting that Uganda’s self-defence
justified the presence of these forces in easter n Congo in July1999 and beyond, the parties - 26 -
logically accepted self-defence as a justification for Uganda’s insertion of her military forces in the
Congo in September1998, because it is undisputed that the threats to Uganda’s security were
graver and more imminent at that time than they were in July 1999, after the Sudanese and Chadian
forces were expelled from the Congo.
The modification of the timetable
28. In the course of these proceedings, the DR C has argued that Uganda violated the Lusaka
Agreement by keeping her troops in the Congo for more than 180days after the execution of the
Agreement (Reply, para.3.213). This argument is premised on the calendar annexed to the
Agreement, from which I previously read, and specifically its reference to the “Orderly Withdrawal
of all Foreign Forces” at “D-Day + 180 days”. Bu t it is not correct to treat this line item in the
calendar as though it were independent of the other items.
29. The flaw in the DRC’s argument is that the withdrawal of foreign forces was deliberately
scheduled to commence, according to the calenda r, 60days after the “Disarmament of Armed
Groups” and, as the Secretary-General and all of the parties understood, the withdrawal of foreign
forces was conditioned upon “progress” in disarming these groups. Unfortunately, at
“D-Day+180 Days” there had been no real progress in doing so; disarmament of the armed
groups had not even begun. On the ground, impl ementation of the “Major Ceasefire Events” set
forth in the Lusaka Agreement, including the c onvening of the Congolese national dialogue, the
completion of the dialogue, the establishment of new governing institutions, and especially the
disarming of the armed groups ⎯ all of which were to precede the withdrawal of foreign forces ⎯,
took substantially longer than the parties initially projected. Thus, the withdrawal of foreign
forces, including but not limited to those of Uganda , was substantially delayed. The evidence in
this case shows that no other party to the Agreement accused Uganda of violating the Agreement in
this regard. Nor did the Security Council.
30. The position of Zimbabwe, the DRC’s ally , was identical to that of Uganda. In
April2001, nearly two years after the Lusaka Ag reement was executed, Zimbabwe’s Minister of
Defence, Mr.Mahachi, justifie d the continuing presence of Zimbab wean military forces in the
DRC in this manner: “The successful implementation of the Lusaka Peace Accord would - 27 -
determine the pace at which Zimbabwe would con tinue to reduce its troops in the DRC until an
appropriate time for total withdrawal.” (Rejoinder of Uganda, Ann. 50.)
31. One year later, in July2002, Zimbabwe ’s Foreign Minister, Mr.Mudenge, stated: “As
soon as the Lusaka Agreement is fulfilled, we will certainly withdraw our troops immediately.”
This quotation can be found in Annex 82 to Uganda’s Rejoinder.
32. Outside of these proceedings, no one, not even the DRC, has ever seriously contended
that the 180days forecast for the withdrawal of foreign forces was a hard and fast deadline,
independent of the other elements listed in the Calendar of Implementation. In fact, outside of
these proceedings, the DRC herself adopted the sa me position as Uganda and Zimbabwe: that the
timetable set forth in the Lusaka Agreement proved to be too optimistic, and had to be modified;
but the parties’ commitments to fully implement th e Agreement remained firm. Here is what the
DRC’s then Foreign Minister, now Vice-Presiden t, Mr.YerodiaNdombasi, told the Security
Council on 15 June 2000, 11 months after the Lusaka Agreement was executed:
“I must also provide assurances to the effect that the Government of the
Democratic Republic of the Congo negotia ted, through me personally, the Lusaka
Accords and President Kabila himself signed them.
We are in favour of the Lusaka Agreement and call for its full implementation,
even if, for example, the timetable was set inconsistently with the provisions of the
Agreement. We did not exploit that inc onsistency to call the Agreement itself into
question. We are in favour of the im plementation of the Lusaka Agreement.
Everyone should clearly understand that.
Of course, when the veil that shrouds the future is torn open, it will be easy to
judge, but so long as the present remains b lind, no one can forecast with precision
what is going to happen. That is why the Lusaka Agreement was signed and only later
did it become imperative for the dates on the timetable to be modified, although the
urgency of implementation was never lessened. Let me repeat: we are in favour of
the Lusaka Agreement and will give our all to ensure that its implementation is
facilitated.” (Counter-Memorial, Ann. 69, p. 11.)
The equal treatment of all foreign forces
33. Last week, the DRC’s counsel suggested that the Lusaka Agreem ent established a kind
of dual standard with respect to the withdrawal of foreign forces from Congolese territory. In their
view, the Agreement drew a distinction between “invited” foreign forces and “uninvited” foreign
forces (see CR 2005/4, para.32). By “invited” forces, the DRC’s counsel were presumably
referring to those of Zimbabwe, Angola and Namibia. By “uninvited” forces” they were obviously - 28 -
referring to those of Uganda and Rwanda. The pr oblem with this argument is that it cannot be
reconciled with the text of the Agreement, or with the subsequent conduct of the parties. The text
makes no distinction among any of the foreign forces in the DRC. To the contrary, it treats them
all equally (see Ann. A, Chap. 11.4). All were obligated to remain in place pending the fulfilment
of the conditions precedent set forth in the Calenda r of Implementation, and then to withdraw from
the DRC according to the same timetable (ibid.). This was confirmed in the formal plan for the
disengagement of all Congolese and foreign military forces in the Congo agreed to at Kampala on
8 April 2000. The Kampala Disengagement Agreement, as it came to be known, was signed by all
of the parties to the Lusaka Agreement in implemen tation thereof. It is located at tab6 of the
judges’ folder. In paragraph 13 (a), it provided for the initial disengagement of forces to a distance
of 30 km, and subsequent deployme nt to defensive positions within the DRC, to be determined by
United Nations monitors. Paragraph 10 (a) provided that “No Party should be placed at a tactical
disadvantage by the disengagement”, and paragraph2 (b) stipulated that “[t]he Parties understand
and agree that within DRC all parties shall apply the obligations undertaken in this Plan equally”.
Thus, it was a fundamental tenet of the plan that disengagement of forces was to be equal, mutual,
reciprocal and simultaneous ⎯ not unilateral, or in such manner as to put any State at a tactical
disadvantage vis-à-vis the others.
The Kampala Disengagement Agreement
34. The Kampala Disengagement Agreement provides further evidence to refute the
argument of the DRC’s counsel that, at most , the Lusaka Agreement constituted consent for
Ugandan forces to remain in Congolese territory for 180 days. The Kampala Agreement was
signed on 8April2000, almost nine months (o r 270 days) after the Lusaka Agreement, and it
provided for foreign forces to continue to remain in the DRC, after disengaging from the front
lines. As the DRC’s Foreign Minister told the S ecurity Council two months later, “it [became]
imperative for the dates on the timetable to be modified” (Counter-Memorial, Ann. 69, p. 11).
35. The day after the DRC Foreign Minister spoke, on 16June2000, the Security Council
endorsed the timetable for the withdrawal of fore ign forces set forth in the Lusaka Agreement and
the Kampala Disengagement Agreement. In resolu tion 1304, in reference to Uganda and Rwanda, - 29 -
the Council called upon them to “withdraw all thei r forces from the territory of the Democratic
Republic of the Congo without further delay, in conformity with the timetable of the Ceasefire
Agreement and April2000 Ka mpala disengagement plan ” (Counter-Memorial, Ann. 70,
para. 4 (a); emphasis added).
36. Accordingly, there is no basis for the DRC’s argument that Uganda was obligated to
withdraw her forces from the DRC ahead of the sch edule established in the Lusaka Agreement, or
in advance of the other foreign forces in the Congo, including those of Zimbabwe and Angola, for
example. To the contrary, the Lusaka and Ka mpala Agreements provided for the simultaneous
withdrawal of all foreign forces, according to th e calendar agreed upon by the parties at Lusaka,
which was expressly conditioned on the prior occu rrence of certain “Major Ceasefire Events”,
including the disarmament and demobilization of the designated armed groups. Absent the
fulfilment of those conditions, and the simultaneous withdrawal of the other foreign forces from the
DRC, there was no obligation on Uganda to withdraw her own military forces ahead of schedule.
Mr. President, would this be a convenient time for the morning coffee break?
The PRESIDENT: You may continue.
Mr. REICHLER: Thank you, Mr. President.
The Harare Disengagement Agreement
37. The Kampala Disengagement Agreement was implemented successfully, and the various
foreign and Congolese forces deployed at the front lines did in fact disengage from one another.
This substantially reduced the danger of a recurr ence of armed conflict, and Uganda responded by
withdrawing some of her forces from the DRC, because, in Uganda’s view, her security interests no
longer required those troops to remain in the Co ngo. Uganda took this action voluntarily, not
because she was obligated to withdraw any forces at that time. Uganda’s withdrawal of her forces
from the DRC accelerated after the conclusion of the Harare Disengagement Agreement on
6December2000. The Harare Agr eement is located at tab 7 of the judges’ folder. The Harare
Agreement supplemented the earlier Kampala Disen gagement Agreement and provided for further
disengagement and redeployment within the DRC of the contending foreign and Congolese - 30 -
military forces. Separate sub-plans were adopt ed with respect to each of four designated
geographic areas of the DRC. The sub-plan for Area 1 applied to Uganda, the MLC and the FAC
(the Congolese army) and its allies. None of the other three sub-plans applied to Ugandan forces.
The sub-plan for Area 1 is located at pages 3 and 4 of the Harare Agreement at tab 7. There is a
map of the DRC, at page 13 of the Agreement, whic h depicts all four areas. I referred to this map
and the sub-plan for Area 1, located at pages 3 and 4, in my speech last Friday. In particular, I
pointed out that contrary to the graphic depic tion presented by the DRC earlier last week, Area1
was not blanketed by Ugandan military forces, but by MLC military forces. It is worth
highlighting again that the MLC had many thousands of troops under its command, and was the
de facto administrative authority in most of Area 1. MLC forces were present in far greater
numbers than the Ugandans, and were more widely dispersed. The Ugandans, as I have said, were
mainly concerned with the border areas of eastern Congo, and with a limited number of key
strategic locations, mainly the airports and airfields between Gbadolite and the Ugandan border.
The status of the MLC
38. It is worth pausing here , in light of the accusations made against Uganda, to note the
special status given to the MLC, and the other two Congolese rebel organizations under the Lusaka
Agreement and the two subsequent disengagement plans. The MLC was, of course, a party to the
Lusaka Agreement. It was to participate in the inter-Congolese political dialogue on an equal basis
with the DRC Government. Its military forces were to be integrated into a new national army. In
addition, and this is particularly noteworthy, paragraph18 of the Agreement provided that: “In
accordance with the terms of the Agreement, and upon conclusion of the Inter-Congolese political
negotiations, state administration shall be re-estab lished throughout the national territory of the
Democratic Republic of Congo.” By this provision, the parties agreed, that until the conclusion of
the inter-Congolese political negotiations, civil admi nistration would remain in the hands of the
local authorities who exercised it de facto, which in the case of the Congolese territory
encompassed by Area1 under the Harare Agreement, was the MLC. This was reinforced by the
disengagement plan itself, which confined DRC government forces to their side of the
disengagement line, thus assuring that civil admi nistration in areas held by the MLC and other - 31 -
rebel organizations would con tinue to be exercised by those organizations, until the
inter-Congolese dialogue produced a new political dispensation in the DRC.
39. As I mentioned last Friday, the result of the inter-Congolese political negotiations,
achieved in December 2002, was to create a new political dispensation in which the MLC’s leader,
Jean-Pierre Bemba was made a Vice-President of the DRC, and senior ministerial positions were
given to MLC representatives, in addition to the incorporation of the MLC’s military forces into a
new, national Congolese army. In short, the pa rties to the Lusaka Agreement accorded a high
degree of legitimacy to the MLC, as did the Congolese themselves in the new political
dispensation. By contrast, the rebel groups th at fought against Uganda were designated for
elimination by the parties to the Lusaka Agre ement, by their disarmament, demobilization,
resettlement and reintegration. The parties were expressly forbidden from providing any support
whatsoever to these “negative forces”.
The voluntary withdrawal of most of Uganda’s troops
40. To be clear about the number of Ugandan forces in the Congo at the end of 2000, it
should be recalled that the number of Ugandan troops in Congo at the height of the conflict was
around 10,000. After the Kampala Disengagement Agreement, that number was reduced, and after
the Harare Disengagement Agreement the number was reduced significantly, especially between
January and April 2001. As set forth in Uganda’s Counter-Memorial, at paragraph 101, by the end
of April 2001, there were approximately 3,000 Ugandan troops left in the DRC. After April 2001,
for reasons I will now explain, Uganda a ll but ceased withdrawing her troops from Congo
unilaterally.
41. The main reason Uganda stopped withdrawing her troops from Congo was the request of
the Secretary-General that she stop doing so. In April2001, PresidentMuseveni made a public
announcement that all Ugandan forces remaining in the C ongo would soon be withdrawn. He
stated that Ugandan troops in eastern Congo ⎯ where the majority of them then were ⎯ were
neither authorized nor trained to carry out the responsibility of keeping public order there,
especially in the volatile Ituri region. He said th at this role should be played by United Nations
peacekeepers, as envisioned in the Lusaka Agreem ent. President Museveni’s public statement - 32 -
elicited a prompt response from the Secretary-General, in the form of a letter dated 4 May 2001. In
fact, the Secretary-General urged Uganda not to withdraw her remaining forces from Congo
unilaterally, but only to do so in accordance with the disengagement process rooted in the Lusaka
Agreement. The text of the Secretary-General’s letter is at tab 13 of the judges’ folder. It reads as
follows:
“At this particularly sensitive and deli cate stage in the DRC Peace Process, I
believe it is crucial that Uganda and all the other signatories to the Lusaka Agreement
stay fully engaged with the internati onal community and the United Nations in
particular as together we seek to consolidate the recent positive trends in the DRC.
I am confident of your commitment to th e search for peace in the DRC. In this
regard, I wish to encourage you to continue with the withdrawal of Ugandan troops in
the context of the disengagement process.” (Emphasis added.)
42. After receiving the Secretary-General’s lette r, President Museveni agreed to his request,
and reversed his decision to withdraw the remain ing Ugandan forces from the DRC. None of the
parties to the Lusaka Agreement, including the D RC, protested this action. From that point
onward, however, Uganda remained determined to withdraw her troops from the DRC at the
earliest opportunity, without offending the Secretary-General or the international community, or
violating her commitments under the Lusaka Agreemen t. To this end, Uganda repeatedly called
upon the Security Council to send a multinational peacekeeping force to the DRC, to assume the
role assigned to United Nations peacekeepers in the Lusaka Agreement, and to permit Uganda
finally and fully to withdraw her troops from the Congo.
IV. The consent given in the Luanda Agreement of September 2002
43. I shall now turn to the fourth and final pa rt of my presentation, wh ich will focus on the
reconfirmation of the DRC’s consent to the mainte nance of Ugandan armed forces in her territory,
as conveyed in the bilateral agreement between th e DRC and Uganda executed at Luanda, Angola,
on 6September2002. The Luanda Agreement, wh ich was signed by the Presidents of the DRC
and Uganda, expressly recognized, once again, the se riousness of the threat to Uganda’s security
posed by the armed groups of anti-Uganda insu rgents operating from eastern Congo, and provided
that Ugandan troops could remain in the DRC un til appropriate security mechanisms were put in
place: “The Parties agree that the Ugandan troo ps shall remain on the slopes of Mt.Ruwenzori - 33 -
until the Parties put in place security mechan isms guaranteeing Uganda’s security, including
training and coordinated patrol of the border.” (Luanda Agreement, Art. 1, para. 4.)
44. The Luanda Agreement, which is located at tab 8 of the judges’ folder, provided for the
orderly withdrawal of all other Ugandan forces that were then in Congo. Specifically, the DRC and
Uganda agreed that Ugandan troops at Gbado lite, Beni and other localities would be withdrawn
immediately, and that Ugandan forces at Bunia, the capital of Ituri Province, would be withdrawn
according to a calendar set forth in an annex to the Agreement (see Luanda Agreement, Art.1).
Like the calendar annexed to the Lusaka Agreement, the calendar agreed to at Luanda included a
series of events, in sequence, leading up to and making possible the withdrawal of Ugandan forces
from Bunia. The situation in Bunia at the ti me, September2002, was extremely dangerous.
Long-standing rivalries between the Hema and Lendu ethnic groups erupted into spasms of
violence, including massacres of unarmed civilians . The local Congolese administration in Ituri,
consisting of competing factions of the RCD-K rebel organization that had signed the Lusaka
Agreement, and later split apart into several rival groups, was ineffective in maintaining order. Into
this void, the Governments of the DRC and Uganda agreed to insert themselves, as partners for the
first time.
45. As stipulated in the Luanda Agreement, the DRC and Uganda agreed to put in place,
with the assistance of the United Nations, “a Join t Pacification Commission on Ituri consisting of
the Parties [that is, the DRC and Uganda], politi cal, military, economic and social forces active in
the Bunia area, and the inhabitant grassroots communities” (Luanda Agreement, Art.1, para.3).
The function of the Ituri Pacification Commission, or IPC, was to bring all relevant actors together
to reach agreements to end the violence, establis h peace, and create law enforcement mechanisms
to assure security in the region. The withdraw al of Ugandan forces from Bunia, it was agreed,
would follow the “Inauguration of [the] IPC in Bunia”, the “Establishment of Administrative
authority in Ituri Province” by the IPC, and the “Installation [by the IPC] of [a] law enforcement
mechanism to replace” the Ugandan forces (Lua nda Agreement, Ann.A.). The Luanda
Agreement, therefore, constituted the consent of the DRC for Ugandan troops to remain on the
slopes of Mount Ruwenzori until the parties put in place mechanisms to guarantee Uganda’s
security, and to remain in Bunia until the Itur i Pacification Commission came into existence and - 34 -
established a new administrative authority and law enforcement mechanism for Ituri Province. All
other Ugandan forces were to be, and were in fact, withdrawn from the DRC. From
September 2002 onward, the Ugandan military presence in the DRC was, as it was before that date,
expressly consented to by the Government of the DRC.
Mr. President, I have less than five minutes remaining. If I may continue?
The PRESIDENT: You may continue, please.
Mr. REICHLER: Thank you.
Co-operation between Uganda and the DRC
46. After September 2002, the DRC and Uganda worked in partnership to end the violence in
Ituri. In particular, Uganda worked in cl ose collaboration with the DRC to obtain ceasefire
agreements between and among the warring Hema and Lendu ethnic militias. These agreements
were obtained painstakingly and one by one, but eventually all of the relevant groups agreed to stop
fighting. These ceasefire agreements are included in the judges’ folder at tabs 16 through 19. The
process took longer than initially expected, and th e timetable annexed to the Luanda Agreement
was extended, by mutual agreement of the DRC and Uganda, on several occasions.
In February 2003, President Museveni of Uganda and PresidentJosephKabila of the DRC met at
Dar-es-Salaam. Their Joint Communiqué
“noted the deteriorating security and human itarian situation in Ituri Province caused
by the renewed hostilities between the armed f actions. Their Excellencies reaffirmed
their commitment to the implementation of the Luanda Accord. They agreed to
establish a new framework for the work of the Ituri Pacification
Commission (IPC) . . .” (Judges’ folders, tab 9, p. 2.)
The withdrawal of Uganda’s remaining troops
47. PresidentsMuseveni and JosephKabila agr eed that “the IPC should be constituted and
commence its work on 17February2003, and sha ll conclude its work on 20March2003, to be
followed by the total withdrawal of Ugandan troops from Ituri region” ( ibid., p. 3). On the ground,
ongoing inter-ethnic violence delayed the start of the IPC for one month, until 17March.
Accordingly, the DRC’s Minister of Human Right s and Uganda’s Minister of State for Foreign - 35 -
Affairs, in representation of their respective Pr esidents, signed an agreement at Gulu, Uganda,
extending by one month the timetable announced by the Presidents in February. This Agreement,
at tab9 of the judges’ folder, extended the date for withdrawal of Ugandan forces from Bunia to
late April2003. The date was extended once agai n, to late May2003, by mutual agreement of
PresidentsMuseveni and Kabila at their meeting in Pretoria, South Africa, on 9April2003.
Ugandan forces then withdrew as agreed. As is now well established, the presence of Ugandan
forces in the DRC ended on 2 June 2003.
Conclusion
48. Mr.President, distinguished Members of the Court, Mr.Brownlie and I today have
covered the entire period when Ugandan military forces were present in the DRC, from their initial
entrance into eastern Congo in May1997 until their full and final departure in June2003. The
evidence fully supports Uganda’s contention that he r armed forces were present in the Congo from
May 1997 to August 1998, and from July 1999 through June 2 003 with the express consent of the
Government of the DRC, pursuant to oral agreements with PresidentLaurentKabila in May and
December1997, the bilateral Protocol of Apr il1998, the multilateral Lusaka Agreement of
July 1999 and the bilateral Luanda Agreement of September 2002.
49. The only period not covered by the DRC’s express consent is that from
mid-September1998 to mid-July1999. It is Ug anda’s position that the presence of her military
forces in the DRC during this 10-month period was pu rsuant to the lawful exercise of her right to
self-defence. Mr. Brownlie very ably demonstrated this yesterday morning.
50. Uganda further submits, that in evalua ting the necessity and proportionality of Uganda’s
military exercise in the DRC, the views of the parties to the Lusaka Agreement should be accorded
some weight. As we have seen, the parties to the Agreement expressly recognized the gravity of
the danger to Uganda posed by the armed attack s of the various rebel bands identified in the
Agreement; on this basis they authorized the continuing presence of Ugandan forces in the Congo
for as long as the armed groups remained arme d and mobilized. Uganda submits that this
constitutes acknowledgment by the Lusaka parties th at the deployment of Ugandan forces in the
DRC was a necessary and proportionate response to th e threat to Uganda’s security posed by the - 36 -
presence of the armed groups in Congolese territory. This was in July1999, when the threat to
Uganda’s security was smaller than it was in September1998. If the presence of up to
10,000Ugandan forces in the Congo was justifiable inJuly1999, as the DRC herself
acknowledged when she signed the Lusaka Agreement, then logically it could not have been
otherwise in the period between September 1998 and July 1999.
51. That completes my presentation to the Court. And it completes Uganda’s presentation
for this morning. With the Court’s permission, I will be followed to the podium tomorrow morning
by Uganda’s next speaker, my distinguished co lleague, ProfessorEricSuy, who will address the
Court on the subject of Uganda’s counter-claims. I thank you, Mr.President and distinguished
Members of the Court, for the honour of appearing before you again today.
The PRESIDENT: Thank you, Mr. Reichler.
This concludes this morning’ s hearings. The next sitting of the Court will be held at
10 o’clock tomorrow morning when the Court will continue to hear the oral argument of Uganda.
The sitting is closed.
The Court rose at 11.50 a.m.
___________
Public sitting held on Tuesday 19 April 2005, at 10 a.m., at the Peace Palace, President Shi presiding