Summaries of Judgments, AdvNot an official documents of the Internationa
l Court of Justice
ARMED ACTIVITIES ON THE TERRIITORYOF THE CONGO (DEMOCRATIC
REPUBLIC OF THE CONGO v.UGANDA) (PROVISIONAL MEASURES)
Order of :lJuly 2000
In an order issued in the case concerning Armed Both Parties must, forthwith, prevent and refrain
Activities on the Territory of the Congo (Democratic from any action, and in particular any armed action,
Republic of the Congo v. Uganda), the Courtunanimously which might prejudice the rights of the other Party in
held that "both Parties must, forthwith,prevent and refrain respect of whatever judgmentthe Court may render in
from any action, and inparticular any armed action, which the case,or whichmight aggravateor extendthe dispute
might prejudice the rights of the other Party in respect of beforethe Courtormakeit moredifficultto resolve;
whatever judgment the Court may render in the case, or (2) Unanimously,
which might aggravate or extend the dispu1.ebefore the
Courtormakeit moredifficulttoresolve". Both Parties must, forthwith, take all measures
necessary to comply with all of their obligations under
The Court unanimous1:yadded that "both Parties must, international law, in particular those under the United
forthwith,take all measuresnecessaryto complywith all of Nations Charter and the Charter of the Organizationof
their obligationsunder internationallaw, inparticular those African Unity, and with United Nations Security
under the United Nations Charter and the Charter of the Councilresolution1304(2000) of16June2000;
Organization of African Unity, and with UnitedNations
SecurityCouncilresolution 1304(2000)of 16June2000". (3) Unanimously,
Both Parties must, forthwith, take all measures
Finally, it unanimously stated that "both Parties must, necessary to ensure full respect within the zone of
forthwith,take all measures necessary to ensure full respect conflict for fundamental human rights and for the
within the zone of conflict for fundamentallluman rights applicableprovisionsof humanitarianlaw."
and :Fothe applicableprovisionsof humanitarianlaw".
The Court was cornposed as follows: President
Guillaume; Judges Oda, Bedjaoui, Ranjevcl, Herczegh,
Fleischhauer, Koroma, Vereshchetin, Higgins, Parra- Judges Oda and Koroma appended declarations to the
Arariguren, Kooijmans, Rezek, Al-Khasawneh, Order.
Buergenthal;RegistrarCou.vreur.
The full text ofthe operativetext of theOrder reads as
follows: History of tl~eproceedingsand submissions of the
Parties
"47. Forthese reasons., (paras. - 17)
THE COURT,
It~dicates,pending a decision in the proceedings On 23 June 1999, the Congo instituted proceedings
instituted by the Democratic Republic of the Congo against Uganda in respect of a dispute concerning"acts of
armedaggressionperpetratedby Ugandaon the territoryof
against the Republic: of Uganda, the following
provisionalmeasures: the DemocraticRepublicof the Congo,in flagrantviolation
(1) Unanimously, of the United Nations Charter and of the Charter of the
OrganizationofAfricanUnity";
Continued on nepage In the Application the Congo founds the jurisdiction of ''I)the Governmentof the Republic of Uganda must
the Court on the declarations made by the two States under order its army to withdraw immediately and completely
Article 36, paragraph2, of the Statute. It requests the Court fromKisangani;
to: (2) the Government of the Republic of Uganda must
"Aedge and decIar"etkot: order itsarmy to cease forthwith ,211fighting or military
(a) Uganda is guilty of an act of aggression within activity on the territory of the Democratic Republic of
tlie Congo and to withdraw inlmediatelyand completely
the meaning of Article 1 of resolution 3314 of the froni that territory, and must forthwith desist from
General Assembly of the United Nations of 14
December 1974 and of the jurisprudence of the providing any direct or indirect support to any State.
International Court of Justice, contrary to Article 2. group. organization,movement or individualengaged or
paragraph4, of the UnitedNations Charter; preparing to engage in military activities on the territory
(b) further,Uganda iscommittingrepeatedviolations ofthe DemocraticRepublicof the Congo;
(3) the Government of tlie Republic of Uganda iilust
of the Geneva Conventionsof 1949and their Additional
Protocols of 1977, in flagrant disregard of the take all measures in its power to ensure that units,forces
elementary rules of international humanitarian law in or agents which are or could be under its authority, or
conflict zones, and is also guilty of massive human which enjoy or could enjoy its support, together with
rights violationsin defiance of the most basiccustomary organizations or persons which could be under its
law; control, authority or influence, desist forthwith from
committing or inciting the commission of war crimes or
(c) more specifically, by taking forcible possession any other oppressive or unlawful act against all persons
of the Inga hydroelectiic dam, and deliberately and
regularly causing massive electrical power cuts, in on the territory of the Deinocratic Republic of tlie
violation of the provisions of Article 56 of the Congo;
Additional Protocol of 1977,Uganda has reridereditself (4) the Government of the Republic of Uganda must
responsible for very heavy losses of life among the 5 forthwith discontinueany act having the aim or effect of
disrupting, interfering with or hampering actions
million inhabitants of the city of Kinshasa and the
surroundingarea; intendedto give the population ofthe occupiedzonesthe
(4 by shootingdown, on 9 October 1998at Kindu, a benefit of their fundamental human rights, and in
Boeing 727 the property of Congo Airlines, thereby particulartheir rights to healthand education;
causing the death of 40 civilians, Uganda has also (5) the Government of the Republic of Uganda must
violated the Convention on International Civil Aviation cease forthwith all illegal exploitatio~iof the natural
resources of the DemocraticRepublic of tlie Congo and
signed at Chicago on 7 December 1944, the Hague
Conventionof 16December 1970for the Suppressionof all illegal transfer of assets, equipment or persons to its
Uiilawful Seizure of Aircraft and the Montreal tenitory;
Convention of 23 September 1971 for the Suppression (6) the Government of the Republic of Uganda inust
of U~ilawfulActs against theSafetyof CivilAviation. henceforth respect in full the right of the Democratic
Republic of the Congo to sovereignty, political
Cortsequeitt~, nnd pzrrsuant to the aforemeittioned
internatioizal legal obligations, to acljudgeand declare independence and territorial integrity, and the
that: fundamental rights and freedoms of all persons on the
(I) all Ugandan armedforces participating in acts of teiritory of the DemocraticRepublicof the Congo.
aggression shall forthwith vacate the territory of the 'TheDemocratic Republic of the Congo would, at all
DemocraticRepublicof the Congo; events, respectfully remind the Court of the powers
con:ferredupon it by Article 41 of its Statuteand Article
(2)Uganda shall secure the immediate and
unconditionalwithdrawalfrom Congoleseterritory of its 75 of the Rules of Court, which authorize it in the
nationals. both naturaland legalpersons; present case to indicate all suchprovisional measures as
(3) the Democratic Republic of the Congo is entitled it may deem necessary in order to bring to an end the
intolerable situation which continues to obtain in the
to compensation from Uganda in respect of all acts of Democratic Republic of the Congo, and in particular in
looting, destruction, removal of property and persons the Kisanganiregion".
and other unlawful acts attributable to Uganda, in
respect of which the Democratic Republic of the Congo By lettersdated 19June 2000, the Presidentof the Court
reserves the right to deternline at a later date the preciseaddressedthe Partiesin tliefollowingterms.
amount of the damage suffered, in addition to its claim "Acting in confoimity with Article 74, paragraph 4,
of the Rules of Court,I hereby draw the attentionof both
for therestitutionofall propertyremoved". Parties to the need to act in such a way as to enable any
On I9 June 2000 the Congo submitted to the Court a
request for the indication of provisional measures by which Order the Court will make on the request for provisional
it asked the Court to indicate as a matter of urgency the measuresto have its appropriateeffects".
followingprovisionalmeasures: Hearingswere held on 26 and 28 June 2000.Argilrnlentsof the Parties Lusaka Agreement", concluded between the parties to the
(paras. 18-31) conflict and aimed at resolving tlie conflict and establishing
a framework for peace in-the region; that "both the
The Court observes that at the hearing:<the Congo Application and the request for provisional measures are
essentially reiterated thellne of argument developed in its based on preposterousallegationsthat are not backed by any
Application and in its request for tlie indication of
provisional measures; citing the Coui-t'sjurisprudence, it evidence whatsoever before this Court"; and that "in the
argued more pai.ticularlythat the requirements of urgency circumstancesthe request of the DemocraticRepublic of the
and of the risk of irreparable damage, conditions precedent Congo is inadmissible,this for the reason that as a matter of
law the Court is prevented fromexercising its powers under
for the indication ofprovir;ionalmeasures, were satisfied in Article 41 of the Statute", because"the subjectmatter of the
the present cases; adding that "[wlhen an armed conflict request for interim measures is essentially the same as the
deve:lopsand endangers not only tlie rights and interests of
the State but also the lives of its inhabitants,the urgency of matters addressed by ...Security Council resolution [13041
provisional measures and. the irreparable nature of the of 16 June [2000]". Uganda argued in the alternative that
damage cannot be in doubt". The Congo further observed "even if the Courthad a prima facie competenceby virtue of
Article 41, there are concerns of propriety and judicial
that "the fact that certain Ugandan high authorities have prudence which strongly militate against the exercise of the
officially stated that they agree to withdraw their forces discretion which tlie Court has in the indication of interim
from, the Kisangani region mid that the beginnings of a measures". Uganda further argued that there was an
withdrawal have in fact taken place can ..in no way call
into question" tlie need foi:tlie indication ofeasures as a "absence of any clear link between tlie request and the
matt,zr of urgency, and that "these statements [did not] original claim", and that "the [Congo's] request [fails to
concern ...the whole of Congolese territoiy"; the Congo satisfy]the requirementof urgency or the risk of irreparable
damage" and that there cannot "be an element of urgency
also contended that there was "a sufficient connection after the Congo has waited for almost a year before making
between the measures requestedand therights protected";it a complaint".
stated, on the basis of a coniparison of the text for the
request of the indication of provisional measures with that Uganda finally stated that "the Lusaka Agreement is a
of the Application instituting the proceedings, that the comprehensive system of public order", "a binding
"categories of act referredto are similar" and thatthe "rules international agreement that constitutes the governing law
of law applicable are siiniliar";the Congo further contended between and among the parties to the conflict"; that "[tlhe
SecurityCouncil and the Secretary-Generalhave repeatedly
that the Court has prima faciejurisdiction "to entertain the declaredthat [this]Agreement is the only viable process for
dispute which is the subject matter of the 12pplication", achieving peace within the Democratic Republic of the
having regard to the declarations of acceptance of its
compulsory jurisdiction deposited by the two Parties. The Congo and for achieving peace between the Democratic
Congo stated finally that "[tlhere is nothing in the political Republic of the Congo and its neighbours"; and that "the
and diplomatic context of' the present case which might specific interim ineasures requested by Congo directly
prevent the Court from taking the measures which the conflict with the Lusaka Agreement, and with the Security
Council resolutions - including resolution 1304 ...-
circumstances require"; it pointed out that "the Security callingfor implementationof the Agreement".
Council has adopted a resolution - resolutior~1304 of 16
June 2000 - in which it was demanded that Uganda
withdraw its forces not only from Kisangani but from all The Coztrt k reasoiling
Congolesetcrritory, without hrther delay"; and, referringto (paras. 32-46)
the Court's jurisprudence, it argued that "[ilt is not ...
possible to derive from [the]parallel powers of the Security The Court notes that the two Parties have each inade a
declaration recognizing the jurisdiction of the Court in
Cour~ciland of the Court any bar to the exerciseby the latter accordance with Article 36, paragraph 2, of the Statute;
of itsjurisdiction". Uganda on 3 October 1963 and the Congo on 8 February
Uganda, at the hearings,pointed out that Ugandanforces 1989; neither of the two declarations includes any
entered Eastern Congo in May 1997at the invi.:ationof Mr. reservation. The Court therefore considers that those
Kabila, to work in collaborationwith his forces to arrest the
declarations constitute a prima facie basis upon which its
activities of the anti-Uganda rebels. Ugaildan forces jurisdiction in thepresent case might be founded.
remained in Eastern Corigo after Mr. Kabila became The Court takes note that in its request for the indication
President, again at his invitation. This arrangement with of provisionalmeasures,the Congorefers to resolution 1304
PresidentKabila was fonnalized by writtenagreementdated (2000), adopted by the Security Council under Chapter VII
37 A.pril 1998; Uganda asddedthat it "has IIO territorial
interests in the Democratic Republic of the (longo", that of the United Nations Charter on 16 June 2000; the text of
"[tlhere is a complete political vacuuni in Eastern Congo" the said resolution is then quoted in full.he Court firther
notes Uganda's argument that the Congo's request for the
and that "[tlhere is no one else to restrain the anti-Uganda indication of provisional measures concerns essentially the
rebel:; or guarantee the security of Uganda's border"; same issues as this resolution; that the said request is
Uganda further explained. that "on its part, [it] has accordingly inadmissible;and that therequest is, moreover,
endeavoured to fulfil all its obligations laid tlowl~in the nioot?since Uganda fully accepts the resolution in questionand is complyingwith it. It observes,however, that Security tlieCourt is of tliepitiioiithat persons, assets aid resources
Council resolution 1304 (2000), and tlie measures taken in present on the territory of the Congo, particularlyin the area
its implementation,do not preclude the Court from acting in of conflict,remain extremely vulnerable, and that there is a
accordance with its Statute and with the Rules of Court, serious risk that the rights at issue in this case may suffer
recallingthat irreparableprejudice. The Court consequentlyconsidersthat
"while there is inthe Charter provisional measures niust be indicated as a matter of
urgency in order to protect those rights; it observes that
"a provision for a clear deiiiarcation of functions Articlt:75, paragraph 2, of the Rules of Court empowersthe
between the General Assembly and the Security
Council, ill respect of any dispute or situation, that the Court to indicate measures that are in whole or in part other
former should not make any recommendation with than those requested.Having regard to the informationat its
regard to that dispute or situation unless the Security disposal, and in particular the fact that the SecurityCouncil
Council so requires, there is no similar provision has detern~ined, in its resolution 1304 (2000), that the
situation in the Congo "continues to constitute a threat to
anywhere in the Charter with respect to the Security internationalpeace and security in the region", the Court is
Council and the Court. The Council has functions of a of the opinion that there exists a serious risk of events
political nature: assigned to it, whereas the Court
exercises purely judicial functions. Both organs can occurring which might aggravate or extend the dispute or
therefore perform their separate but coinpletnentary make itmore difficultto resolve.
functioiiswith respectto the satneevents".
Declarntior~ofJudge Oda
The Court then observes that in the present case the
Security Council has taken no decision which would prima Judge Oda voted in favour of the Court's Order only
facie preclude the rights claimed by the Congo from because he could not but agreethat, in orderto restore peace
"be[ing] regarded as appropriate for protection by the in the region, the measures indicated by the Court in this
indication of provisional measures"; nor does the Lusaka Order should be taken by the Parties - measures on which
Agreement, to which Security Couiicil resolution 1304
few v~ouldever disagree. He believes, however, that the
(2000) refers and which constitutes an international Court is rlot in a position at this time to grant provisional
agreement bindingupon the Parties,preclude the Court from measures for the reason that the present case, brought
acting in accordance with its Statute and with the Rules of unilaterally against Uganda on 23 June 1999,is - and has
Court. Neither is the Court precluded from indicating fromthe outsetbeen - irtadn~issible.
provisional measures in a case merely because a State which
has simultaneouslybrought a number of similarcasesbefore Judge Oda suggests that tlie mere allegation by the
the Court seeks such measures in only one of them; and Applicant that there has been "armed aggression"
peipe11-ateby the Responderitin its temtory does not mean
pursuant to Article 75, paragraph 1, of its Rules, the Court that legal disputes existbetween these Parties concerning(i)
may in any event decide to examine pi-opr-ioinotuwhether the alleged breach of the Applicant's rights by the
the circumstances of tlie case require the indication of Respondent or the alleged failure of the Respondent to
provisional measures. observe its international legal obligations to the Applicant,
The Court then observes that its power to indicate
and (-ii)the denial by the Respondent of the Applicant's
provisional measures under Article 41 of the Statute has as allegations. The Applicant in this case did not, in its
its object to preserve the respective rights of the parties Application, show us that both Parties had attempted to
pending the decision of the Court, and presupposes that identify the legal dispzrtes existing between them and to
irreparable prejudice shall not be caused to rights which are resolve those disputes by negotiation. Without snch a
the subject of dispute in judicial proceedings; aiid that the mutual effort by tlie Parties, a mere allegatioli of armed
rights which, according to the Congo's Application, are the aggressioncannot be deemed suitableforjudicial settlement
subject of the dispute are essentially its rights to sovereignty
by the Court.
and territorial integrity and to the integrity of its assets and Judge Oda points out that the United Nations Charter
natural resources, and its rights to respect for the rules of provides for the settlement,through the SecurityCouncil, of
international humanitarian law and for the instrunlents disputes raising issues of amled aggression and threats to
relating to tlie protectionof human rights. international peace of the type seen in the present case. In
The Court notes that, it is not disputed that Ugandan
forces are present on theterritory of the Congo, that fighting fact, the Security Council, as well as the Secretaiy-General
acting on its instructions, has made every effort over the
has taken place on that territory between those forces and past several years to ease the situation and restore peace in
the forces of a iieighbouring State, that the fighting has the region.
caused a large number of civilian casualties in addition to Judge Oda contends that the Application in the present
substantial material damage, and that the humanitarian
situation remains of profound concern; and that it is also not case is inadmissibleand believes that the presentcase lacks,
disputed that grave and repeated violations of human rights even prima facie, the element of admissibility. The
jurisprudence of the Court shows that judgments rendered
and interiiationalhumanitarian law, includingmassacresand by the Coui-tand provisional measures indicated by it in
other atrocities, have been committed on the territoiy of the advance of the merits phase have not necessarily been
Democratic Republic of the Congo. In tlie circumstances, compliedwith by the respondent States or by the parties. Ifthe Court agrees to be seizedof the application or request Declnrlitioi~ qfJudge Koronza
for the indication of provisional measures of one State in
such circu~nstances, then the repeated disregard of the In his declaration Judge Koroma stated that the Court
judg~nents or orders of the Court by the parties will had recognizedand takenjudicial noticethat since the latest
outbreak of conflict in the area between foreign troops,
inevitably impair the dignityof the Court and raise doubt as hundreds of Co~lgolesehave been killed and thousands
to the judicial role to be played by the Court in the wounded and the destruction of national assets had also
internationalcommunity. taken place ona massive scale.It was, therefore, considered
Judge Oda recalls that it is a principle that the Court's
jurisdiction is foundedon the consent of the Stat,:spartiesto that unless urgent measures were taken the rights of the
the dispute and that declarations under the optional clause population might be further imperilled. He further stated
that while the Order acknowledged that Security Council
accepting the Court's compulsoryjurisdiction may be made resolution 1304 (2000) of 16 June 2000 had called on aN
only if they arise frotn the bona fide will of the State.If theparties to cease hostilities, the Court,as a court of law. had
Court admits applications 01.grants requests for provisional to make its own detel~llinationof the events to see whether
measures, he is afraid that States that have accepted the an order was warrantedwhich should be cast in accordance
compulsory jurisdiction of the Court under Article 36,
paragraph 2, of the Court's Statute will be inclined to with judicial norms. He then stated that the Order must,
withdraw their declarations, and fewer Stateswill accede to therefore, be seenin the light of Article 59 of the Statuteof
the Court and Article 94 of the United Nations Charter. He
the compromissoryclausesof multilateraltreaties. also considered the Order as part of the process of the
The fact that a State appearing before the Courtin this judicial settlementof the dispute and of special significance
case is;not represented bya person holdinghigh officein the to the Parties, who should refrain from any action which
Government actingas Agent (and sucha situation has rarely might aggravate or extend the dispute. He concluded by
been encountered in the history of the Court11reinforces
stating that the Order in no way prejudged the facts or
Judge Oda's feeling thata question ariseshereas to whether meritsof the case.
the case is brought to the Court in the interest of the State
involvedor for some other reason.
Summary of the Order of 1 July 2000