INTERNATIONALCOURTOFJUSTICE
CASE CONCERNING ARMED
ACTIVITIES
ON THE TERRITORY
OF THE CONGO
DEMOCRATICREPUBLICOFTHECONGO
v.
UGANDA
REJOINDER
SUBMITTED BY
THEREPUBLICOFUGANDA
VOLUME1
6 DECEMBER2002 TABLEOFCONTENTS
Page
INTRODUCTION ......................................................
CHAPTER1 : THEPERSISTENTANOMALIESIN
THEREPLY CONCERNING
MATTERSOF PROCEDUREAND
EVIDENCE ...........................10..................
A. The Continuing Confusion RelatingTo Liability
(Merits)And Quantum (Compensation) ..............0...
B. Uganda Reaffirms Her PositionThat The Court
Lacks CoinpetenceTo DealWith The Events In
Kisangani In June 200............................1..........
C. The Courl:'~Finding On The Third Counter-Claim...13
D. The Alleged Admissions By Uganda ................15.........
E. The Appropriate StandardOf Proof........................
CHAPTER II: REAFFIRMATION OFUGANDA'S
NECESSITY TOACTIN SELF-
DEFENCE ............................21...................
A. The DRC's AdmissionsRegardingThe Threat To
Uganda's Security PosedBy The ADF ...................
B. The DRC's Admissions RegardingThe Threat To
Uganda's SecurityPosedBy Sudan .......................
C. The DRC's Admissions Regarding Her Consent To
The PresetnceOf UgandanTroops In Congolese
Territory To Address The Threats To Uganda's
Security........................................4 1............................D. The DRC's FailureTo Establish That Uganda
Intervened MilitarilyIn The DRC PriorTo Mid-
September 1998 ......................................4...........
(1) Uganda had no rolewhatsoeverin the
rebellionof Congolese Armyunits on 2
August 1998or the failed coupd'étatof the
same date ......................................0.........
Uganda didnot participate in the attackon
(2)
Kitona militarybase ...........................4......
(a) Thejournalistic "evidence"cited in
the Reply ......................................
(b) The "first-hand" accounts ..............6..
(c) The alleged "Ugandan" tank .........62....
(3) Uganda did not participate in the attack on
Kindu .........................................64.............
(4) Uganda didnot send troops into the DRC in
August 1998 ...................................6.........
(5) Uganda did not participate in the formation
of the RCD ...................................6.........
E. The DRC's FailureTo Establish A MotiveFor
Uganda's MilitaryPresence InThe DRC Other
Than Self-Defence ................................................
F. The DRC's FailureTo DemonstrateThe
ImproprietyOf Uganda's Limited Relationships
With CongoleseRebel Organisations .................80....
(1) Limitationsas to time ..................................
(2) Limitationsas to purpose .................................
(3) The status of the Congolese rebel
organisationsunderthe Lusaka Agreement ...89G . The Effects Of The Lusaka Agreement On The
DRC's Claims Against Uganda ......................9......
(1) Uganda's responsesto the DRC's arguments ..92
(2) Recent developments in fulfillment of the
Lusaka peace process .......................1.0....
CHAPTERIII: REAFFIRMATIONOFTHE
LEGAL ARGUMENTS .................04..
A . The Assertion Of The DRC That There Was No
Aggressioa On The Facts For Which SheWas
Responsible ........................................104...........
(1) May 1997-April 1998 .......................112..........
(2) May 1998-July 1998 .........................12.....
(4) October 1998-June 2000 ....................1.....
B . The Conditions Necessary For The Legal
Justification Of Self-Defence.......................115...........
(1) The definition ofarmed attack ...............11..
(2) The question of proportionality..............11..
(a) The officia1justification put forward
by the Ugandan authorities .............0
(b) The alleged absence of protest.
notice or prior ultimatum...............3
(c) The alleged extent of Uganda's
"occupation" ...............................
(d) The alleged duration of Uganda's
"occupation" ........................125........... (e) The modalitiesof Uganda'smilitary
action ...............................1.5.......
(f) The relevanceof the Security
Council Resolutions ..................26..
C. The IssueOf The Consent Of The DRC ...............7
(1) The assertion that Uganda cannot invoke the
rules which governthe responsibilityof
States ....................................................
The Protocolof 27 April 1998 .................7.
(2)
The question whether therewas an invitation 128
(3)
The assertion that theDRC has not givenits
(4)
informa1consent ...............................8.....
(5) The significanceof the Lusaka Agreement ...129
CHAPTERIV: RESPONSETO THE
ALLEGATIONSOF ILLEGAL
EXPLOITATION OF NATURAL
RESOURCES ...........................3......
A. The UnitedNations Panel Reports Were Designed
To Provide A Foundation For A Political Solution,
Not To Establish Culpability..........................40.....
B. The United NationsPanel Reports, And Particularly
The First ReportOn Which The DRC'sCase Rests,
Have Been Universally Discredited ....................3..
(1) The DRC herself admits that the UN Panel
Reports are notcredible ........................3..
(2) The inadequacyof the First UN Panel
Report was admitted in a subsequentUN
Panel Report ...................................7....... (3) A host of nations have criticisedthe UN
Panel Reports. ...............................1..8.......
(a) The First UN Panel Report ............4.8
(b) The SecondUN Panel Report ........151
(c) The Third UN Panel Report ..........55
(4) The UN Panel Reports do not meet the UN'S
own standards ..................................5.......
C. The Inherent Defects Of The United Nations Panel
Reports Undermine TheAllegations Against
Uganda.. ..............................................68...........
The allegationsagainst Uganda are not
(1) supportedby credibleevidence ................6.
The UN Panels have refused to provide
(2)
supportingevidence to Uganda ..................
(3) The UN Panels failedto interviewkey
witnesses and to review critical documents ...171
(4) The DARA-Forest "Case Study"
exemplifiesthe lack of credibility of the
First UN Panel Report ........................173.........
(5) Allegations about the "Victoria Group" and
"Trinity Company" arecontradicted by
public information ...........................178............
D. The Nature Of Uganda's InterventionInThe Congo
Was InconsistentWith Exploitation, As The United
Nations Has ImplicitlyRecognised ............................
The limited nature of Uganda's intervention
(1) is inconsistent with exploitation.....................
The UN and DRC positions are inconsistent
(2)
with exploitation by Uganda ..................83.. (3) The DRC's other sources support Uganda's
position ......................................8..........
E. The First United Nations PanelReport,On Which
The DRC's Case Rests, InaccuratelyConstruesThe
Context Of Uganda's Intervention In TheCongo ....185
(1) Ugandanforces did not fight in the so-called
First CongoWar in 1996-97. .................185......
(2) Uganda didnot finance the war through
exploitationof the DRC .....................18....
The UN Panel overestimatedthe cost
(a) of the war...........................1..9...
(b) The war was fundedfrom Uganda's
defencebudget .............................
(3) Uganda didnot collect taxes from the transit
and re-export of "exploited" resources .......194
F. Trade Between Uganda AndEastern Congo1s
Benign And Legitimate .............................1........
(1) Tradebetween easternCongo and Uganda
has occurred sincetime immemorialand
cannot be described as "illegalexploitation". 198
(2) The trade which theDRC attacks was
essential to the survivalof the populationof
easternCongo ...............................2.5......
(3) Trade in eastern Congowas licencedby the
DRC Governmentand by the competent
authorities...................................2..........
G. The SpecificAllegations Against UgandaAre
Contradicted BySworn TestimonyAnd
Documentary Evidence ................................6.... (1) So-calledinstances of "unlawful
appropriations" by"Ugandan troops" are
demonstrablyfalse .........................2 17.........
(2) The DRC persistentlyrelies on unsupported
hearsay and inaccuratelycites her
.......................................
supportingsources.. 2 19
(3) The DRC's allegations about air flights are
either unsupported or are demonstrably
wrong ..............................................................
(4) The "economic data" on whichthe DRC
reliesproves nothing .........................2.....
(5) Allegations of Uganda's purported "control"
of business in eastern Congo prove nothing,
other than the fact that Uganda didnot
6loot that area...............................2.......
Allegations of trade in protectedanimal
(6) speciesare without merit .....................3....
H. There 1sNo Evidence That Uganda FailedTo Act
Against Illegal Activity..............................36.......
1. The DRC Fails To ResuscitateThe First United
Nations Panel ReportAnd To lmpugnThe Porter
Commission .........................................3...........
J. The DRC Fails To UnderstandThe Governing Law .24 1
CHAPTERV: RESPONSETO THE
ALLEGATIONSOF HUMAN
RIGHTS VIOLATIONS ...............245......
A. The DRC ProceedsFrom The ErroneousPremise
That Uganda Was An OccupyingState And Fails
To SatisfyHer Burden Of Proof ......................45...
...........
(1) Uganda was not an "occupying State" 245 (2) The DRC has not mether burdenof proof.....246
B. The Difficulty Of Distinguishing AmongVarious
Armies And Belligerents ...................................
C. The VariousAllegations Against Uganda Are
Unsupported AndFalse ................................7.....
(1) Claimsthat Ugandanforcesdeliberately
killed civilians..............................2..7....
(2) Claimsthat Ugandan forces didnot take
measures to protectcivilians in combat
operations ...................................2.........
Claimsthat Ugandanforces fueledethnic
(3)
conflictsbetween Congolesetribes ..........2..4
(4) Claimsthat Ugandan forces destroyed
villages and homesteads. ....................2......
(5) Claimsthat Ugandanforces used torture and
other formsof inhumanetreatment ..........268...
(6) Claimsthat Ugandan forces recruitedchild
soldiers.........................................1........
(7) Claimsthat Ugandanforcesterrorised
Congolese civilians .........................2..4.....
(8) Claims that Ugandanforces looted and
destroyedprivate property. ..................2..5...
(9) Claims of a Ugandan "policyof terror" .........
D. The United Nations AndThe DRC HerselfHave
Recognised And Affirmed Uganda'sPeacekeeping
Role ................................................2.........
...
E. ResponseTo The DRC's Legal Arguments. .........2.82CHAPTERVI: REAFFIRMATIONOFTHE
VALIDITYOFUGANDA'S
COUNTER-CLAIMS ..................2.....
A. The First Counter-Claim: The DRC's
Responsibility for Acts CornrnittedBy Armed
Groups Sponsored Or ToleratedBy Successive
CongoleseGovernments ............................2........
(1) Introduction ................................284.................
(2) The procedural issues raised by theDRC ....2.84
(3) The argument that the claimsrelatingto the
period prior to President Kabila's
achievementof power in April 1997are
inadmissible ................................2.........
(a) In law, Uganda never waived its
claim againstZaire ..................285.......
In fact, Uganda never waived its
(b) claim against Zaire...................90...
(4) Uganda's counter-claimconcerningZaire's
wrongful use of force against Ugandais
fully supported by the evidence ..................
(a) Uganda-Zairerelationswere never
cordial...............................99.......
(b) Zaire was considereda source of
regional instabilit...................0....
(c) The evidence shows that Zaire was
involved in armedattacks against
Uganda ..............................0....... (5) The evidence supports Uganda's counter-
claims concerning theperiod fromMay
1997through the 2 August 1998rebellion
by Congolese army units against President
Kabila ........................................06.........
(a) Relations betweenUganda and the
DRCdeterioratedin 1998 ............0.6
(b) The evidence supports Uganda's
counter-claimthat the DRC aided
anti-Uganda forcesbefore2 August
1998 .................................0.7......
(c) The evidence supports Uganda's
claim that the Congolese authorities
were involvedin particular attacks
against Uganda ........................8...
The evidence supports Uganda's counter-
(6) claimscoveringthe period after2 August
1998. .........................................09..........
(a) The law .............................30.......
(b) Thefacts ............................309.............
B. The Second Counter-Claim: The DRC's
Responsibilityfor the Attack On The Ugandan
Embassy, AndThe InhumaneTreatmentOf
UgandanDiplomatic Personnel And OtherUgandan
Nationals............................................31...........
(1) First basisof claim: Article22 of the
Vienna Conventionon Diplomatic
Relations (inviolabilityof the premisesof
the Mission) ..................................12....... (2) Second basis of claim: Article29 of the
Vienna Conventionon Diplomatic Relations
(inviolabilityof theerson of diplomatic
agents) ...................................3 16...................
(3) Third basis of claim: Article 30 of the
Vienna Conventionon Diplomatic Relations
(inviolabilityof the private residence of a
diplomatic agent)...........................32 1............
(4) Fourth basis of claim: Article 24 of the
Vienna Conventionon Diplomatic Relations
(inviolabilityof archives and documents of
the Mission)..................................22.......
Fifth basis of claim: breaches of the
(5) internationalminimum standardrelating to
the treatment of foreign nationals lawfully
on State territory...........................322.............
(6) Sixthbasis of claim: the unlawful
expropriation of the public property of
Ugandaby the DRC Government. ...........33.1
SUBMISSIONS ............................................3.............
PERSONALIAAND ABBREVIATIONS ................3....
INDEXOFANNEXES ....................................4........... INTRODUCTION
1. This Rejoinder is being filed pursuant to the Order made
by the Court on '7November 2002 fixing 6 December 2002 as
the time-limit for the filing of the Rejoinder of the Republic of
Uganda.
2. At the outset, Uganda is pleased to inform the Courtthat
on 6 September Li002,Uganda and the Democratic Republic of
the Congo ("DRC") successfully concluded a comprehensive
peace agreementitoend the conflict between the two States.
3. Executed in Luanda, Angola by the Presidents of
Uganda and the DRC, the agreement recognisesthe seriousness
and continuing nature of the threats to Uganda's security
highlighted in the Counter-Mernorial, and includes specific
commitments by the DRC to address those threats. In
particular, the DFtCcornrnittedherself "to refrain from al1types
of military and logistical support including the provision of
bases and sanctuary to the armed groups" that havecarried out
armed attacks in and against Uganda from Congolese territory
since 1994. (Rejoinder ("UR") Annex 84, Art. 2, para. 2.) The
DRC further agreed that "Ugandan troops shall remain on the
slopes of Mt. Ruwenzori until the Parties put in place security
mechanisms guaranteeing Uganda's security, including training
and coordinated patrol of the common border." (Ibid., Art. 1,
para. 4.)
4. For her part,Uganda agreed at Luanda to withdrawfrom
the DRC al1Ugandan troops, except those expressly authorised
by the DRC to remain "on the slopes of Mount Ruwenzori."
Since the agreement was reached, Ugandahas in fact fulfilled
her obligations t'hereunderand withdrawn her troops from the
DRC. The only remaining Ugandan troops are those expressly
authorised to remain under the Luanda Agreement "until the
Parties put in place mechanisms guaranteeing Uganda's
security."
5. With the DRC's express commitment to address
Uganda's security concerns seriously and in coordination with
Uganda, and witlithe consequent withdrawalof Ugandantroopsfrom the DRC, thisRejoinder is being submitted amidst vastly
improved diplomaticrelations betweenUganda andthe DRC.
6. Uganda is also pleased to note that, in addition to an
improvementin bilateral relations, significant progress has been
made in bringingan end to the interna1conflict in the DRC. As
contemplated by the Lusaka Agreement ofJuly 1999, the DRC
Government and three Congolese rebel organisations have
recently participated in an "open national dialogue," and
reached an agreement in principle on a "new political
dispensation" for the Congo. Under the current formula, the
present Congolese Government and the rebels wouldshare
power in a provisional government that would holdoffice until
the convening of national elections. The leaders of the three
rebel organisations would each become a Vice President in the
provisional government; current DRC President Joseph Kabila
wouldcontinue in his officeuntil elections areheld.
7. As a result of these positive developments between
Uganda and the DRC, andbetween the DRC Government and
Congolese rebel organisations, there is far greater cause for
optimism on al1fronts now than at the time Uganda submitted
her Counter-Mernorial in April 2001, or when the DRC
submitted her Reply on 29 May 2002. Indeed, the current
environment allows Uganda to look forward to a peaceful
resolution of the conflict in the DRC, to the maintenance of
security along the common border, and to a new and
constructive working relationship with the Governmentof the
DRC, in full expectation that the recent warmingof relations
between thetwo States will prove permanent.
8. Nonetheless, for the time being at least, the DRC
continues to pursue her claims against Uganda in the Court.
Uganda thus has no option but to respond in fullto the DRC's
Reply.
9. Before addressing the numerous factual and legalerrors
and omissions that plague the Reply, Uganda wishes to cal1the
Court's attention to three fundamental flaws that infect the
DRC's latest pleading frombeginningto end.10. First, whereas the DRC'sMentorialwas some 148pages
of text (excluding Annexes), her Reply spans a full 400 pages.
Her second submission is thus more than 250% as long as her
first, and is expressly intended not as a supplement to her
Memorial, but as a replacement for it. At paragraph 2.05 of the
Reply,the DRC states: "Dansces circonstances,ilfaut préciser
que c'est évideminentla présente réplique (et non le mémoire,
et a fortiori larequêteq )ui constitue désormais1'instrumentde
référence en cq eui concerne 1'exposédela versiondesfaits qui
est défenduepar la RDC dans le cadre de cette instance."'
Thus, the DRC purports to discard both her Memorial and her
Application,and to restate her case ab initio.
Il. Whether or not this constitutes a technical violation of
Article 49, paragiraph3 of the Rules of Court is, of course, for
the Court to decide. At the very least, however, the DRC has
clearly violated t:hespirit of the Rule, which states that replies
shall be limited tio"bringing out the issues that stilldivide [the
parties]." For herpart, Uganda will confine this Rejoinder to
genuinely addressing only the issues that authentically still
divide the Parties.
12. Second, liikethe DRC's Memorial, her Reply relies for
its "facts" almost exclusively on third-hand reports from
newspaper and magazine articles, rather than officia1
statements, contemporaneous documentsor first-hand accounts
by participants or-eyewitnesses. Rarely, ifever, are the original
sources of any of the excerpted statements from the DRC7s
multitude of pericsdicalarticles identified. There is thus no way
for the Court to assess their objectivity or reliability. To the
contrary, as furthierdiscussed in Chapter 1of this Rejoinder, in
most cases the reports themselves make clear that they are
based on nothing more than multiple hearsay, opinion, rumor or
1 "In these circumstances, we must state that it is evidently Replyresent
(and not thMemorial, and afortiortheApplication)that constitutes from
now on the documerit of reference as far as the presentation of facts by the
DRC in the framework of this case is concerned."
(Except where otherwise noted,1English translations included in this
Rejoinderare unofficial translations only. At the tRejoinderwas
prepared, the Court'sficial translation oReply was not yet available.)gossip. While theCourt has previouslyruled that such materials
may be admissible for certain purposes, the DRC's reliance on
periodical articles, books by journalists and reports by partisan
non-governmental organisations to establish each and every
component of her case stresses the Court's evidentiary
flexibilityto the breakingpoint.
13. In contrast, this Rejoinder, like the Counter-Memorial,
is based primarily on first-hand evidence from direct
participants and other eyewitnesses, much of it taken from
sworn testimony offered in open court and subject to cross-
examination, together with original source documentation and
officia1 statements. Uganda's evidence, unlikethe DRC's,
meets the standardsthat must prevail in a court of law.
14. Third, the Reply suffers from an incurable tendency to
conflate Rwanda and Uganda, and to impute automatically al1
actions taken (or allegedly taken) by the former State to the
latter, as if the two States were a single entity. Thus, there are
innumerable references throughout the Reply to the alleged
actions of "Rwanda andUganda" when,in fact, the underlying
evidence shows that the actions were taken only by Rwanda, if
at all. This is not an innocent case of mistaken identity, but a
deliberate tactical ploy by the authors of the Reply to mask the
fact that they have no proof to support their allegations against
Uganda. Simultaneously,it is an admissionthat unlessthey can
show Uganda's "guilt by association" withRwanda, they have
no case.
15. In fact, they have no case. Rwanda and Uganda are
distinct States that have divergent interests in the DRC, and
whose policies toward the DRChave conflicted more oftenthan
theyhave coincided. Whereas Rwandaled the 1996-97warthat
ousted former Congolese President MobutuSsese Seko and
installed LaurentKabilaas Presidentof the DRC, Ugandachose
not to commit troops. Whereas Rwanda established and
controlled the Congolese Armyunder President Kabila, Uganda
had no such involvement. Whereas Rwanda sent her troops into
the DRC in August 1998in supportof Congolese rebels seeking
to overthrow President Kabila, Uganda did not. Whereas
Rwanda fought al1the way across the DRC in order to seizeKinshasa and bri.ng about "regime change," this was never
Uganda's objective. Rather, Uganda's sole objective in the
DRC is and always has been herown self-defence. To this end,
Uganda sent her itroopsinto the DRC only to drive out hostile
forces, especially troops from Sudan, which Iiad occupied
airfields and other strategic locations in eastern and northeastern
Congo, and were preparing to attack Uganda both directly and
through stepped-uipsupportfor anti-Ugandainsurgents.
16. Thus, whiitever the merits of the DRC's case against
Rwanda, there are none against Uganda, whose limited
interventionin the DRC was motivated solelyby a grievous and
imminent threatto her security, andby herresulting necessity to
act in self-defenci:.
17. The most. remarkable feature of the Reply is that,
beneath al1the sloundand fury of its rhetorical tirade against
Uganda, it actually admits al1of the facts necessaryto support
Uganda's contention that her military intervention in the DRC
was a lawful exercise of her right to self-defence. As shownin
Chapter II of this Rejoinder, the DRC has now admitted, either
expressly or by failure to deny: (i) that anti-Uganda insurgent
groups based in e:asternCongo carried out armed attacks in and
against Uganda continuously since 1994, that the problem
"exploded" in 1997,and that by 1998it became a serious threat
to Uganda's seccirity;(ii) that between May and August 1998,
President Kabila of the DRC formed a military alliancewith the
anti-Uganda insurgents and with Sudan, which, at the time the
alliance was made, was already the author of an aggressive war
against Uganda (with whom Sudan shares a long common
border); and (iii)that pursuant to this alliance, the DRC allowed
Sudan to send thousands of its own troops into Congo, to
occupy strategic locations and airfields in eastern and
northeastern Congo within striking distance of Uganda, to step
up rnilitary and logistical support for the anti-Uganda
insurgents, and ito attack Ugandan forces along the Uganda-
DRCborder. None of these facts are now in dispute.
18. Furthermore, the Reply makesclear that the DRC herself
consistently and repeatedly acknowledged the gravity of
Uganda's security concerns. As adrnitted in the Reply(as wellas in the Mernorial), because of the security threat posed by
anti-Uganda insurgents, the DRC Government authorised
Uganda to station three battalionsof her own troops in eastern
Congo beginning in 1997. While the DRC now claims that her
authorisation was revoked in August 1998,she adrnits that by
then the security threat to Uganda from these insurgents was
greater thanever.
19. The DRC again recognised that the insurgents posed a
seriousthreat to Uganda in the Lusaka Agreementof July 1999.
In that Agreement, the DRC agreed that the anti-Uganda
insurgents in her territory would be disarmed, demobilised,
repatriated and rehabilitated before Ugandan troops would be
withdrawn. And,as indicated above, as recently as the Luanda
Agreementon 6 September2002, the DRC again acknowledged
the legitimacy and the seriousness of Uganda's security
concerns, pledged once again to refrain from allowing anti-
Uganda insurgents tomaintainbases in Congoleseterritory, and
agreedto allow Ugandan troops toremain in the DRC "until the
Parties put in place mechanisms guaranteeing Uganda's
security..."
20. Thus, the Reply does not challenge Uganda's showing
that, as of mid-September 1998,the security threatposed by the
presence in eastern Congo of hostile Sudanese forces and anti-
Uganda insurgents, in both cases allied to the DRC
Government, was sufficiently severe and imminent to warrant
Uganda's exercise of herinherent rightof self-defence. Rather,
the main thrust of the Reply is to accuse Uganda of launching
her military intervention in the DRC not in mid-September
1998 as Uganda contends, but nt the beginning of August,
allegedly before the conditions existed to justify such action as
lawful self-defence. This case boils down, therefore, to a
dispute over timing: When did Uganda send her troops intothe
DRC?
2 1. As demonstrated in the Counter-Mernorial and as
reaffirmed in Chapter II of this Rejoinder,Uganda's decisionto
send troops into theDRC to confront the threat posed bySudan
and the anti-Uganda insurgents was made on 11 September
1998,and was first implemented between 16and 20 September.Al1 of the evidence confirms this. In the Reply, the DRC
concocts a series of allegations that Ugandan troops "invaded"
the DRC a monthiearlier, before the Sudanese threat had fully
materialised, in a strained effort to show that Uganda was an
"aggressor" instealdof a victim acting in self-defence. Thus, the
Reply accuses Uganda of participating in attacks on Kitona and
Kindu in early Ailgust, and in an attempted coup d'etat against
President Kabila. However, as demonstrated at length in
Chapter II below, at best the evidence shows only that Rwanda
carried out these .actions,in collaboration with Congolese rebel
forces. There is inocredible evidence that Uganda participated
in any of these evlents. In fact, she did not.
22. Unable to show that Uganda intervened militarily in the
DRC before mid-September 1998,the Replythus fails to defeat
Uganda's claim of self-defence. Chapter III of this Rejoinder
demonstrates thiit Uganda has fully satisfied the legal
requirements to invoke her inherent right to self-defence as a
justification for lner intervention into the DRC. The DRC's
argumentsto the contrary are unavailing.
23. The DRC's hypothesis that Uganda was somehow
motivated to intervene in the DRC by an alleged desire to
exploit her natural riches is likewise belied by the evidence.
Contrary to the DRC's repeated assertions, Ugandan forces did
not participate iin the Rwanda-led war to overthrow former
President Mobutu. Consequently, there could have been no
desire to "return" to take advantage of the DRC's purported
riches, as the Reply suggests. To the contrary, Uganda's sole
purpose in sendiingher forces into the DRC was to defend
herself against serious threats to her security posed by Sudan
and the other hostile forces aligned againsther.
24. Moreover, as fully set forth in Chapter IV of this
Rejoinder, the evidence shows that Ugandan forces did not
engage in the illegal exploitation of resources in the DRC.
Ugandan troops were at al1times under strict orders from the
highest governmental and military authorities to refrain from al1
business or cominercial activities whjle in the DRC, and these
orders were enfoircedand obeyed.25. The DRC's contrary case relies almost entirely on a
now-discreditedreport by a panel of "experts" whose credibility
has been challenged by many States, including, ironically,the
DRC herself. Among other deficiencies discussed in Chapter
IV, the so-called experts refused to identify the sources of the
"evidence" on which their findings were purportedly based,
refused toconfront accused governmentsor individualswith the
"evidence" against them or otherwise to givethem a chance to
defend themselves or explain their actions, and failed to
interview knowledgeable witnesses or review relevant
documents that might have contradictedtheir conclusions. For
these and other reasons, the report fallsso far short of the legal
standards for imputing responsibility to a State that it cannot
possibly support the DRC's "illegal exploitation" allegations
against Uganda.
26. Equally unsupportable are the DRC7s claims that
Ugandan forces systematically violated the human rights of
Congolesenationals. As shown in Chapter V of this Rejoinder,
the DRC's argument proceeds from the faulty premisethat
Uganda maintained a military "occupation" of Congolese
territory, and is therefore "responsible" for human rights abuses
committed therein without the necessity of further proof as to
the identities of the actual perpetrators. This, of course, is
nothing but an artful attempt to excuse the DRC's inability to
demonstrate direct responsibility for specific abuses that might
(or might not) have occurred. In any event, the attempt fails
because, inter alia, Uganda never "occupied" any Congolese
territory. Her relatively small contingent of troops was
dispersed across an area roughly the size of Germany, and
concentrated almost exclusivelyin the border region and in a
few key towns and strategic locations, especially airfields.
Moreover, Ugandan troopsnever sought to administer theareas
in which they operated; local administration in al1cases was
performed by existing Congolese municipal authorities,or by
the Congolese rebel organisation that controlled the particular
area. The DRC's occasional efforts to attach direct
responsibility to Ugandan troops for specific human rights
abuses fail because, as shown in Chapter V, there is no first-
hand or credibl'eevidence in any of these cases on which to
impute liabilitytoUganda.27. Thus, the only valid claims beforethe Court are theones
brought by Uganclaas counter-claims against the DRC. With
respect to those, the evidence presented in the Counter-
Memorial, which Uganda supplements in Chapter VI of this
Rejoinder, shows conclusively: (1) that the DRC bears
international legai1responsibility for cross-border attacks by
anti-Uganda insurgents operating from Congolese territorythat
Uganda has been forced to endure since 1994; and (2) that the
DRC is equalljr responsible for the Congolese Army's
unprecedented assault on and seizure of the Ugandan Embassy
in Kinshasa, as well as its uncivilised attacks on Ugandan
diplomats and nationals, who were beaten and humiliated, and
had their propecy stolen, by agents of the DRC Government.
As shown in Chapter VI, the DRC's legal andfactual arguments
directed at undexmining these claims are entirely without
substance.
28. In sum, the DRC has failed to show that Uganda's
military intervention in the DRC was anything other than
Uganda's exerciseof its inherent rightto self-defence against
grievous and imniinent threats to her securit-- threats that the
DRC herself has acknowledged on repeated occasions. Nor has
the DRC met her burden of proving that the conduct of
Ugandan forces in the DRC fell short of any international
norms. Al1of these allegations are refuted by an objective and
impartial analysis of the facts, as demonstrated in theounter-
Memorial and i-eaffirmed in this Rejoinder. Indeed, the
evidence shows that the only State that has been a victim of
aggression is Ugianda,and the State that is responsible for that
aggression is the DRC. Accordingly, as fully demonstratedin
Chapters 1through VI herein, the DRC's claims against Uganda
should be rejected, and Uganda's counter-claims should be
sustained. CHAPTER1
THEPERSISTENT ANOMALIES INTHEREPLY
CONCERNING MATTERS OF
PROCEDURE AND EVIDENCE
29. In Chapter 1of the Reply,the DRC raises a wide range
of issues which are, in principle at least, part of a response to
the questions of evidence and procedure examined in the
Counter-Mernorial, The DRC insists on rehearsing material
which will be of little or no assistance to the Court, but a
process of rebuttal is nonetheless called for. The issues
presented in Chapte1 of the Reply will be considered one by
one.
A. The ContinuinrrConfusionRelatinpTo
Liabilitv(Merits)And Ouantum
(Compensation)
30. The Government of Uganda is saddened to note that the
legal confusion redolent of the Mernorial of the DRC persists.
As Uganda pointed out in the Counter-Mernorial, there is a
fundamental confusion in the Memorial between the proof of
violations of legal obligations and the issue of quantum of
damage (or compensation). (Counter-Memorial ("UCM"),
paras. 170-83.) Unfortunately, thisconfusion still persists.
(Reply ("DRCR"),paras. 1.02-1.03, 1.06-1.14.)
31. Uganda has nointerest in maintainingthis unproductive
exchange, but it is necessary to affirm that the confusion
persists. Thus, it is not true, as the DRC alleges, that Uganda
insists that al1the consequent damage has to be proved at the
liability stage of the proceedings. (DRCR, para. 1.09.)
Moreover, nothing in the Nicaragua case indicates otherwise.
The basic point is that, at the phase relating to reparation, the
process of reparation must be confined to violations of
obligationswhich form part of the resjudicata. (I.C.J. Reports,
1986, p. 142, para. 284, quoted in Rosenne, Law and
Procedure, Vol. III, pp. 1246-47; cJ: DRCR, para. 1.10.)
Moreover, the DRC appears to believe that issuesof causationcan be left over to the compensation phase, which is plainly
wrong. (DRCR,paras. 1.11-1.12.)
32. In the sarne section of the Reply, there is a curious
assertion to the effect that it is not necessary for the DRC to
prove the specificities of the alleged violations. (DRCR, paras.
1.15-1.21.) The exposition is difficult to follow and Uganda
reserves her position. However, the assertion appears to form
part of a recrudescence of the procedural confusions upon
which the Mernorial was based. Central to these confusions
was the failure to understand the relationship between the proof
of violations of legal obligations and the separate task of
establishing the quantum of damage. (UCM, paras. 118-22,
170-83.) In this general context, Uganda does not consider that
the decision of the Court in the Nicarag~itr case (Merits)
provides any assi:stanceto the DRC. (DRCR, para. 1.19.) This
response would be justified even if the DRC had done more
than simply refer to a paragraph in the Dispositif as the entire
basis of the argument.
B. UrrandaReaffirmsHer PositionThat The
CourtLacks Com~etenceToDeal With The
EventsIn Kisangani In June2000
-
33. This question of competence was examined in some
detail in the Cuunter-Mernorial, in Chapter XV. (UCM, paras.
264-87.) The DRC now seeks to challenge the conclusions
presented in the tzuunter-Mernorial. (DRCR, paras. 1.23-1.31.)
This challenge is based uponsome very weak reasoning.
34. First, the DRC asserts that, apart from this argument
relating to Rwanda, Uganda has not otherwise challenged the
jurisdiction of th.eCourt. That is so; at the appropriate stage
Uganda decided not to present any preliminary objections.
(DRCR, para. 1.25.) Nothing follows from this; the
proceedingsare, of course, now at the MeritsPhase.
35. Second, tlheDRC asserts that the issue has been raised in
earlier pleadings. This assertiondoes not cal1for a response.36. Third, the DRC relies on the Order on Interim Measures
dated 1 July 2000. But, in accordance with the usual practice,
the Courtstated that:
Whereas a decision in the present
proceedings in no way prejudges the
question of the jurisdiction of the Court to
deal with the merits of the case, or any
questions relating to the merits themselves,
and leaves unaffected the right of the
Governments of the Congo and of Uganda
to submit arguments in respect of those
questions ...
(Order,para. 46.)
37. Finally, the DRC seeks to distinguish the availablecase
law on the facts. In this respect Ugandamaintains the analysis
of the jurisprudence presented in Chapter XV of the Counter-
Memorial. (UCM, paras. 2.72-2.78.)
38. The DRC relies, in particular, on the decision of the
Court in the case of Certain Phosphate Lands in Nauru. (ICJ
Reports 1992, pp. 261-62, para. 55.) On the facts of that case,
the Court could decide on Nauru's' claimsagainst Australia in
the absence of the United Kingdom and New Zealand, and
without their responsibility beingdetermined. In relation to the
conflict in Kisangani, it would be legally impossible to
determine the responsibilityof one of the factors in the absence
of the other actor. In any event, the Nauru decision was
concerned withjurisdiction. As theCourt observed:
The Court must howeveremphasise that its
ruling in the present Judgment on this
objection of Australia does not in any way
prejudge the merits. The present Judgment
does not settle the question whether
reparation would bedue from Australia, if
found responsible,for the whole or only for
part of the damage Nauru alleges it has
suffered, regard being had to the characiteristics of the Mandate and
Trusteeship Systems outlined above and, in
particular, the special role played by
Australia in the administration of the
Territory. These questions are to be dealt
with ai:the merits stage.
(I.C.J. Reports, 1992,p. 262, para. 56.)
C. The Court's Finding OnThe ThirdCounter-
Claim
39. The DRC relies upon the passage of the Interim
Measures Order of 12 December 2001 in which the Court
refuses to accept the third Counter-Claim of Uganda in order to
assertthat:
L'Ouganda ne saurait par conséquent
justifier son action militaire en invoquant
certaines dispositions des accords de
Lusaka, tout comme d'ailleurs, dans un
autre context, la RDC (ou une autre partie)
ne saurait justifier un éventuel non respect
de ces accords en invoquant la
responsabilitéde telle autre partie dans le
déclefilchernendtu conflit. L'ordonnance de
la Cour confirme bien que les accords de
paix visent spécifiquement les modes &
--solution & conflit, mais n'ont
certainementpas pour objet de se prononcer
sur la responsabilitéde telle ou telle autre
partie dans déclenchement ou dans la
poursuite du c~nflit.~
- - - -
"Consequently, Ugandacannotjustify itsmilitary action by invoking
certain provisionsof the Lusaka Agreement,as indeed,in another context,
the DRC (or another party) cannotjustify a subsequentfailure to respect this
agreementby invoking the responsibilityof another party forsparking off
the conflict. The Court's ruling confirmsthatthe peace agreement
specificallydeals withsof resolvingthe conflict,and certainlydo not
aim to establish the iresponsibilityof such orsuch a party in sparking offthe
corzflictor ifs respofilsibilityin the courseof"the conflict.(DRCR,para. 1.41 ;emphasis in original.)
40. The relevant passages from the Order of the Court reads
as follows:
42. Whereas, in respect of Uganda's third
counter-claim (alleged violations by the
Congo of the LusakaAgreement), it is to be
observed from the Parties' submissions that
Uganda's claim concerns quite specific
facts; whereas that claim refers to the
Congolese national dialogue, to the
deployment of the United Nations
Organization Mission in the Democratic
Republicof the Congo (MONUC)and to the
disarmament and demobilization of armed
groups; whereas these questions, which
relate to methods of solving the conflict in
the region agreed at multilateral level in a
ceasefire accord having received the "strong
support" of the United Nations Security
Council (resolutions 1291 (2000) and 1304
(2000)), concern facts of a different nature
from those relied on in the Congo's claims,
which relate to acts for which Uganda was
allegedly responsible during that conjlict;
whereas theParties' respectiveclaimsdo not
therefore form part of the same factual
complex; and whereas the Congo seeks to
establish Uganda's responsibility based on
the violation of the rules mentioned in
paragraph 38 above, whilst Ugandaseeks to
establish the Congo's responsibility based
on the violationof specific provisions of the
Lusaka Agreement; whereas the Partiesare
thus not pursuing thesamelegal aims;
43. Whereas the Court considers that the
third counter-claim submitted by Uganda is
therefore not directly connected with the
subject-matterof the Congo'sclaims; ...(Order, paras. 42-43.)
41. These passages are concerned with the applicationof the
criteria set forth in Article 80 of the Rules of Court, this being
the exclusive focils of the inquiry, as paragraphs 35 and 36 of
the Order indicate. The Court is applying the criterion of
"direct connectiori" and thiss clear also from the conclusion in
paragraph 43.
42. These passages provide no basis whatsoever for the
suppositionsgenerated by the DRC. The Court is not seekingto
suggest that the Lusaka Agreement has no legal relevance in
these proceedings. What the Court does is to demonstrate that
"the Parties are th.usnot pursuing the same legal aims."
D. TheAlle~edAdmissionsBvUganda
43. In a section of Chapter 1 of the Reply, the DRC
rehearses a number of so-called admissions by Uganda, and, in
this context, suggests that various divergences still exist on the
facts. (DRCR,paras. 1.44-1.67.) The material offered involves
highly convolutetl arguments based, to a great extent, upon the
abbreviated proceedings on the Request for Interim Measures.
The Government. of Uganda does not see much value in a
detailed examination of such materials. There is, in any case, a
great deal of generality and repetition.
44. As on ot'heroccasions, the DRC invokes the Court's
Order relating to interim measures, but fails to understand the
character of such proceedings. Presumably for this reason, the
DRC avoids reference to the non-prejudice paragraph in the
Court's Order. (SeeOrder, para. 46.)
E. TheAppropriateStandardOf Proof
45. The contents of the largest section of Chapter 1 of the
Reply are devote:dto a response to Chapters VI1 and VI11of
Uganda's Coun,fer-Mernorial. In those chapters, Uganda
pointed to the sczriousinadequacies of the evidential material
offered in the Memorial. The DRC now assures the Court that
no lessons have loeenlearnt in this respect. In the words of the
Reply : Le langage tenupar lapartie ougandaise est
pour le moins excessif au regard de la
quantité des sources présentéespar le
Congo à l'appui de sa demande. La RCD a
d'ailleurs, dans l'ensemble, suivi la même
méthodologieet utilisé lesmêmes moyens de
preuve dans le cadre de la présente réplique
et, par conséquent, il est dès lors
particulièrement importantde répondreaux
prétentions ougandaises surce point. La
RCD montrera donc que les objections
formuléespar I'Ougandu à l'encontre de la
méthodologiesuivie par la RDC en matière
depreuve sontdépourvuesdefondement (I),
et que les catégories de preuves qu'elle
produit répondentaux exigences applicables
dans ce domaine (2)."
(DRCR,para. 1.69;emphasis added.)
46. In these circumstances the Respondent State faces the
necessity of a certain degree of reaffirmation of positions
already adopted,given thatthe views expressed in the Counter-
Memorial have not been effectively challengedin the Reply. In
particular, the DRC has maintained its inability to prove
imputabilityat the appropriate standard. In any event, Uganda's
responsewill be reasonably succinct.
47.
At the outset, the DRC does at least make some candid
admissions, including thefollowing:
Les documents présentéspar la RDC sont
pertinents, mêmelorsqu'ilsn'établissentpas
"'The language used by Uganda is tosay the least excessive in view of the
quantity and quality of the sources presented by Congo to support its claim.
TheDRCgenerallyusedthesarnemethods ofyresentingevidenceinthe
preserltRepland, consequently, it is particularly important to respond to
Uganda's allegations on this pointDRChewill therefore show that the
objections madby Uganda against the method used byDRCeto present
evidence lackasis (I), and the cateofrevidence it presented meet the
requirements that are applicable in t(2)."rea expres,rément1'imputabilitédecertainsfaits
à l'Ouganda, ou ne concluent pas à la
responsabilitéde cet ~tat.~
(Heading before IIRCR, para. 1.71.)
Il est vrai que la plupart des documents
présentés parle Congo ne concluent pas
expressément à l'engagement de la
res~on:sabilitéde l'Ouganda. Mais cette
circon,stancen'est nullement de nature à en
affecter la pertinence. Il va de soi que, au
stade de l'établissement des faits, ce qui
importe est de prouver la matérialitéde
certains événementse ,t non de se prononcer
sur leur juridique.'
(Ibid.,para. 1.73;emphasis added.)
Il est vrai égalementque, comme y insiste
lourdement la partie défenderesse, une série
de doc:umentsprésentéspar le Congo ne se
pronolucent ni sur la responsabiliténi sur
1'imputabilitéde certains actesà 1'Ouganda.
Ici non plus, le constat n'est cependant pas
de nature à rendre non pretinentes de telles
sources documentaires. Ilfaut en effet, dans
le cadre de l'étape du raisonnement
judiciizire consacrée à l'établissement des
faits, bien distinguer les deux phases
dzflérentesque sont, d'une part, la preuve
d'un acte et, d'autre part, l'imputation de
cet acte. Ainsi, une chose est de démontrer
"The documents which were presented by DRC are relevant, even
though they do not expresslyestablish the imputability of certain facts to
Uganda, or do not show that country's responsibility."
"It is true that moscof the documents which were presented by Congo do
not expressly establish Uganresponsibil Buty.is circumstance does
not in any way affect their relevance. It goes without saying, at the stage of
establishing facts, that what is important is to prove the validity of certain
acts, and not to state theirconsequences." que l'ini~asiond'une zone territoriale, ou
encore qu'un massacre a eu lieu; autre
chose est de prouver que cette invasion ou
que ce massacre ont étéperpétrés pardes
agents d'un Etat déterrnir~é.~
(Ibid.,para. 1.74; emphasis added.)
A l'évidence, le simple fait que les
documeizts présentés par la RDC ne
comprennent dans certains cas aucune
conclusion ne justifie en rien qu'ils soient
écartés des débat^.^
(Ibid.,para. 1.75.)
48. The DRC contends (and this is a major contention in
Chapter 1of the Reply) that:
En dépitde ce que prétend l'Ouganda, il
sufSitau Congod'établir lesfaits sur la base
de preuves "convaincantes" qui permettent
d'atteindre une "certitude raisonnable."'
(Heading before DRCR, para. 1.76.)
6
"It is also true that, as the respondent strongayseries of documents
which were presented by Congo do not indicate the responsibility or the
imputability of certain acts to Uganda. This situation does not mean that
such documentary sources are irrelevant. With respect to pleadings
pertaining to the establishmentof facts, we must maketinction between
theproof of an act and imputability of the act. Thus, it is one thing to show
that one territorial area was invaded, or that a massacre was committed, and
it is another to prove that the invasion of a territorial area or the massacre
was perpetrated by the agents of a given State."
7"Obviously, the factthat the documents presented bDRChedo not
explicitly establish the responsibility or the imputability of particular facts to
the Respondent State does notjustify their exclusion from thepleadings."
"In spite of Uganda's allegations, it isenough forCongo to establish the
facts on theasis of 'convincing' evidencethat helps achieve 'reasonable
certainty."'49. The DRC is obviously seeking to avoid the application
of the existing standard of proof as formulated in the Corfu
Channel case. (UCM, paras. 158-62.) The DRC cannot expect
to launch serious complaints against another State and then
claim that the standards affirmed in the Coifu Channel case
(Merits) are inapplicable. In any event, the Reply provides no
reasons for disregarding the Corfu Channelcase.
50. The Reply also makes various observations about the
attitude of tribuniils to the admissibility of evidence. (DRCR,
paras. 1.77-130.) However, the issue under examination is not
the admissibilityof evidence,but the standardof proof.
51. The DRC asserts the relevance of the resolutions and
reports of international organisations. (DRCR, paras. 1.82-
1.84.) In the opinion of the Government of Uganda the points
offered in the Reply fail to advance the debate. In the Counter-
Memorial, Uganda did not take a dogmatic position, but pointed
to the need for caution in the evaluation of determinations of
fact by political organs, citing significant authority. (UCM,
Chapter iX, paras. 188-215.) Once again, in the related
passages of the Reply, the DRC confuses the questions of
admissibilityand weight.
52. The DR(: also affirms the relevance of officia1
statements. (DRCR, paras. 1.85-1.88.) Uganda has no
difficulty with the general principle involved, but would
observe that theweight to be given to particular statements will
necessarilyVarywith the circumstances.
53. The Reply also asserts the relevance of monographs and
newspaper articles as evidence. (DRCR, paras. 1.89-1.92.) As
is often the case, the DRC, in seeking to respond to the
Counter-Memori(z1,misses the critical point. Uganda asserted
the limited reliability of press reports. (UCM, paras. 117-18.)
But Uganda did not suggest that press reports are in al1respects
inadmissible. The passages quoted by the DRC from the
Judgment in the: Nicaragua case exhibit a policy of "great
caution." (DRCR, para. 1.90.) That remains the position of
Uganda.54. The DRC next refers to the relevanceof reports of non-
governmental organisations. (DRCR, paras. 1.93-1.98.) In the
opinion of the Government of Uganda such reports are in
principle no more reliablethan media reports. In general, such
reports do not contain evidence on the basis of which a finding
of State responsibility could properly be based. Moreover,
certain non-governmental agencies are by no means
independent andlor have their own agenda. In any event, the
key test is whether the particulardocument provides reliable
evidence relating to the particularfact in issue.
55. At paragraphs 1.99 to 1.115 of the Reply, the DRC
argues that, in general, its evidence is somehow of greater
reliability than that submittedby Uganda. (DRCR,paras. 1.99-
1.115.) The DRC's central contention here is that it has
subrnitted materialsfrom "independent and impartial sources"
that are thus impeccably credible. (DRCR,para. 1.114.) Here
again, the DRC exhibits a basic confusion about thisCourt's
evidential standards. What the DRC would pass off as
"impartial" and "independent"sources, are in fact third-hand,
hearsay (or multiple hearsay) accounts invariably writtenby
people with no direct knowledge of the matters at issue.
Although true thatthese documents were not prepared by the
parties themselves, it is plainly not true that this factalone can
imbue such third-hand accounts with reliability. Indeed,as the
Court expressly noted in the Nicaragua case, such journalistic
and other accounts must be received only withthe utmost
caution, precisely because their reliability is so unknowable.
(I.C.J. Reports, 1986,p.41,para. 63.)
56. In contrast, Uganda has and will again in this Rejoinder
submit substantial amounts of original source documentation
and testimony from individuals with directknowledge of the
matters at issue. Indeed, as the Court will read,most of the
evidence Uganda will nowsubmit consists of sworn testimony
given in open court and subject to cross-examination by
individuals with first-hand knowledge of the matters discussed.
Such court-tested testimony mustobviously enjoy a far higher
degree of credibility than anything offered by the DRC in the
presentationof its case. CHAPTER II
REAFFIRMATION OFUGANDA'S NECESSITY
TOACTINSELF-DEFENCE
57. This Chapter responds to the factual allegations in
Chapters II and 1.1of the DRC's Reply concerning Uganda's
rnilitarydeployments in the DRC.
58. Chapters II and III of the Reply actually corroborate
Uganda's positicsn, fully demonstrated in the Counter-
Mernorial, that she sent her armed forces into eastern Congo
solely for the purpose of lawful self-defence. Though
purporting to deriy Uganda's claim,the Reply, by itsexpress
factual admissions and by its failure to contest critical evidence
presented by Uga~ndau, nderscores Uganda's argumentthat she
acted strictly in the exercise of her inherent right of self-
defence.
59. As showri below, the DRC has now admitted, either
directly or by failure to contest, al1 of the essential factual
elements that support Uganda'sclaim of self-defence,to wit:
(i) That from the time of former President
Mobutu Ssese Seko until the present, the
Allied Democratic Forces ("ADF") and five
other anti-Uganda insurgent groups have
maintained bases in eastern Congo from
which they have repeatedly launched armed
attacks in and against Uganda;
(ii) That successive Congolese Governments
headed by Presidents Mobutu and Laurent
Kabila either chose not to take any action to
prevent these attacks against Uganda or were
unable to do so;
(iii) That the ADF was supported militarily,
politically and financiallyby the Government
of Sudan,which was then carrying out armed
aggression against Uganda both directly
across her own long border with Uganda and through the anti-Uganda insurgent
organisationsbased in eastern Congo;
(iv) That, in the DRC's own words, "the ADF
problem exploded"in 1997,and thatby 1998
"the ADF constituted a real threat in
southwestUganda;"
(v) That the threatto Uganda was so seriousthat,
at least from late 1997through thebeginning
of August 1998,the DRC authorised Uganda
to maintain three battalions of the Uganda
Peoples Defence Forces("UPDF") ineastern
Congo, and to carry out operations against
the ADF and other anti-Uganda groups either
on its own or jointly with Congolese
Government forces;
(vi) That, although the explanations for his
actions in the Reply and the Counter-
Mernorialdiffer, President Kabila broke off
his alliances with Rwanda and Uganda
between May and July of 1998, and
established new alliances with Sudan, Chad,
the ex-FAR (former members of the
Rwandan Army responsible forthe genocide
against the Rwandan Tutsi population in
1994), and the ADF and other anti-Uganda
insurgentgroups supportedby Sudan;
(vii) That on 2 August 1998,a rebellion brokeout
against President Kabila and his government,
initiated and led by mutinous units of the
Forces Arméesdu Congo ("FAC") stationed
in eastern Congo, and quickly joined by the
Banyamulenge, Congolese Tutsis disaffected
with thegovernmentbecause of its anti-Tutsi
bias;
(viii) That during August 1998, with his new
alliancesthen in place, and in furtherance of them, President Kabila asked or allowed
Sudan to: send Sudanese troops into Congo
and occupy major airfields within striking
distance of Uganda; drop bombs on the
Ugandan troops that the DRC Government
had allowed into the border regions of
eastern Congo; and deliver arms and matériel
to, and step up training and logistical support
of, the anti-Uganda insurgents so that they
could intensify their armed attacks against
Uganda;
(ix) That President Yoweri Museveni and other
Ugandan leaders publicly warned President
Kabila that his alliance with Sudan
constituted a grave securitythreat to Uganda,
and that Uganda could not sit idly by if the
DRC continued to allow Sudan to station her
troops in eastern Congo or to assume control
of airfields within striking distance of
Uganda;
(x) That, despite these warnings, Sudan
continued, with President Kabila's
permission, to station troops in the DRC, to
occupy strategic territory (including airfields
in eastern and northeastern Congo), and to
actively support the ADF and other anti-
Uganda insurgent groups in their attacks on
Uganda;
(xi) That, faced with what she regarded as the
gravest of threats to her security, Uganda
decided on 11 September 1998 to drive the
Sudanese out of eastern Congo and to
prevent the ADF and other anti-Uganda
groups from continuing to attack Uganda
from Congolese territory. (Uganda's
decision is reflected in a contemporaneous
interna1 document, of the highest security
classification, that Uganda nevertheless annexed to the Counter-Mernorial (UCM
Annex 27));
(xii) That thereafter Uganda senther armed forces
into the DRC where, between mid-September
1998 and mid-July 1999, following
numerous engagements with the Sudanese,
Chadian, ex-FAR, and ADF forces allied
with President Kabila'sFAC, they succeeded
in accomplishingthese objectives;
(xiii) That in July 1999 Uganda, the DRC, al1of
the other States that then had troops in
Congo, andeach of the three main Congolese
rebel movements signed a peace accord in
Lusaka, Zambia, which became known asthe
Lusaka Agreement, and which establisheda
new systemof public order in the DRC. The
Agreement provided, inter alia, for the
phased and simultaneous withdrawal from
the DRC of al1 foreign troops, including
those of Uganda,following thedisarmament,
demobilisation, repatriation and
rehabilitation of specially-designated"armed
groups," including the ADF and five other
anti-Uganda groups based in Congolese
territory;and
(xiv) That, even at the height of the conflict prior
to the Lusaka Agreement, Ugandahad fewer
than 10,000troops in eastern Congo, an area
larger than Germany. These forces were
concentrated in the regions adjacent to the
Ugandan border andat airfields from which
Uganda was vulnerable to attack. Since the
Lusaka Agreement, and pursuant thereto,
Uganda has withdrawn al1 of her armed
forces from the DRC, except for a small
presence that remains in the border region in
strict accordance with the terms of a bilateral
peace agreement between Uganda and the DRC that was executed by the Presidents of
both States at Luanda, Angola on 6
September 2002.
60. With one exception, al1of the above is either expressly
admitted by the 1?eply,or fully demonstrated by the Counter-
Mernorial and uncontested by the Reply. It must now be taken
as fact. The onl,yexception is the reference in subparagraph
(xiv) to the bilateral peace agreement between Uganda and the
DRC, which was achieved on 6 September 2002, after the
Counter-Mernorial and the Reply were submitted to the Court.
Neither the existence of the agreement, incorporated in this
Rejoinder as Annex 84, nor its express terms are or could
possiblybe in dispute. Thus, it too must nowbe taken as fact.
61. The principal thrust of theDRC's Reply is to attempt to
show that, far from waiting until Il September 1998 --when,
by virtue of Sudan's presence and actions in eastern Congo, the
threat to Uganda's security was both severe and imminent --
Uganda sent her armed forces into the DRC as early as 2
August 1998 in support of the rebellion against President
Kabila, and not in the exercise of her inherent right of self-
defence. The Reply, for example, accuses Uganda of: (1)
fomenting the ;! August rebellion of the FAC units; (2)
participating in a coup d'état attemptagainst President Kabila
on the same date; (3) attacking the Kitona military base in
westernCongo on 4 August, (4) attacking Kindu insoutheastern
Congo; (5) creatiingthe RCD rebel organisation;and (6)sending
additional troops into eastern Congo on 6 August.
62. None of these accusations is true; nor is any of them
supportedby what the Reply irresponsiblyattempts to present to
the Court as "evidence," almost al1 of which consists of
unsubstantiated opinions or statements by unidentified persons,
or multiple hearsay of the most unreliable kind, appearing in
journal articles, or books by the sarnejournalists (of unknown
biases) who wrote those articles. The few purportedly "first-
hand" accounts of events submitted by the DRC either do not
say what the Reply wants them to say, or are so patently
incredible as to be laughable. Uganda rejects them al1 and
categorically affirms: (i) That Uganda did not foment, encourage, or
contribute to the August 1998 rebellionby
Congolese army units, or the attemptedcoup
d'état againstPresident Kabila. To the
contrary, Uganda was deeply troubled by
these events, which she regarded as
threatening to her own interests in
maintaining securityin the borderregion;
(ii) That Uganda did not create, organise, control
or collaborate militarily withthe RCD or any
other Congolese rebel organisation during
August 1998(or priorthereto);
(iii) That Ugandan troops did not participate in
the attackson Kitonaor Kindu;and
(iv) That Ugandadid not sendnew troopsinto the
DRC until after 11 September 1998. The
only Ugandan troops in Congo prior to that
date were the same three battalions, stationed
in eastern Congo close to the Uganda border,
which had been there since 1997 with the
Congolese Government's consent.
63. Thus, despite the outbreak of war in the DRC at the
beginning of August 1998 and the chaos the war generated
directly across her border, Ugandainitiated no militaryaction for
more than six weeks --until the middle of September. By that
time, as the evidence now conclusively shows, the threat to
Uganda's security from Sudan, which, with the DRC's
permission, was positioning troops and occupying airfields
within striking distance of Uganda, became unacceptable. For
this reason only -- to defend herself against a serious and
imminent threat to her security -- Uganda sent her troops into
easternCongo. The DRC'sAdmissions RegardingThe
A.
ThreatTo Uganda's Securitv Posed Bv The
-DF
64. The security threat to Uganda posed by the ADF and
other anti-Uganda insurgent groups operating from Congolese
territory was demonstrated at length in the Counter-Memorial.
(UCM,paras. 17-:23,34-36'40-41,47-51,61-64'95-97.)
65. The DRC now admits the seriousnessof this threat. The
Reply acknowledges that the ADF "a toujours opérédans la
régionfr~ntalière."~ (DRCR, para. 3.19.) Tt confirms that
eastern Congo "a toujours étéle repère de mouvements
irréguliers agissant à l'encontre des gouvernements tant du
Congo puis du Liaïre, d'une part, que de l'Ouganda d'autre
part. Aucun des deux Etats n'a jamais réussi à contrôler
durablement cette frontière...."'O (DRCR, para. 3.10.)
66. The ADF's use of Congolese territory to stage armed
attacks against Uganda transcended the regimes of Presidents
Mobutu andLaurent Kabila. During the last yearsof Mobutu's
Presidency, "Anti-Museveni forces (the Allied Democratic
Forces, the Lord's Resistance's Armyand the West Nile Bank
Front) were usin;: Congo as a rear base from which to launch
attacks against Uganda." (DRCR, para. 3.98.) But, "le
renversement du régimedu Maréchal Mobutune paraît guère
avoir modifié la situation sur le terrain en Ouganda. Les
diflérentesforces rebelles maintiennent leurs activités pendant
toute la période qui fait l'objet de notre analyse."" (DRCR,
para. 3.16.) Inde:ed,"[c]omme elles l'ont toujoursfait dans le
passé, les forces de 1'ADF ont continué de se réfugier en
territoire congor!ais. Dès le mois de mai 1997, il semble
- - -- -
"has always operated in the border areas."
'O"has always been ihe theatre of irregular rebel movementsacting against
both the governments of Congo and Zaire on one hand and Uganda on the
other.None of the two States has ever been able to sustainablycontrol this
border..."
" "Mobutu's overthrow does not seem to have changed the situation on the
ground in Uganda. The differentrebel forces maintained their activities
during the entire period that we are analysing."d'ailleurs que certains membres des ex-FA2 ... se soientjoints
à cetteforce rebelle. L'ADF gagne alors momentanémentdes
positions dans l'ouest de I'Ougcznda, et ses opérations se
poursuivent deplus belle."12 (DRCR, para. 3.15 .)
67. Moreover, the DRC concedes that "the ADF problem
exploded in 1997." (DRCR, para. 3.20.) According to theDRC
and its sources, the "explosion7' wasthe result of support from
"Sudan, des milices interhamwes rwatzdais ou d'anciens
militaires issus des armées deMobutu et d'~ub~arimana.""
(DRCR, para. 3.21.) After the fa11of Mobutu, the ADF was
"renforcé[] par le ralliement de milliers de soldats des
anciennes armées rwandaise et aïr roi se. (D'RCR, para.
3.21 .)By 1998,the ADF sought to "coordonner unfront uni de
1'oppositionougandaise que tententd'organiser les autorités de
Karthoum. Pour cefaire, le mouvement envisage de monter des
opérations en coordination avec la LRA et le WNBF.""
(DRCR, para. 3.22.) Thus, by "l'automne 1998, Z'ADF
constitue une menace réelledans le sud-ouest o~gandais."'~
(Ibid.)
68. While confirming that the ADF and other anti-Uganda
insurgent groups operating from Congoleseterritory constituted
a "real threat" to Uganda7s security, the DRC argues in the
Reply that she never provided direct support to any of these
" "[ais they had done in the past, the ADF continued to take refuge in
Congolese territory. From May 1997,it seems certain members of the
FAZ (Zairean Armed Forces)joined this rebel force. ADF thus momentarily
captured areas in western Uganda, and its operations are continuing
strongly"
13
"Sudan, the Rwandese Interahamwe militia and former soldiers who were
in Mobutu and Habyarimana's [i.e., the former President of Rwanda]
armies."
14"reinforced by the rallying of thousands of former soldiers of the former
Rwandese and Zairean armies."
l5"coordinate a united Ugandan opposition front which tried to mobilise
support from the Khartoum authorities. In order to do this, the movement
planned to carry outjoint operations with the LRA and WNBF."
16"the autumn of1998,the ADF constituted a real threat in South-western
Uganda."groups. Rather, she contends, she simply was not able to
exercise effective control over the eastern borderregions where
they operated. (See, e.g., DRCR, paras. 3.20, 3.34, 3.81, 3.82.)
Uganda presented extensive proof of the DRC7ssupport for the
ADF and other a!nti-Ugandagroups in the Counter-Mernorial.
(UCM, paras. 33-41.) The Reply challenges this proof.
(DRCR, paras. 3.68-3.79.) Uganda acknowledges the difficulty
of establishing, by first-hand account, the direct military
relationship between the DRC and the ADF, especially in the
face of theDRC'c;deliberate efforts to carry on this relationship
in secrecy. Nevertheless, Uganda feels she has carried her
burden inthis regîud.
69. Moreover, in addition to the evidence presented in the
Counter-Mernorial, the covert military support given by
President ka bila.'^government to anti-Uganda groups is
demonstratedby iùrther items of evidence that merit the Court's
attention.
70. The first is a 2 February 1998 letter in which the ADF
reached out once again to Col. Mathias Ebamba, the ex-FAZ
officer in charge of coordination with anti-Uganda insurgent
groups during the Mobutu era, who was reappointed by
President Kabila l;othe eastern DRC aspart of the newly formed
FAC. (UCM, para. 34.) The letter demonstrates the ADF's
closeness to Col. Ebamba, expresses gratitude for his past
support,and reaches out to him to renew that support:
Col. E,bbamba
Dear Sir we're greeting you with much
respect and honour.
First we thank the Almighty God who
enables us toreach this time when we're still
existitig on this Earth. Actually this is so
great, we've to praise him and thank him
each and every time and we are sure that he
will give us ajoyful victory.
Dear sir since we heard that you were
admitted this way again, we were so glad to had that news because we still hope thatyou
never change your mind even if you are in
another regimeby now.
On our side we still continue with Our
struggleof liberatingOurmother country 'U'
therefore we are in much need of your help
if you never change your rnind. We still
beleave that you7reOurfather and we can't
forget these you did for us and we're
praying to God to reward you a good
successin al1yourjobs.
By al1of these we can decide to send to you
Our personal messenger to meet you but
after we have received your reply of
assuring us that you will wellcoming him
with peace andlove.
We need your reply verysoon through that
Gentleman who will give you this letter by
al1 means either by words or by writing a
letter, we are waiting for it with more
pleasure and hope that you can7t give up
your morale therefore we're requesting you
to tell us exactly what is your position in this
our struggleof liberatingOurmother country
from 'Batutsi's' hand [Le., from Tutsi
controll.17
And if you have a telephone you can give us
your No. and it will be easy to contact you
secretly throughthat telephone.
We think you will enjoy with this message
from your own Sons, let us pray to God to
enables us meet oneday inhis days.
" The ADF consistently, but erroneously, referred to President Museveni as
aTutsi. Yrs faithfully
(UR Annex 21.)'' While Uganda was not privy to Col.
Ebamba's response to the ADF's overture, developrnentsin the
region made plain that the response was positive.
71. In fact, even before Col. Ebamba was reassigned to
Beni, in eastern Congo, there was evidence of collaboration
between the FAC and the ADF. According to an interna1report
from the UgandarnExternal Security Organisation:
In Jariuary 1998, Col Kasareka of FAC
conspired with the ADF who killed 17
UPDF soldiers in Lume. Following this
incident he was transferred and replacedby
Col Ebemba Mathias who had armed and
facilitated the ADF andNALU rebels during
Mobutu'sera.
(UR Annex 108, :p.10.) Upon his return to eastern Congo, Col.
Ebamba picked up where Col. Kasareka left off and continued
Congolese arrny support for the ADF. (UCM, para.34.)
72. The active collaboration between the DRC Government
and the ADF is further confirmed by the statement of
Mohamed Kiggu.ndu, former Chairman of the UNFMIA, an
anti-Uganda rebel group that allied with the ADF in 1998. He
states:
Having made an alliance with the ADF in
1998, 1 came to understand the following
18
Yusuf Kabanda w;asChief Director of the ADF's political wing. (UCM
Annex 60, p.1.)
19In his sworn testiniony before Uganda's Porter Commission (the nature
and purpose of the Porter Commissionare discussed a28nbelow),
General James Kazini, formercommander of UPDF troops in the DRC,
stated that thetter had been recovered among materials Col. Ebamba left
behind in Beni(UR. Annex 60, Part pp. 32-40.) ternls under which wewere in alliance with
the Congo.
The Congo government had provided
uninterrupted passage through theCongo to
the ADFbases.
The Congolese government also provided
space for purposes of delivery of equipment
and manpower to the ADF bases. (Beni,
Lugetsi)
The Congolese government also provided
ground for purposes of camping and
training.
Funds were also remitted in the specified
amounts from the Congolese government to
the ADF.
The following were contacts who helped
link up the ADF to the Kinshasa
government[:] KABEBA, ABBEY
MUTEBI ... GEN. MBOKA, GEN. ELUKI
and Gen.BALAMOTO
(URAnnex 86.)
73. The military contacts between the DRC and the ADF
extendedto the highest levels:
On 9.8.98, Taban Amin, son of [former
Ugandan dictator] Idi Amin was appointed
ADF's Chief of Staff. He came to the DRC
in 1997 after the defeat of [the West Nile
Bank Front]. Prior to its defeat, WNBF
freely operated from Bunia, Garamba
National Park and Ariwara. Taban became
close to Kabila. He even escorted him to
Morocco inMay 1998.
(UR Annex 108,p. 12;emphasis added.)74. Thus, by the rniddle of 1998, President Kabila's policy
toward Uganda hâd changed from one of cooperation to one of
hostility. Whereas, in 1997, he actively collaborated with
Uganda in a joint effort to eliminate the threat to Uganda's
security posed by the ADF, by May 1998 he was courting the
ADF's leadership, and soon thereafter collaborating with it
against uganda.'" Dr. Kamanda Bataringaya, Uganda's
Ambassador to the DRC, who observed this change in policy at
first hand, declared:
15. That after the faIl of the Mobutu
government in 1997,President Laurent
Kabila's regime in the now-renamed
DRC initially offered Uganda
cooperation in dealing with the long-
standing problem of anti-Ugandan
i:nsurgentsoperating from the territory
of the DRC.
16. That indeed,there were efforts towards
joint military operations between the
Uganda People's [Defence]Forces and
the FAC targeting the insurgents.
17. That in mid-1998, however, the degree
of President Kabila'scooperationthat 1
observed began to decline. Although
the DRC's nominal policy remained
one of cooperation right up until
14ugust 1998, the actual cooperation
tlwindledto zero.
18. 'i'hatprior to August 1998, President
IKabilaand other elements of the DRC
regime began actively supporting and
collaborating with anti-Ugandanforces
20According to a report submitted by the Director of Uganda's External
Security Organisation to President Museveni, ADF recruits who had been
receiving military anidpolitical atthe Congolese military training
facility at Kinyogoti, DRC were turned out and ready forcombat in July
1998.(UR Annex 28.) including insurgents known as the
Allied Democratic Forces (ADF) as
well as Sudan.
19. That ... among the intelligence
documents located in the Ugandan
embassy in Kinshasa are documents
evidencingthese facts ....
20. That for example, 1recall a document
concerning the fact that the Sudanese
government was supplyingADF rebels
operating out of Eastern Congo with
arms and ammunitions [with] the
knowledge and consent of the DRC
government.2'
(UR Annex 87, paras. 15-20.)
75. Although it denies that there were direct military links
between the DRC Government and the ADF, the Reply
concedes that rnilitary support was provided to the ADF and
other anti-Uganda insurgent groups via the triangular
relationship betweenthose groups, the Governmentof the DRC
andthe Governmentof Sudan.
76. After citing various sources,the Reply asserts repeatedly
that Sudan is "[un] soutien actifde ces mouvements rebelles, et
non la RDC,"~*(DRCR,para. 3.22),andthat "c'est ici encore la
République du Soudan qui est citée,et non la RDC'~~as the
source of "external support" for the anti-Uganda insurgents.
(DRCR,para. 3.23.) Moreover,as the Reply acknowledges, and
as detailed below, the military support given by Sudan to the
ADF and other anti-Uganda groups in the DRC was provided
*'Dr. Bataringaya was forced to flee Kinshasa in August 1998. At the time,
theFAC seised the Ugandan Embassy and confiscated al1of its property,
including al1of Dr. Bataringaya's documents. (UR87,para.9.)
Thus, he was notable to bring them backto Uganda with him.
22"an active source of support for these rebel movements, and not theDRC,"
23"it is again the Republic ofSudan that is mentionDRC"not thewith the full knowledge and consent --indeed, with the express
approval --of the 'DRCGovernment, in furtheranceof a military
alliance that President Kabila established with Sudan between
May and July 1998.
77. Thus, it begs the question for the DRC now to deny
responsibility for the armed attacks carried out against Uganda
by the ADF ancl other anti-Uganda groups operating from
Congoleseterritory on the dubious ground that the DRC herself
provided no direct military support to those groups. As the
admitted and uncontested facts now show, the DRC
Government licenicedSudan to provide military support to the
Congo-based anti-Uganda insurgents, and she did so. In these
circumstances, the DRC Government is as responsible as Sudan
for the insurgents' armed attacks in and against Uganda, or as
she would be if she supported the attacks directly. (See infra,
Ch. III, para. 277.)
B. TheDRC'sAdmissionsRe~ardingThe
ThreatTo Uganda'sSecuritvPosedBv Sudan
78. In the Co,unter-Memorial,Uganda amply demonstrated
the threat to her security posed by President Kabila's military
alliance with Sud,an,the arriva1of thousands of Sudanese troops
in eastern and northeastern Congo, the Sudanese occupation of
strategic airfieldis within striking distance of Uganda, and
Sudan's stepped up rnilitary support for the anti-Uganda
insurgents attacking Uganda from Congolese bases. (UCM,
paras.38,48-50, 52.)
79. In herReply,the DRC meekly contends that some of the
assertions in the Counter-Memorial about President Kabila's
meetings and agreementswith senior Sudanese Governmcnt and
Army officials are unsupported, or even contradictory. Uganda
disagrees. In fact, the source of the assertion that President
Kabila made a clandestine visit to Khartoum in May 1998 to
establish a secret military alliance with President Omar Bashir
of Sudan is noné:other than the DRC's then Foreign Minister,
Dr. Bizima Kardha, as acknowledged in one of the DRC's own
sources. (International Crisis Group, Congo Report No. 3, HowKabila Lost His Way,p. 22 (1999) (cited, inter alia, at DRCR,
para. 2.08.)
80. Moreover, the alleged contradiction in Uganda's
assertions about meeting dates in May and August 1998
(DRCR, para. 3.70) is easily explained by the fact, made clear
in the Counter-Mernorial, that there were two separate
meetings. The first, in May, involved President Kabila's secret
meeting with Sudanese President Omar Bashir to initiate the
military alliance between the DRC and Sudan. (UCM, para.
38.) The second, in August, solidified and deepened the
already-existing military cooperation between theDRC and
Sudan. (UCM, paras. 49-50.) In fact, in addition to these two
meetings in Khartoum, President Kabila had a third meeting
with the Sudanese, thisone in Gbadolite, wherehe flew secretly
to meet with Sudanese Vice President Ali Othman Taha to
arrange for the incorporation of Sudanese-trained anti-Uganda
rebels into the FAC, and for increased weapons andlogistical
supportto the ADF. (UCM,para. 50.)
81. Most significant about the threat to Uganda's security
posed by Sudan is what the Replydoes not Say. Specifically,it
does not deny aïzy of Uganda's assertionsabout the military
alliance between President Kabila and Sudan, or about any of
the actions taken by Sudan or the DRC in furtherance of that
alliance. This is quite extraordinary. Uganda's statements
about the DRC's complicity with Sudan in carrying out armed
aggression against Uganda areso damning that it can only be
presumed that, if there were any basis for denyingthem, the
DRC would have done so. Her silence in these circumstances
is, therefore, quite stunning. It leaves room for only one
conclusion -- that the following declarations in Uganda's
Counter-Mernorialmustbe taken as true:
(i) Sudan provided military assistance to the
DRC in the form of arms, troops and
equipment;
(ii) In return, the DRC put airfields in eastern
and northeasternCongoat Sudan'sdisposal; Sudan used the airfieldsto deliver matériel to
the FAC and to the anti-Uganda insurgent
groups operating in Congo, including the
ADF andWNBF;
The DRC and Sudan resumed military
coordination with the anti-Uganda
insurgents;
Sudan airlifted 3,500 anti-Uganda insurgents
of the WNBF to Kinshasa where they were
incorporated into the FAC and sent to fight
alongside FAC;
Sudan airlifted to Kindu her own army units,
plus several thousand anti-Uganda insurgents
from the WNBF and LRA, to fight alongside
DRC Government forces against Congolese
rebels and the RwandanAmy;
(vii) Sudan persuaded the Governmentof Chad to
enter the war as her (and the DRC's) ally,
and the Sudanese air force transported an
entire Chadian brigade, consisting of 2,500
troops, to Gbadolite, in northern Congo, with
the mission of attackingthe Ugandan forces
stationed in eastern Congo;
(viii) Sudanese Brigadier Saladin Khalil oversaw
the delivery of three planeloads of weapons
to theFAC in Kinshasaon 14August 1998;
(ix) Sudan steppedup her training of FAC troops,
including ex-FAZ, ex-FAR, WNBF, ADF
and Rwandese Interahamwe Militia Units
that had been incorporated into the FAC;
President Kabila flew to Khartoum in August
1998 to reaffirm his military alliance with
Sudan, and arranged for more Sudanese
military assistance to his government, including the contribution of a Sudanese
brigade ineastern Congo;
(xi) President Kabila met with Sudanese Vice
PresidentAli OthmanTaha soon thereafterin
Gbadolite, where they agreed on a direct
combat role for the Sudanese military in
Congo, the further incorporation of
Sudanese-trained anti-Ugandarebels into the
FAC, and an increase in weapons and
logistical support to the insurgents operating
in eastern Congo;
(xii) Sudanese Antonov aircraft bombed UPDF
positions at Bunia, in eastern Congo, on 26
August 1998;
(xiii) Sudanese Colonel Ibrahim Ismail Habiballah
delivered a planeload of weapons to theFAC
in Gbadoliteon 2 September 1998,for use by
anti-Uganda UNRF II units that had been
incorporatedinto the FAC; and
(xiv) A Sudanese army brigade of approximately
2,500 troops under the command of
Sudanese Lieutenant General Abdul Rahman
Sir Khatim landed in Gbadolite, moved out
to Businga, and prepared to engage the
UPDF forces in eastern Congo.
(UCM, paras. 38, 47-52.) It bears repeating that none of these
facts is deniedin theReply.
82. Oneelementon which the Reply is notsilent is President
Kabila'sdecision inthe middle of 1998toend his alliances with
Rwanda and Uganda and establisha new one in theirplace with
Sudan. The Reply concedes that this is exactly what happened.
It cites approvingly contemporaneous sources statingthat
"Kabila is reported tobe looking fornewexternal allianceswith
Sudan, Cuba, the Central African Republic, Zimbabwe and
Angola, as well as among other interna1groups like the former
Rwandan Army and Interahamwemilitia, ex-Mobutu, Mai Mai,ADF rebels ... who are hostile to Rwanda, Uganda and
Burundi." (DRCK, para. 3.24.) The Reply goes on to quote
approvingly frorn sources reporting that "Kabila has
rehabilitated the groups that he fought against with the AFDL
-- the ex-FAR, FDD and ADF -- in order to weaken his
former allies." (Ibid.)
83. The only disagreements between the Reply and the
Counter-Memorial with respect to President Kabila's dramatic
change in a1liance.sare about why and when it occurred. As to
why, Uganda suggestedin the Counter-Mernorialthat President
Kabila's failed domestic policies and resulting unpopularity led
him to join, and even assume leadership of, the growing
nationalist andethnic backlash against Rwandan and Congolese
Tutsi domination of the Congolese Government and Army.
(UCM,paras. 33,37,42.)
84. The RepLy, more charitably to President Kabila,
attributes his decision to ally himself withhis allies' enemies to
his fear that '"son désir d'indépendance pourrait être
sév,724entsanct,ionnépar ceux qui l'avaient aidéau pouvoir
.... (DRCR, para. 3.24.) What is important about this
assertion, however, is that it confirms what Uganda has said --
President Kabila :madea deliberate decision in mid-1998to cast
off his associationswith Rwandaand Uganda in favorof a new
alliance with Siidan and other entities hostile to Uganda,
Rwanda or both.
85. The disagreement about timingis more significant. The
Reply argues tbat President Kabila's rnilitary alliance with
Sudan and the ainti-Ugandainsurgent groups did not pose a
threat to Ugandia's security until after Uganda had already
launched an armed intervention into the DRC in the guise of a
domestic uprising on 2 August 1998. Thus, the Replycontends,
the DRC's allian~ce with Sudan and the anti-Uganda insurgents,
and al1of the actions taken in furtherance thereof (which the
DRC now admits), were nothing more than an exercise of the
DRC's inherent rightof self-defence against anarmed attack by
hirn ttakepower...."dependence would be resisted by those who had helpedUganda. (DRCR, paras. 3.24, 6.49.) In this fashion, the DRC
virtuallyconcedes that, if Uganda didnot attack her on or about
2 August 1998, but instead waited until after 11 September
1998 before sending her troops across the border into eastern
Congo (as set forth in the Counter-Memorial,paras. 53-54), the
aggressor State could only be the DRC herself. That isexactly
what happened.
86. The Reply acknowledges that Uganda felt that her
securitywas seriously threatenedby the DRC's militaryalliance
with Sudan especially, and that Uganda's Presidentmanifested
his vociferous protest about the arriva1 and stationing of
thousands of Sudanese troops in strategic Congolese locations
from which his country could easily be attacked. The Reply
quotes President Yoweri Musevenion several occasions during
this period issuing explicit warnings that Uganda would not
tolerate the presence of Sudanesetroops so close to her borders,
or at airfields that could be used to bomb Ugandan targets, and
urging DRC authorities to remove this grievous threat to
Uganda's security.
87. In particular, on 9 September 1998,President Museveni
publicly announced that the three Ugandan battalionsstationed
in eastern Congo since 1997 would not be removed "until he
received assurances fromKabilathat neither the Ugandan rebels
nor the Sudanese military would use Congolese facilities for
attacks on Kampala." (DRCR, para. 3.60.) When no such
assurances were received and, instead, Sudanese forces
continued their buildup in eastern and northeastern Congo,
Uganda decided, two days later on 11 September, to dispatch
her troops againstthe Sudanese and the anti-Uganda insurgents.
(UCM Annex 27.) On 16 September, after this decision was
made but before it was executed, President Museveni madeone
last public plea to President Kabila to remove "the threats to
Uganda's security emanating from the DRC" that "make
Uganda's involvement inevitable.. .."(DRCR,para. 3.59.)
88. The DRC chose to ignore these entreaties. As a
consequence, Uganda pursued the only action possible to
eliminate the imminent threat to her security posed by the
Sudanese military presence in eastern and northeastern Congo.Between 16 and 20 September 1998, she sent her troops into
Congoto drive the sudanese out.
C. TheDRC'sAdmissionsRegardingHer
ConsentTo ThePresence OfUgandanTroops
In CongoleseTerritorvToAddressThe
ThreatsTo Uganda'sSecurity
89. The DRC admitted in herMemorial that Ugandan troops
entered the DRC by invitation from the CongoleseGovernment,
in recognition of' the threat posed to Uganda's security by
attacks in and against Uganda carried out by the ADF and other
anti-Uganda insurgents based in eastern Congo. (Memorial
("DRCM), paras. 5.23, 5.37.) In the Reply, the DRC further
admits that "[d]e:ropérations conjointesdesforces armées des
deux Etats dans la régionfrontalière ont ainsi étéenvisagées
dès le mois de septembre 1997."~' (DRCR, para. 3.37.)
Further, "the DRC has permitted Ugandan military forces to
carry out operations and in some cases to conduct joint patrol
activities"inside Congo. (Ibid.) Thus, "[d]ifSérentesactions
militaires ougandaises ont ensuite étémenées en territoire
congolais avec l'accord des autorités locales,"" citing as
examples operations in December 1997 and February 1998.
(DRCR, para. 3.38.)
90. Eventuall;y,"[l]a coopération accruede la RDC et de
l'Ouganda en matièrede sécurité a encore ...étéorganiséde
manière plus str~icturelle,"~esulting in the Protocol signed by
the two States on 27 April 1998. (DRCR, para. 3.40; UCM
Annex 19.) As set forth in the Reply, "the two parties
recognised the existence of enemy groups which operate on
either side of the common border. Consequently, the two
armies agreed to CO-operateto ensure security and peace along
the common border." (DRCR, para. 3.40.) The Protocol
25
"ljloint operations of the armed forces of the two States inside the border
region were thus planned right from Sep1997."
26"[v]arious military operations were then cbyUganda on
Congolese territoryh the permission of the local authorities,"
27"[tlhe increasedcooperation DRCthand Uganda in security matters
was organized in a more structured manner,"formalised the arrangement under which Uganda maintained
three battalions in eastern Congo, in or near the Congolese
townsof Beni and Butembo,close to the Ugandan border.
91. In sworn, public testimony before an independent
investigative commission appointed by the President of
a an da, the Honorable RalphOchan, Permanent Secretaryin
Uganda's Ministry of Foreign Affairs, described the
circumstancesin which the Protocolwas adopted:
Mr. Ochan:
The circumstancesmy Lord under which the
agreement was written must be taken into
account in trying to interpret it in terms of
the rootsof the Public InternationalLaw ....
Justice Porter:
Wejust really wanted theexplanation of the
problem.
Mr.Ochan:
My explanation of the problem is really
straightforward, there were incursions in
28 The Commission, known as the "Porter Commission" afterits Chairman,
Justice David Porter, is an independent,judicial panel established to
investigate allegationsconcerning the exploitation of the DRC's natural
resources contained in the April 2001Report of the Panel of Experts on the
Illegal Exploitation of Natural Resources and Other Forms of Wealth of the
Democratic Republic of the Congo ("First UN Panel Report"). S/2001/357
(12April 2001). The Porter Commission, the work of which ison-going,
received considerable amounts of sworn witness testimony, mostof which
was receivedinopen court, and subject to vigorous cross-examination by the
members of the Commission. Much of that testimony is reproduced in the
Annexes attached hereto. (UR Annexes8-67,78.) Although the Porter
Commission's mission was to investigate allegations concerning the
exploitation of the DRC's natural resources, it received considerable
evidence bearing on other issues pertaining to the deployment of Ugandan
armed forces in the DRC. Forbrief introduction to the Commission, its
work and its members, see pages 1-2of Annex 58 attached tRejoinder.
(UR Annex 58, PartA, pp. 1-2.)Uganda, schools were burnt down, school
childreinwere killed, 83 of them were burnt
in Kicwamba, there was a massive invasion
at Mpondwe. So this agreement meant that
in effect the UPDF was permitted to ensure
that they go to the root cause, to the homes,
to the lbasesof these perpetrators of this on
the western border. This is the background
my Loird.
Justice Berko:
Mr. Ochan, you see before this protocol was
negotiated or was agreed upon, Congolese
had si:curity concerns in their area and
Uganda had security concerns in their area.
Now f-Illin these agreements Uganda had
been iinCongo but Congolese had not been
in Uganda. So the way you see it is that
Congolese interpreted to mean that they
have t.o be in their country to secure the
border there and then UPDF will be on our
side tosecure the border.
Mr.Ochan:
That is not correct my Lord.
Justice Berko:
What did this mean?
Mr. Cbchan:
First of al1the reason it was easy for rebels
to crcbssover into Uganda and burn down
schools and kill school children because
there was no effective administration in the
eastern part of the Congo. The basis of this
agreeimentis that UPDF would cross over
and niaintain Law and order and make sure
that the homes where the rebels were found and Congolese stayed free, the problem was
addressed by our own troops my Lordit is
common knowledge that the DRC did not
have any effective administration and that
explains why rebels could have come and
could train there,could fly equipment there
to cross into Uganda and cause
extermination. The Congolese recognised
this and allowed Ourpeople. The problem
was in the homesof the rebellion where the
rebels committedmurder in the eastern part
of the DRC.
(UR Annex 64, Part A, pp. 6-7.)
92. Given the DRC's admitted inability tomaintain security
on her side of the border with Uganda, together with thefact
that armed attacks were occurring in one direction only (i.e.,
from the DRC into Uganda), there can be no mistaking the
purpose of the Protocol -- to allow Uganda to operate in the
DRC againstthe anti-Ugandainsurgents.
93. In fact, the purpose of the Protocol has been amply
admitted by the DRC. As already cited above, the DRC's
original Memorial states unambiguously: "Prior to 28 July
1998, Ugandan troops were present on the territory of the
Democratic Republic of the Congo with the consent of the
country's lawful Government." (DRCM, para. 5.23; Eng.
trans.)
94. The Reply triesto avoid the effectof this flat admission
by contendin that any argument based thereon is
"irrecevable."" (DRCR, para. 3.204.) Yet, the DRC offers no
reason why this should be so. To the contrary, a statement
formally submitted to the Court in a pleading signed by an
officially designated Agent of the DRC Government must be
deemed an admissionby which the DRCisbound.95. Having adrnitted that Ugandantroops were present on
Congolese ter rit or^y consent at least through 28 July 1998, it
is up to the DRC to prove that such consent was withdrawn at
some later moment in time. The DRC's attempts to shift the
burden of proof to Uganda to show continuing consent must
fail. (See DRCR, para. 3.206.) Even if the burden might have
been on Uganda itoshow consent in the first instance, having
satisfied this requirement, the burden must shift back to the
DRCto show the lwithdrawalof consent givenearlier.
96. To this effect, the DRC argues that President Kabila's
"decree" of 27 July 1998 announcing the withdrawal of
Rwandan troops from Congolese territory constitutes the
requisite withdrawal of consent for the presence of Ugandan
troops. (DRCR, para. 3.207.) The slender reed for this
argument is President Kabila's statement at the conclusion of
the decree that: "This marks the end of the presence of al1
foreign militaryforces in the Congo." (DRCM, para. 2.11;Eng.
trans.) Uganda has already amply addressed the DRC's
argument based on this decree in the Counter-Memorial.
(UCM, paras. 43, 293-94.) Rather than reiterate points already
stated, Uganda will onlydeal with the issue here to the extent
necessary to refutenew elementsof the DRC's argument.
97. First, readingthe full 126wordsof the decree in context,
it is clear that these last 15words do not sweep as broadly as the
DRC would nour prefer, and that they in fact refer only to
Rwanda's armed forces. Thus, the very first line of the decree
announces that President Kabila terminated "the Rwandan
militarypresence which has assisted usduring the period of the
country's liberation." (DRCM,para. 2.11;Eng. trans.) Ina like
vein, thesecond line continues: "Throughthese military forces,
he would like to 1:hankal1the Rwandan people forthe solidarity
they have shown to date." (Ibid.) Nowhere in the text is either
Uganda or the UPDF mentioned. This is not accidental.
Indeed, the Repi'yitself describes President Kabila's 27 July
1998announcement in the followingwords: "Dèsson retour de
Cuba, il annonce ofSiciellement,le 27 juillet 1998, lafin de la
coopérationmilitaire avec le Rwanda et demande aux militaires
rwandais de regagner leur pays, tout en précisant que cela
marque la fin de la présence des troupes étrangères au~ongn."~~ (DRCR para. 2.27.) Thus, the DRC cannot now
maintain that this announcementpertained to Uganda, let alone
that it constituted a withdrawal of the DRC's forma1consent to
the limited presence of Ugandan forcesin the eastern border
region.
98. In fact, the Reply fails to show that any forma1action
was taken by the DRC Government to terminateher consent to
the presence of Ugandan troops in Congolese territory, up to
and including the time in mid-September 1998 when Uganda
introduced additional troops into eastern Congo. The Reply
cites no message, written or verbal, sent from the DRC
Governmentto Uganda terminating such consent. Nordoes the
Reply identify any forma1or diplornatic message sent by the
DRC to Uganda demanding the withdrawalof her forces from
eastern Congo. Thus, as the Reply acknowledges, as late as 21
August 1998, President Museveni, with reason, publicly stated
that the presence of "UPDF battalions in DRC behind Mount
Rwenzori, to combatADFand other lawlesselements," was "by
mutual understanding with President Kabila." (DRCR, para.
3.58.)
99. To be sure, the Reply cites public statements or speeches
by various DRC officiaisin August 1998that accuse Ugandaof
armed aggression, demand withdrawal of her forces from
Congo, and are otherwise inconsistent with anofficia1policy of
consenting to the limited presence of these forces. (See, e.g.,
DRCR, paras. 3.207-3.208.) Nevertheless, the DRC has failed
to show when, or even whether, her official consent to
Uganda's troop presencein the border region was formally
withdrawn.
100. In any event, by August 1998, the continuation of this
limited presence was vital to Uganda's security. With the
outbreak of the rebellion against President Kabila and his
government on 2 August, the collaboration betweenFAC units
30"ASsoon as he returned frornCuba, he offïcially annou27Julyon
1998,the end of military cooperation 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."that remained loyal to President Kabila and the ADF, the entry
into Congo of various foreign armies --some supporting the
DRC Government and others opposing it -- and the total
collapse of central administrative authority in the borderregion,
the security threat to Uganda that justified the presence of
Ugandan troops irieastern Congo since late 1997became much
worse.
101. As fighting erupted al1 around them, the three UPDF
battalions already in the DRC consolidated their positions and
defended themselves in some engagements with the combined
forces of the ADF and FAC. Some of those UPDF forces
which were already the DRC entered Bunia, only 30 km. from
the Ugandan border, without encountering any resistance, asthe
DRC acknowledges. (DRCR, para. 2.59.) The purpose,
according to President Museveni, as quoted in the Reply, was
"to preserve Ugandan security." (DRCR, para. 3.61 .) Under
these circumstances, the calls by various DRC officiais for
Uganda to withdraw her troops was itself a hostile act that
threatened Uganda's security.
102. As indicated, prior to the middle of September, Uganda
neither withdrewnor augmented her forcesin the DRC. By that
time, al1of the actions by Sudan in furtherance of her military
alliance with the DRC identified above were taken. (Supra,
para. 81.) Thus, while the DRC is unable to place a date on her
alleged withdrawal of consent for the presence of Ugandan
troops in eastern Congo, it is clear that by the time consent was
allegedly withdrawn, Uganda's military presence in the DRC
was absolutelyne:cessaryto her self-defence.
103. In his sworn testimony to the Porter Commission,
Uganda's Minister of Defence, Hon. Amama Mbabazi,
described the sequence of events leading to Uganda's 11
September 1998decision to send additional troops into eastern
Congo:
When the rebellion broke out, it spread
quickl.y. And altliough it broke out in the
east, the main fighting and attackcame from
the Westof Congo --from the port of Matabi side towards Kinshasa; and there were very
quick developments .... Then there was a
regional meeting --there was a summit on
this, then in quick succession, 1would say,
President Kabila flew into Khartoum and,
like his predecessor, forgedan alliance with
Khartoum tocome to his aid militarily.
So we, therefore, realised that there was
greater danger facing us from Congo than
we had originally envisaged, with the
coming in of the Sudan. There was
intensified supply of arms and deployment
of armed rebel groups -- Ugandan rebel
groups, some of whom had been trained in
Sudan and were flown into eastern Congo.
There was consistent supply mainlyfrom the
air, by the Sudan, of the ADF and a pro-Idi
Amin army or armed group that had now
been organised in northeastern Congo as
well. So it was obvious that we had a fight
at Our hands and we decided therefore, to
commit more troops into the situation in
Congo.
(URAnnex 65, Part B,p. 22.)
104. Uganda's successful military effort to drive the
Sudanese forces out of eastern and northeastern Congo, and to
arrest once and for al1the activities of the ADF and other anti-
Uganda insurgents operating in the area, was carried out
between September 1998and July 1999,climaxing in the battle
of Gbadolite, which sentthe Sudanese fleeing across the border
and out of the ~ar.~' By the end of July 1999, the DRC's
consent to the presence of Ugandan forcesin its territorieswas
again obtained, this timeas part of the Lusaka Agreement, more
fully discussed in paragraphs 213 to 226 below. Under the
31A description of the UPDF's military engagements with Sudanese and
other forces in eastern Congo during this period is prCoutzter- the
Memorial. (UCM, paras52-54.)provisions of that Agreement, the DRC agreed that Ugandan
forces would remain inplace in eastern Congo, until the "armed
groups" that had been attacking it from Congolese territory
were disarmed, demobilised, repatriated and rehabilitated.
(UCM Annex 45, para. 22.) Even then, the Agreement
provided that Ugandan troops would only be withdrawn
simultaneouslywith the withdrawalof al1other foreign forces in
the DRC. (Ibid., para. 1& Annex A, Ch. 4.)
105. The DRCI's consent to the continued presence of
Ugandan forces in eastern Congo was renewed again in the
bilateral agreement signed by the Heads of State of the DRC
and Uganda at Luanda, Angola on 6 September 2002: "The
Parties agree that the Ugandantroops shall remain on theslopes
of Mt. Ruwenzori until the Parties put in place security
mechanisms guaranteeingUganda's security, including training
and coordinated patrol of the border." (UR Annex84, Art. 1,
para. 4.) The implications of this agreement are discussed, as
well, in paragraphis229 and 233 below.
D. TheDRC'sFailureTo EstablishThatUganda
IntervenedMilitarilvInThe DRC PriorTo
Mid-September 1998
106. The core of the DRC's case is that Uganda invadedit on
2 August 1998. This thesis is repeated numerous times in the
Reply. (See, e.g., DRCR, paras. 0.03, 1.15, 1.41-1.42, 2.01-
2.02, 2.48, 2.97,3.184-3.185, 6.02, 6.47, 6.48.) It is critical to
the DRC's efforts to defeat Uganda's argumentthat her troops
were in Congo only in the exercise of heright to self-defence.
To succeed in this effort, the DRC must show, inter aliathat
Uganda invaded her territory before sufficient conditions
existed to justify Uganda's actions aslawful self-defence. In
other words, the DRC must show that Uganda attacked before
President Kabila's military alliance with Sudan and the anti-
Uganda insurgerits manifested itself into a serious threat to
Uganda's security.
107. The DRC:'sefforts inevitably fail, and the core of her
case is revealed as hollow. Try as she rnight, she cannot
perform alchemy on the facts. She cannot demonstrate thatUganda invadedthe DRC in August 1998when, in fact, this did
not happen.
(I) Ugandahad no role whatsoever inthe
rebellion of CongoleseArmy units on2
August 1998or thefailed coup d'état of
the same date
108. The war against President Kabila and his government
began on 2 August 1998 with the revolt of most of the FAC
units stationedin eastern Congo. (UCM,para. 45; DRCR, para.
2.28.) TheReply presents no proof of any kind that Uganda had
any involvement whatsoeverin thiswatershed event. Instead,it
resorts to a subterfuge that characterises the DRC's entire case
against Uganda: it treats Uganda as though it were
indistinguishablefrom Rwanda, and attributes to the former al1
of the actions taken (or allegedly taken) by the latter. This
reflects either an ignoranceof the relationship between Uganda
and Rwanda, including thefact that they had widely divergent
interests in the DRC, or a deliberate attempt to obscurethese
differences in order to sustain a bogus claim against the only
Statenow before theCourt on the merits.
109. To be sure, the Reply sets forth a plausible
circumstantial basis on which the DRC could speculate that
Rwanda (but notUganda) might havehad some involvementin,
or at least foreknowledge of, the FAC rebellion. As stated in
the Reply, "l'ensemble du haut commandement des FAC est, en
1998, alors entre les mains des oficiers rwandais. Ces cerniers
étaient chargés de la création d'une nouvelle armée
congolaise.. .."32 (DRCR, para. 2.19.) Rwandan Army units,
serving under these Rwandan officers "constituaient les forces
d'éliteet le noyau dur des Forces armées congolaise^, "s^^
well as "l'essentieldesforces de sécurité constituanlte cercle le
32"[iln1998the entire high command of theFAC winthe hands of
Rwandese officers. They were in chofforming a new Congolese
army...."
33
"constituted the elite force and the hard core of the Congolese Armed
Forces,"plus proche de Laurent-Désiré ~abila."~~(DRCR, para. 2.19 &
2.08.) The FAC'was formally headed by President Kabila
himself, but in fac:twas directed by its Chief of Staff, then Col.
(now Brigadier) James Kabarebe, a Rwandan Army officer.
110. This anomalous situation, in which the Congolese army
under President Kabila was directed and largely populated by
officers and soldi~ersof Rwanda, grew out of the 1996-97 war
that overthrew President Mobutu and brought President Kabila
to power. That war was directed by the Government of
Rwanda, and the fighting was led by thousands of Rwandan
troops under the command of Col. Kabarebe. (UR Annex 16.)
Upon their triurnphant arriva1 in Kinshasa, the army of
President Mobutu disintegrated,and the Rwandan soldiers filled
the military vacuum. They constituted the leadership and much
of the membership of the FAC until President Kabila expelled
them in July 1998.
111. According to the Reply, Col. Kabarebe, presumably
following orders from his superiors in Rwanda, betrayed
President Kabila sometime in mid-1998and set the stage for the
army rebellion against him:
[Ill est essentiel de décrireen quelques mots
la manière dont le colonel James Kabarebe
avait déployé les unités de l'armée
congo.laise dans les provinces frontalières
de ces deux pays [L'Ougandaet le Rwanda].
Ce déploiementa permis de concentrer dans
la région des troupes des FAC dont le
colonel Karbarebe [sic] étaitassuréqu'elles
se retourneraient contre les autorités de
Kinshasa, le moment venu.35
3"bthe majority of President Kabila's close security forces."
35"[Ilt is important t'odescribe the manner in which Col. James Kabarebe
deployed units of the Congolesearmy in the provinces whicli border these
two countrie[i.eLlgandaand Rwanda]. This deployment enabled Colonel
Kabarebe to concentrate FAC troops in the region in which he was sure
that they would turn against the Kinshasaauthorities, at an appropriate
moment." 116. In a strained attempt to connect Uganda to Col.
Kabarebe, the Reply includes the following statement: "Le
colonel Kabarebe est de nutionalité rwandaise mais, selon
certaines sources, il aurait des origines ougandaises et aurait
mêmeété'prêtép 'ar Yoweri Museveni à Kabila pour faire
fonction de chef d'état-majorpar intérim dela nouvelle armée
congolaise."36 (DRCR, para. 2.19.) Even the authors of the
Reply are too embarrassedto offer this entirely ridiculous rumor
as "fact," without hiding behind "certain sources"who are said
to have "alleged" it. They should stillbe ashamed for repeating
it because every DRC Government officia1 knows that Col.
Kabarebe is Rwandese, and that he was (and at al1 times
remained) a senior officer in the Rwandan Army. (See UR
Annex 16.) He had no connection of any kind to the Ugandan
Government or Army and so could not have been "lent" by
Uganda's Presideint.
117. Apart from publishing a false statement about Col.
Kabarebe's "conn~ection" to Uganda, the Reply contains nothing
at al1linking Uganda to the FAC rebellion of 2 August 1998.
Instead, and contrary to the reality on the ground, the Reply
blindly presumes that whatever Rwanda did or knew, Uganda
automatically did or knew the same. That this cannot constitute
evidence is too obvious to mention. Rwanda can speak for
herself about wh~atshe did or knew. Uganda, for her part,
affirms that she had absolutely no involvement in, and no
foreknowledge of any kind about, the FAC rebellion of August
1998.
118. Similarly, Uganda affirms that she had no involvement
in or foreknow1e:dgeabout the attempted coup d'étatagainst
President Kabila on 2-3 August 1998. There is no proof of any
kind to support the Reply's bald assertion that "l'Ouganda et le
Rwanda chargen:tle colonel Kabarebe de préparer un coup
d'Etat contre le1;lréside~tabila."~~(DRCR,para. 2.26.) Here
36"Colonel Kabarebi:is of Rwandesenationality but, accordingto certain
sources,hes of Uga.ndanorigin and is alleged to have been'lent'by Yowcri
Museveni to Kabila iiofil1the post of acting army commander of the new
Congolese army."
37
"Uganda and Rwanda instructedColonel Kabarebeto organize a coup
d'étatagainstesidirntKabila."again, the Reply is characterised by a propensity to conflate
Uganda and Rwanda, and to treat them as though they were
Siamesetwins,joined atthe hip, ratherthan two different States
with different interests andobjectives. Moreover, Uganda was
not ina position to give instructions to a senior Rwandan Army
officer. Nor was he likely to accept instructionsfrom a foreign
governmentor army.
119. Finally, the Reply itself concedes that the unsuccessful
coup d'état occurredwhen "des soldats tutsi congolais et
quelques soldats rwandais non encore rapatriésdéclenchent
des combats violents autour du palais présidentiel,à Kinshasa,
dans une tentativede renverser le Président ~abila."~~(DRCR,
para. 2.28.) No Ugandanswere implicated.
(2) Uganda did notparticipate inthe attack
on Kitona military base
120. A largesection of the Reply is devotedto trying to prove
Ugandaparticipated inan attack on the KitonaMilitary Base,in
western Congo, which allegedly began when an assault force
was airliftedto Kitona fromGoma,on the DRC'seasternborder
with Rwanda, on 4 August 1998. This is the Reply's principal
effort to show that Ugandan troops "invaded" Congo early in
the month of August. Notwithstanding al1the paper and ink
expended, the Reply fails completely to link Ugandan troops to
the attack on Kitona. In fact, no Ugandans participatedin this
attack.
121. The DRC'seffort to link Ugandato the events at Kitona
suffers, once again, from her tendencyto conflate Uganda and
Rwanda, andto suggestthat the actionsof Rwandawere equally
and automatically the actionsof Uganda. Of course, when the
question of imputability is at stake, the Court cannot afford to
be so casual. Put simply, Rwanda's actionscannot be imputed
to Uganda.
38"[Congolese Tutsi] soldiers and some Rwandese soldiers who had not yet
been repatriatedstarted fighting around the PresidentialPalace in Kinshasa,
in an attempt to overthrowPresident Kabila."122. Another general flaw in the Reply is its reliance on
periodical articles (and books byjournalists) that fail to identify
sources and that tlepend on multiple hearsay indistinguishable
from rumor and gossip. To be sure, the Reply presents the
statements of several purported eyewitnesses, including an
alleged Ugandan prisoner ofwar captured at or near Kitona.
However, as shown below, these "first-hand" statements are
patently incredible. Take, for example, the statement of the so-
called Ugandan E'OWnamed "Salim Byaruhanga." (DRCR,
para. 2.39.) No such person ever served in the UgandanArmy,
or in any other agency of the Ugandan Government; nor is such
a person known to the army or government. (UR Annex 107,
para. 12.) Thus, whoever "Salim Byaruhanga"is --if he exists
at al-- he is not a UgandanPOW.
(a) Thejournalistic "evidence"cited
in the Replv
123. Given the fact thatthese periodical articles, reports and
books were writt~vnby journalists who were not on the scene
and who do not claim to be eyewitnesses, but instead base their
accounts on unnamed sources of unknown reliability, it is no
wonder that the!, are plagued by egregious errors. A few
examples will suffice to demonstrate the problem. First, at
paragraph 2.42, the Reply cites Belgian journalist Colette
Braeckman for the proposition that theUPDF was represented
at Kitona by a battalion known as "NGURUMA." The
reference is incoiaprehensible to Uganda. There is simply no
such unit in the UPDF. (URAnnex 107,para. 18.)
124. To cite a second example, the DRC quotes French
academician Gérard Prunier forthe puiported fact that the
Ugandan troops who allegedly deployed on the "western front"
were "without dloubt" commanded by General Ivan Koreta.
Yet, General Koreta was not then and indeed never has been
deployed in the DRC. (UR Annex 107,paras. 14-17.)
125. As another example, the DRC relies yet again on Mr.
Prunier for the assertion that "a number" of Ugandans
participated in the attack on Kitona. (DRCR, para. 2.42.) The
DRC goes on to cite another source reporting that the AngolanArmy had captured "hundreds" ofUgandans, for whom the
Government of the United States was forced to intercede.
(Ibid., citing C. Braeckman.) Andthen, what started out as "a
number" of Ugandans in one source, and then multiplied into
"hundreds" ofprisoners in another, finallybecame a"thousand
captives in still another journalistic account proffered by the
DRC. (Ibid.,citing La lettre de l'océanindien.)
126. The exponential increase in the number of Ugandans
purportedly captured at Kitona, and the expansion of involved
parties to include Angola andthe United States, highlights the
caution with which the Court should receive al1 such
journalistic, and other third- fourth- or fifth-hand accounts. As
the Court observedin the Nicaragu~icase: "Widespreadreports
of a fact may prove on closer examination to derive from a
single source, andsuch reports, however numerous,will in such
casehave no greater value as evidencethanthe original source."
(ICJ Reports, 1986,p. 41, para. 63.) Surely, if there had been
"hundreds" or "thousands" of captured Ugandans, and if they
had been observed by the Angolan Army and the Government
of the United States, the DRC could have (and should be
required to have) produced more credible evidence of their
existence.
(b) The "first-hand" accounts
127. Like the inherently unreliable reporting on events the
authors did not even purport to witness, the so-called "first-
hand" information the DRC offers in connection with the
Kitona matter is woefully inadequate. A close analysis makes
clear that it is insufficientto impute to Uganda participationin
the attack.
128. Before addressing the individual statements,it is worth
noting, in assessing their value as "evidence," that they were
obtained by the DRC's notorious military intelligence service,
the Detection Militaire des Activités Anti-patrie("DEMIAP").
(See, e.g., DRCR Annexes 57-59.) According to the United
States Department of State, this security forceis known to have
committed "numerous, serious human rights abuses." (U.S.
Dept. of State, Human Right Practices for 1998: DemocraticRepublic of Corigo Country Report (Feb. 1999).) The
DEMIAP's methods were confirmed by Amnesty International:
"The security forces tortured unarmed civilians suspected of
supporting opposition forces or to settle old scores. Journalists
were particularly targeted. Methods included whippings and
beatings with belts or metal tubes. Conditions of detention
often amounted t:o cruel, inhuman or degrading treatment."
(AmnestyInternal'ionalReport 2002: Democratic Republic of
the Congo, p. 2.) Uganda questions whether any statements
extracted by an agency like the DEMIAP can be treated as
reliable evidence by the Court.
129. Even settiing aside the inherent credibility problems
associated with statements extracted by the DEMIAP, the first-
hand accounts offered by the DRC suffer from still other fatal
flaws. For example, the statement of one Issa Kisaka Kakule,
who purports to have been a member of the FAC's 10"'
Battalion, relates that he allegedly saw one battalion of
Ugandan troops a.tthe Goma airport preparing to go to Kitona,
although he fails itoprovide any dates. (DRCR Annex 59.) His
declaration refers to particular Ugandan officers by name and
states that he had previously fought alongside many of them in
the war to oust President Mobutu. The problem is that the
UPDF officers mentioned by Mr. Kakule do not exist. There
have never been any such officers (or enlisted personnel) in the
UPDF. (UR Aninex 107, paras. 5-8, 11.) Nor did the UPDF
participate in the war against President Mobutu. (Infra, paras.
162-66.) Plainly, Mr. Kakule's statement provides no basis for
the Court to find any facts.
130. The DRC also offers the statement of Commander
Mpele-Mpele, who says that he saw a group of foreign soldiers
at Kitona in early August 1998. (DRCR Annex 61 .) Among
the soldiershe cliumsto have observed were a group "diflérents
des autres ... un peu éloigné du groupe [qui] parlaient
~n~lais."~~(Ibid'.) He concludes that these "different" soldiers
must have been 'Ugandan, based noton any direct knowledge,
but because they were speakingEnglish. (Ibid.)
39"different from otti.kind of separate from the rest of the group and
spoke English." 131. CommanderMpele-Mpele's conclusionthat some of the
foreign soldiers at Kitona were Ugandans because they spoke
English is unsupportable. Ugandans are not the only ones in
East or Central Africa who speak English. In fact, hundredsof
thousands of Rwandans, including many contingentsof the
Rwandan Army, were born and raised as refugees in
anglophone countries, including Tanzaniaand Uganda, andnow
speak English rather than French. Rwanda's President,Paul
Kagame is an English-speaker, not a Francophone. Indeed,if
speaking English were conclusiveof Ugandan nationality,then
current DRC President Joseph Kabila would be Ugandan
because he grewup in exile in East Africa speaking English,not
French. (URAnnex47.)
132. The DRC also cites the statementof one JoséDubier, a
pilot, who allegedly flew Ugandan troops fromGoma to Kitona
in early August 1998. (DRCR, para. 2.35.) Yet, a careful
reading of Mr. Dubier's statement (taken under DEMIAP
watch) reveals no such facts. Mr. Dubier claims only to have
seen Ugandans at a hotel in Goma when the 2 August 1998
rebellion broke out, but specifically Statesthat that he does not
know whether any Ugandans wereamong the troops he ferried
to Kitona. (DRCR Annex 59.) Moreover, Mr.Dubier does not
state how he was able to differentiate the Ugandans he
purportedly saw in the Goma hotel from any Rwandans who
might have been there. Given that so many Rwandan soldiers
are primarily English speakers, languagealone could not have
helped him distinguish one from the other. The Court is thus
left to take his statement on faith, not facts. However, Mr.
Dubier's eagerness to please his DEMIAP interrogators makes
it difficult to trust his objectivity and independence: "Mon
souci est que ... les aggresseurs rentrent chez eux car c'est une
guerre injuste. Quela communautéintenzationale pointe une
fois pour foute du doigt les véritablescoupables."40 Whatever
this statement represents, it is not the testimony of an unbiased
witness.
40"My wish is th..the aggressors go btoktheir countrforit is an
unjust war. That the international community point a finger once and for al1
at the real culprits."133. The last purported first-hand account of the Kitona
operation offered by the DRC is the statement of one Viala
Mbeang'Ilwa. (DRCR Annex 62.) Mr. Mbeang'Ilwa claimsto
be a pilot whose plane was commandeered to fly Ugandan and
Rwandan troops firomGoma to Kitona on2 August 1998. Like
the other statemeritscited in the Reply,however, it provides no
credible basis for imputing to Uganda responsibility for the
attack on Kitona.
134. The witness is obviously confused aboutthe nationality
of the troops he allegedly flew to Kitona. In the first paragraph
of his statement,tierefers to Rwandan, Ugandan and Burundian
"aggressors." Yeti,the alleged Burundians never reappear in his
narrative (nor in any of the other statements). If he cannot keep
his story straight about the Burundians, hisstatements about the
alleged Ugandans cannot be credited either. Moreover, the
statement is replete withdistinctly non-factual slurs that negate
the witness' impartiality and objectivity. For example, in
referring to the types of planes used in the operation, he states:
"Pour cette sale bésogne[sic], les agresseurs disposaient le
type d'apareils suivant.. ..941 Sirnilarly, Mr. Mbeang'Ilwa
demands of "ces malfaiteurs un dédommagement de
$1.500.000."~~ These passages reveal more about the
declarant's motiv;ationsthan the events that actually tookplace.
135. Finally, Mr. Mbeang'Ilwa claimsto know that some of
the troops were Ugandan because, while drinking beer with
him, they told hiimal1about their secret military plans (i.e., to
topple the Congolese Governmentwithin ten days). This gives
new meaning to the word "absurd." What army, worthy of the
name, blithely sh,aresits most sensitivemilitarybattle plans and
political objectives over beer with a complete stranger,let alone
a captured pilot from an "enemy" State hijacked at gun-point?
Certainly not Uganda's. Mr. Mbeang'Ilwa's statement is so far-
fetched that it carinotserve as a basis for imputing responsibility
to Uganda.
41"Forthisdirtytypeofjob, the aggressorshadthefollowingtypesof
planes..."
42"thesewrongdoercd;amagesworth $1,500,000."136. The final "witness" tendered by the DRC is Hon.
Aggrey Awori, a well-known opposition politician in Uganda
with strong anti-governmentbiases. His press statements about
an alleged visit with UgandanPOWs in the DRC were nothing
more than an exercise in creative politicking, designed to shore
up his failing presidentialelection campaign against incumbent
President Museveniby embarrassing the Ugandan Government
and the Presidentin particular. (UR Annex 45.)
137. There can be no other explanation for Mr. Awori's
public declaration in Kampala that the DRC held not one
Ugandan POW, but one hundred forty-three Ugandan POWs.
According to a contemporaneous accountof Mr. Awori's press
conference:
Presidential aspirantAggrey Awori arrived
in the country yesterday and officially
announced his candidature for the 2001
presidential elections.
Addressing a press conference at the
International Conference Centre later in the
afternoon, Awori, alsoMP for Samia Bugwe
North, revealed that during his three month
stay in the USA, [he] traveled to Congo and
established that 143 Ugandan soldiers are
being held captive by the Kabila
government.
"1visited Congo and met President Kabila.
1 was shocked to find 143 Ugandan
prisoners of war being held captive in
Congo. 1have evidence here", Awori said
showing pictures which he said he took
while in Congo.
(Ibid.)
138. In fact, this was a total fabrication. There were no
Ugandan prisonersof war held by the DRC then, or at any other
time. Upon examination of the photographs tendered by Mr.
Awori, the Government of Uganda confirmed, and herebyreaffirms, that noxieof the individuals depicted in them were
Ugandan soldiers; nor were they otherwise known to the
Ugandan Governnient orArmy.
139.
The Replyneglects to mention that Mr. Awori,its "star"
witness, claimed itherewere 143 Ugandan POWs in the DRC
(exactly 142 more than the number claimed by the DRC
herself). This is understandable. Mr. Awori might just as well
have claimed he saw flying saucers, for a11his statement
revealed about his credibility. Moreover,even the one Ugandan
POW the DRC claims Mr. Awori visited, the alleged Salim
Byaruhanga, is orle more than there actually were. The UPDF
did not then and cloesnot now have a soldier in its ranks by the
name of Salim Bjraruhanga. (UR Annex 107,para. 12.) Thus,
the POW Mr. Awori allegedly visited is a figment of
somebody's imagination.
140. Nevertheless, the DRC asserts that Mr. Awori
videotaped his visit with "Mr. Byaruhanga" so he could present
evidence of the captured prisoner to the Ugandan Parliament.
(DRCR, para. 2.39.) Yet,the DRC nowhere suggests that Mr.
Awori ever preisented a video or other evidence of his
"findings" to theParliament or to anyone else. In fact, he did
not. Although he announced in Uganda that he had tapes of
conversations with Ugandan POWs in the DRC, he repeatedly
refused al1 requests -- from Ugandan Government and
opposition sources alike--to produce them. Surely, if the facts
had been as he alleged, he -- and more importantly the DRC --
would have (and should be expected to have) come up with
more than a statement about a fictitious interview with a non-
existent Ugandan soldier.
141. Uganda's Ambassador to the DRC, Dr. Bataringaya, has
further confirmed that there were no Ugandan soldiers taken
prisoner atKitona or elsewhere in August 1998:
23. 'Thatit has come to my attention that
the DRC claims to have captured
Ugandan soldiers who allegedly
lparticipatedin the attack launched by
:Rwanda in Western Congo in early August 1998. As Uganda's
Ambassadorto the DRC at the time, it
was my duty to know about al1 such
matters.
24. That there were no Ugandan military
prisoners taken at the time of
Rwanda's early August push towards
Kinshasa. The only Ugandans of
which 1 am aware who were made
prisoner at the time weretwo Ugandan
busine~smen.~~ But these were
categorically not Ugandan military
personnel.
(UR Annex 87,paras. 23-24.)
(c) The alleaed "Ugandan" tank
142. The DRC claims to have seised an abandoned tank used
in the Kitona attack. The Reply alleges the tank is Ugandan
because it is the same mode1as a tank used later by Congolese
rebel leader Jean-PierreBemba, who allegedly received his tank
from Uganda. (DRCR,para. 2.40.)
143. The tank allegedly seised by the DRC near Kitona is
not, and cannot be, Ugandan, because Uganda did not
participate in the Kitona attack. The tank, if it exists, might
very well be similar to one used by Jean-Pierre Bemba, or to
tanks maintainedby the UPDF in Uganda. If so, itis similar to
the tanks that belong to the Rwandan Army and to tanks
belonging to the DRC. Neither Uganda, Rwanda nor theDRC
manufactures their own tanks. Al1purchase their tanks from
abroad, and al1have purchased T-55 tanks from Russia. Thus,
the "discovery" ofa T-55 tank near Kitonaconstitutesno proof
whatsoever against Uganda. It isjust as likely to have belonged
33
The correspondence from the International Cornmittee of the Red Cross
(ICRC) cited in thely,which speaks of "Ugandan nationals" and
"Ugandan citizens" held prisoner in the DRC, relates to these civilians. The
ICRC correspondence nowhereefers to the Ugandans as soldiers or military
personnel. (DRCR Annex 67.)to Rwanda, the DRC, or even to the DRC's allies, Angola or
Zimbabwe, who also sent troops (and tanks) into the DRC, and
who also acquired tanks fromRussia.
144. Jean-Pierre Bemba, whois cited by the DRC throughout
the Reply as an authoritative source on Uganda's rnilitary
activities in Congo, confirms that the Kitona operation was
strictly a Rwandainand Congolese rebel affair. In his book, he
writes:
En août 1998, une partie des ex-FAZ
cantonnés à Kitona assiste à l'atterrissage
d'un boeing de la compagnie privée Congo
Airlines. Cent trente commarzdos rwandais
et une vingtaine de Congolaisneutralisent la
base militaire. Deuxjours plus tard, unpont
aérien s'organise entre Goma et le Bas-
Congo ... 'entréeen scène inattendue des
troupes angolaises et zimbabwéennesruine
les espoirs rwandais. Le colonel James
Kabarebe qui a conçu toute l'opération
décide de dérocherde Kinshasa et du Bas-
Congo1 ...es troupes rwandaises et leurs
alliés congolais passeront trois mois dansle
maqui,sangolais. 44
(UR Annex 46, .p.25.) Mr. Bemba's consistent reference to
Rwandan and Coingolesesoldiers, and hisconspicuous failureto
mention Uganda., confirm what Uganda has declared to the
Court: thatshe hiadno participation inthe Kitona attack.
44"In August1998,some EX FAZ at Kitona assisted in the landing of a
Boeing belonging to arivate Congolese Companyairline. One hundred and
thirty 30) Rwandesecommandos and about 20 Congolese neutralised the
military base. Two clayslater, an aerial link was set up between Goma and
lower Congo... he iinexpected arriva1of Angolan and Zimbabwean troops
ruined the hopes of the Rwandese. Colonel James Kabarebe, who had
planned the whole operation, decided to withdraw frorn Kinshasa and lower
Congo ..The Rwandan troops and their Congolese allies spent three months
in the Angolabush." (3) Uganda didnotparticipate inthe attack
on Kindu
145. Curiously, the DRC devotes considerable energy
attempting to show that Uganda participated in the effort to
capture the town of Kindu in October 1998. (DRCR, paras.
2.49-2.53.) The reasons for the DRC's rhetorical investment
are not entirely clear. Because Kindu fell in October 1998 -- a
fact admitted by the DRC (DRCR, para. 2.50) -- the relevant
events occurred long after the necessary conditions existed to
justify Uganda's self-defence.
146. As best Uganda can determine, the DRC's effortswith
respect to Kindu appear intended to show that Uganda was
deployed in the south of the Congo, and thus that she was
interested in morethan securing key strategic sitesadjacent to
her own border. Yet,inthe end, the DRC's discussionof Kindu
is an exercise in futility. As she hasalways maintained, Uganda
was not there. (UCM,para. 261 .)
147. Uganda observes in the first instance that theDRC's
contentions concerning Kindu are based largelyon inference
and conjecture. According to the DRC, the UPDF must have
been therebecause an attackon Kindu"s'inscritdans la logique
de la stratégieougandaise ..."4"~~~~, para. 2.51.) It goes
without saying, of course, that such supposition is insufficient
to impute responsibilityto Uganda for anything that took place
at Kindu.
148. Uganda also notes that the DRC has not offered
evidence from any of her military personnel who can claim to
have seen UPDF soldiers in the area of Kindu. The FAC
convened a special Congolese Military Commission in
November andDecember 2001, specifically for the purpose of
gathering facts for this case. (See DRCR Annex 46.)
According to the minutesof what appears tohave been the first
session: "GénéralKAYEMBEavait précisé à l'intention de
L'assemblée que ces diflirentes scéancesde travail avaient pour
but d'étayerla thèse du Gouvernement de la RDC devant la
35"isinline with tlogic of Uganda's stra..."cour internationale de Justice de la HAYE dans l'a-aire
1'opposant à 1'Ouganda.. ."46 (Ibid.) Nevertheless, the DRC
has not brought forth a single member of those working
sessions to attest to the presence of Ugandan forces at Kindu.
The best it can do is the testimony of one Oleko Yemba who
stated only "h~lous apprendrons que deux bataillons
Ougandais avec une colonne des chars et des éléments rebelles
congolais avec h leur t2te le Major NGIZO étaient en
progression vers KIN DU."^ (^RCR Annex 58; emphasis
added.) Thus, the "witness" admitted having no personal
knowledge. But not only is this would-befact based on hearsay
of the most obvious kind, it contains no hint that Ugandan
troops ever actualllyarrived in Kindu. Moreover, there is not
and never has been a UPDF officer named "Ngizo." (UR
Annex 107, para. 9.) Under the circumstances, this statement
cannot be taken seriously.
149. The only other so-called evidence the DRC offers is a
statement of one Tshomba Fariala, a Congolese shop-owner.
(DRCR, para. 2.52.) Butthis statement too is unreliable. First,
like mostof the other "witness" statements offered by the DRC,
this statementwa!rtaken under the watchful eye of the notorious
DEMIAP. (DRCR Annex 60.) Second, the DRC's
characterisation of the statement and the statement itselfare
sharply inconsistent. The DRC appears to make up facts that
arejust not in the textof the document itself. (Compare DRCR,
para. 2.52 with DRCR Annex 60.) Thus, while the Replyrefers
to Mr. Fariala as providinghotel accommodationsto Ugandans,
and to Ugandanc;eating in his restaurant, his statement says
nothing of the sort. (Ibid.) Nor, unlike the Reply,does the
statement Say ainything about Ugandans staying behind to
protect the portaridairport in Kindu. (Ibid.)
46 "General KAYEhIBE informedthe assernblythat the different working
sessionsare meantto discuss the preparation of evidenceto back the
Governmentof theRC's claim in the InternationalCourt of Justice ofthe
Hague in the case between theDRC and Uga.."..
47"[wle learnt that two Ugandan Battalionswith a column of tanks and
Congoleserebels underMajor NGIZO wereadvancing towardsKINDU." 150. Mr. Fariala's statement,as recorded by the DEMIAP,
does allege that "Ugandans" confided to him their confidential
strategic plans to overthrow the DRC Government. In this
regard, the statement is suspiciously similar to --and just as
incredible as -- the one attributed to pilot Viala Mbeang'Ilwa.
(See supra, paras. 133-35.) Both statements would have the
Court believe the unlikely proposition that the UPDF
voluntarily disclosed classifiednational security informationof
the most sensitive order to a native shop-keeper (or a hijacked
pilot) in hostile territory. Such patently dubious testimonies
cannot overcome Uganda'sdenial of herpresence in Kindu.
151. In any event, by the DRC's own admission, this didnot
occur in August 1998,but in October. Hence, the allegations
concerning Kindu cannot support the DRC's thesis that
Ugandan troops "invaded" the DRC in August, before the
threats to Uganda's securityjustified her military intervention.
Ugundudid not send troops intothe DRC
(4)
inAugust 1998
152. Another element in the DRC's strained effort to
establish a "Ugandan invasion"in August 1998is the allegation
that Uganda sent additional troops into eastern Congo during
that month. This is false. The only Ugandan troopsin theDRC
at the time were the three UPDF battalions that had been
stationed across the border, with the Congolese Government's
consent, since September 1997. Uganda sent no new troops
into the DRC in August 1998.
153. The DRC's allegations are not even borne out by the
"evidence" relied on by the Reply. At paragraph 2.55, for
example, the DRC contends: "Après la rebellion de la 10'""
Brigade des FAC, une colonne de 1'UPDFcomposée de chars
et d'autres véhicules aen efSetpénktrésur le territoire de la
RCD par le postefrontalier de Kasindi, situéau sud-est de la
province du Nord-Kivu. Cette colonrzeafait mouvement versla
ville de Beni, chef-lieu du territoire de ~eni."~' Yet, the
48"After the rebellion o10lbrigadeoftheFAC, a group oUPDF made
of military tanks and other vehicles entered theritory by thesupposed evidence for these allegations, the statement of
Commander Mwi~nbaNeliangwe, says no such thing. (DRCR
Annex 53, p. 4.) 'Thereis absolutely no mention of any border
crossing in August, or at any other date, in this statement.
(Ibid.)
154. Similarly, the DRC argues at paragraph 2.60 of the
Reply that "[ulne fois la ville de Bunia conquise, d'autres
contingents de Z'IIPDF ont pénétrél,e 13 août 1998 vers 16
heures, sur le territoire du Congo au nord-est de Bunia par le
poste frontalier d'~ru."~~ This time, the DRC cites three
different annexes as supporting these so-called facts. (DRCR
Annexes 48, 51!, 53.) However, none of the referenced
statements mentions anything about "other contingents of the
UPDF" penetratinigCongolese territory through the Am border
post (or any other location) at any time. (Ibid.) As indicated at
paragraph 101 above, one of the UPDF battalions thatwas long
stationed in the DRC redeployed to Bunia on 13 August 1998
"without fighting.." (DRCR, para. 2.59.) However, there was
no border crossing by Ugandan troops at Aru or any other
location.
155. Thus, theire is no evidence whatsoever that Ugandan
forces entered the DRC in August 1998. There is nothing in the
Reply, or any of the earlier pleadings filed by the DRC, that
contradicts Uganda's affirmation and evidence that she did not
send her armed forces into Congo until mid-September 1998.
In particular, the documentationof the UPDF High Command's
decision to send 1:roopsinto the DRC dated 11September 1998
(UCM, para. 53 tSzAnnex 27) constitutes irrefutable proof that
Uganda's actionsin the DRC were undertaken long after the
rebellion against the Congolese Government had broken out in
August (without Ugandan participation) and only after it had
become clear that Uganda's security was seriously and
irnminentlyat risk.
- - - - - - - - - - -
Kasindi border post, which is situated in North Kivu Province. This group
moved towards Beni, the capital of Beni territory."
49 "[olnce Bunia haclbeen conquered other contingents of tUPDF
penetrated on 3thAnigust 1998 towards 16.00 hours, Congo's territory to the
northeast ofBunia through the Aru border post." (5) Ugundadid lzotparticipate in the
formation of the RCD
156. The last element offered by the DRC as "proof" of
Uganda's early intervention against theCongolese Government
is the allegation that Uganda, along with Rwanda,created the
rebel organisation known as the Congolese Rally for
Democracy ("RCD"). (DRCR,paras. 2.108,2.130.) Yet again,
however, the Reply (and the third-hand sources it quotes)
suffers from the tendency toconflate the activities ofRwanda
and Uganda. Whatever role Rwanda mayor may not have had
in the formation of the RCD, Uganda was not involved. As
Uganda has already amply demonstrated, she was not involved
in planning or executing the August 1998rebellion, and did not
supplement her troops in the DRC until mid-September.
(Supra, paras.87, 101-03, 108-19.) She was thus in no position
to assist in the creation of an interna1 Congolese opposition
force.
157. As elaborated further below, it was only after the
rebellion had broken out and after the RCD had been created
that Uganda began to interact with theRCD, and even then,
Uganda's relationship with theRCD was strictly political until
after the middle of September 1998. (Infra,paras. 183-92.)
Thus, Minister of State for Defence Amama Mbabazi testified
to the PorterCommission:
Lead Counsel:
Are you aware if we gave anyactive support
to the RCD rebels during our stay in the
Congo?
Amama Mbabazi:
Subsequently.
Lead Counsel:
Subsequently? AmamaMbabazi:
Yeah.
Lead Counsel:
What vvouldbe the nature of that support we
gave?
Amama Mbabazi:
Well, immediately after the rebellion broke
out, as 1 said, the region tried to find an
answer -- tried to resolve the problem. So
meetings were held and we helped the RCD
in the process of negotiations:1 mean, on
positions that were being presented, on ...;
giving them technical expertise in these
areas -- in the field of negotiations. Of
course, subsequently, they also developed
internad strife and we tried to bring them
together; and, as you know of course, they
eventually....
Justice Porter:
What Mr. Shonubi is specifically trying to
ask you is whether any military assistance
was given to the RCD. 1s that right Mr.
Shonubi?
Lead Counsel:
That is correct, My Lord.
AmamaMbabazi:
Oh! Not atthe beginning, no.
(UR Annex 65, Part B, pp. 24-25.) From this, at least two
things are clear. First, Uganda's initial interaction with the
RCD was political only, not military, and was intended topromote a negotiated political solution to thecrisis in the DRC.
Second, when Uganda began to counsel the RCD to seek a
political solution, the organisation was already inexistence;
Uganda had norole in its creation.
158. The Reply cites only journalistic sources in supportof its
allegation that Uganda created the RCD. (See, e.g., DRCR,
para. 2.130.) Based on nothing more than these dubious
"authorities," the DRC asserts that the RCD had a joint high
command made up of Ugandans, Rwandans and Congolese,
under the leadership of the UPDF Chief ofStaff. (DRCR, para.
2.108.) Typically, the journalists who published this statement
failed to identify theirsource or any other facts on which it
could be supported. Nor did they report when the so-called
"joint high command"came into existence, i.e., during August
1998or later. In any event, Ugandadenies any knowledgeof or
participation in any such "joint high command," if it existed at
all.
159. The Reply also cites a journalistic source for the
proposition that"[dlès le début de lamutinerie d'unepartie de
l'armée congolaise, le 2 août, les mutins et leurs parrains
rwandais et ougandais se sont mis à la recherche de
personnalités suceptiblesde civiliser et de 'congoliser'le coup
deforce."50 (DRCR, para.2.130.) Citing the same source, the
Reply alleges that the RCD was created to "servir de nouvelle
vitrine politique aux militaires tutsis età leurs alliésrwando-
ougandais."" (Ibid.) No underlying factsof any substanceare
provided in supportof these bald assertions, which constitute
nothing more than the opinions of the authors, who themselves
are of unknown partisanship or interest. The usual cautions
associated with journalistic reports apply with extra force to
such conclusorystatements.
50"[rlight from the beginning of the mutiny which wasstaged by a section of
the Congolese army on" August, the mutineers and their Rwandese and
Ugandan godfathers started looking for people whocould make thepeople
accept the mutiny andCongolise it."
51
"serve as a new political opening to the [Congolese Tutsis] soldiers and
their Rwanda-Ugandan allies."160. Finally, the DRC and her sources again demonstrate an
incurable affliction for conflating Rwanda and Uganda, and for
assuming that whatever Rwanda did, Uganda necessarily
followed along in lockstep. There is nothing in the "evidence"
presented by the DRC, however, to justify such a presumption.
With respect to the particular allegation thatUganda created the
RCD, Uganda has shown thatshe did not participate in the FAC
rebellion of August 1998 or send her troops into Congo at that
time. (Supra, paras. 87, 101-03, 108-19.) She thus had no need
to find "cover" for a then non-existent intervention, and no
motive for creatirig the RCD. In short, the DRC's unreliable
journalisticsourci:s (which do not merit the label "evidence")
cannot overcome Uganda's denial of participation in the
creation of the RCID.
E. The DRC'sFailureTo EstablishA Motive
ForUaanda'sMilitarvPresenceIn TheDRC
OtherThan Self-Defence
161. In an effort to rebut Uganda's showingthat she deployed
additional troops in the DRC only for the purposes of self-
defence, the Reply makes a considerable effort to show that
Uganda hadother motives forher actions. The DRC argues, for
example, that Uganda's actions were motivatedby a desire to
dictate the course of Congolese affairs, or to "exploit" the
DRC's natural wealth, or even just because Ugandan President
Museveni had grown personally displeased with President
Kabila. (DRCR.,paras. 2.08-2.15.) The DRC's efforts are,
however, deeply flawed, not least bythe ever-present tendency
to "lump" Uganda and Rwanda together andview them as one.
In fact, nothing in the Reply shows that Uganda's intervention
in the DRC was motivated by anything other than the
determination that such action was necessary to defend herself
against greviousand imminent threatsto her security.
162. The Reply's contention that Uganda moved into the
DRC for political reasons hinges on the argument that Uganda
participated militarily in the 1996-97 war to overthrow
President Mobutu. The DRC seeks to use this would-be fact as
"proof' of Uganda's willingness to use force to determine the
course of Congolese domestic affairs, and to establish thatUganda was somehow accustomed to viewing President
Kabila's regime as an instrumentality of the Ugandan State.
This theoretical argumentabout Uganda's motivesis thoroughly
contradictedby the facts.
163. Indeed, the evidence shows that Uganda deliberately
declined to intercede militarily when Mr. Kabila's AFDL
movement, backed bythe Rwandan Patriotic Army,rose up in
arms against President Mobutu. (See UCM, para. 27 & Annex
2 .) While Uganda offered moral support to the AFDL, and
while she was not unhappy to see President Mobutu leave the
scene, she refused to use her military as an instrument for
affecting the interna1 affairs of another State. Indeed, the
evidence shows that President Museveni, far from favoringa
military solution to the problems in Congo, counseled Mr.
Kabila to negotiate a political solution withPresident Mobutu.
Mr. Kabila rejected President Museveni'sadvice and, with the
full rnilitary backing of Rwanda, brought down the Mobutu
government. (UCMAnnex 2 1;UR Annex46, pp. 101, 102.)
164. Uganda's non-participation in the war against President
Mobutu is confirmed by numerous witnesses with direct
knowledge. For example, in his sworn testimony before the
Porter Commission, Hon. StephenKavuma, Uganda's Minister
of Statefor Defenceduringthe period inqustionstated:
Yes, My Lords, 1want to be very clear on
this[.] 1 talked about, Uganda being
interested in a stable Zaire at [the] time [of
the AFDL rebellion]. What 1want to make
absolutely clear is that Our support was
moral, was moral at that stage. It was not
involving troops going to actively
participate in the changes that removed
Mobutu[.] But we morally would support
forces which wanted to see positive change
taking place, specially if they would result
intothe stable Zaire that wouldcease to be a
source of problems to Zaire itself and the
region includingZaire's neighbours.(UR Annex 59, Part F, p. 4.)
165. These facts were confirmed by three other witnesses (1)
Hon. Amama Mbabazi, Uganda's current Minister of State for
Defence; (2) Dr.. Kamanda Bataringaya, then and current
Ambassador to the DRC, and (3) Lt. Col. Andrew Lutaya
Lugobe, the sole Ugandan soldier who participated in the war
against President Mobutu. (Lt. Col. Lugobe had been sent by
Uganda toRwanda to assist with anti-smuggling operations. He
participated in the anti-Mobutustruggle at the specific request
of Rwanda's then-Vice President and Ministerof Defence and
current President :PaulKagame.) For the sake of brevity, rather
than quote those statements here, Uganda simply refers the
Court to the attached Annexes. (See UR Annex 65, Part A, p.
15;UR Annex 66.,pp. 1-5;UR Annex 61,pp. 4-5.)
166. If any additional confirmation wererequired, it has been
provided by no less an authority than President Kagame of
Rwanda. In an interview given to the Washington Post in July
1997, shortly al'ter the installation of Laurent Kabila as
President of the DRC, President Kagame:
acknowledged for the first time his country's
key r~olein the overthrow of president
Mobutu Ssese Seko in neighboring Congo,
saying that the Rwandan government
p1anne:d and directed the rebellion that
toppled the longtime dictator and that
Rwandan troops and officers led the rebel
forces.
...Kagame's account suggests that the war,
which began in the eastern Congo near the
borders of Rwanda and Uganda, was
p1anni:dprimarily by Rwanda and that the
plan tloremove Mobutu originated in Kigali
as welil. [Rwanda's] third goal was broader --
toppling Mobutu. Kagame said, "it would
have been more suitable" if Congolese
rebels had done most of the fighting against
Mobutu's troops,but it also would have been
riskier.
"1 don't think they were fullyprepared to
carry it out alone," he said. "We did
continue to take some role because we
thought doing it halfway would be very
dangerous. We found the best way was to
take it to the end." The Rwandans were
backed in this final aim by Angola, which
also contributed troops and arms to the
rebels and pushed the rebels to take
Kinshasa.
(UR Annex 16.)
167. Unlike Rwanda, Uganda did not help put President
Kabila in power. She thus never had reason to count on "la
docilité et la gratitude du nouveau président congolais."52
(DRCR, para. 2.08.) Nor did Uganda follow Rwanda's lead in
establishing, leading and filling the ranks of the DRC's new
army. (Supra, paras. 109-10.) No UPDF officers or enlisted
men served in the FAC, nor did Ugandamanifest an interest in
involving herself in the FAC or in other internal Congolese
matters. Accordingly,the DRC has not shownthat Ugandahad
either motive or inclination to exercise political or military
domination over President Kabila and his government. Put
simply, the DRC has failedutterly to support herargument that
Uganda decided to intervene in Congolese internal affairs
because she could not tolerate President Kabila's
"independence."
168. Likewise, the DRC has failed to show that Uganda sent
her troops into eastern Congo in September 1998because of
President Museveni's personal pique with his Congolese
52"the docility and gratefulness of the new Congolese president."counterpart. (DRCR, paras. 2.12-2.15.) Indeed the mere
suggestion in the Reply that Uganda's President took the
momentous decisiion to go to war and to risk the lives of
thousands of UPDF soldiers over a persona1 squabble with
President Kabila js contemptible, and merits no response. As
amply demonstrated in the Counter-Memorial, and reiterated
above, it was only when President Kabila licenced Sudan to
station troops and occupy al1 major airfields in eastern and
northeastern Congo, and to step up support for the ADF and
other insurgent groups attacking Uganda, that President
Museveni and the UPDF high command took the difficult
decision to cross into the DRC and drive the Sudanese out of
that country. (UCM, paras. 38,52; supra, para. 87.)
169. Uganda's demonstrated needto act in self-defence in the
face of the seriious threat to her security posed by the
DRC/Sudan/ADF military alliance also negates the DRC's
argument that Uganda's actions were driven by economic
interests. This a.rgumentis refuted at length in Chapter IV,
infra. As shown therein, the DRC's daim of "economic
exploitation" by IJganda is nothing more than a post hoc effort
to distract the Court from the simplefact that Uganda's oneand
only interest in sending her troops into Congo was defence of
her security.
170. In addition to attributing to Uganda non-existent
motivations for her rnilitary intervention in eastern Congo, the
DRC falsely labels Uganda's presence there an "occupation."
(See, e.g., DRCR paras. 2.77-2.85.) But the notion of a
Ugandan occupat.ionis manifestly absurd. At the height of its
deployment in the DRC, the UPDF maintained fewer than
10,000soldiers irthat country.53 (SeeUR Annex 60, Part A, p.
17-18 & Part B, p. 1.) These were confined to the regions of
eastern Congo adjacent to the Uganda border andto designated
''The absurdity o10,000Ugandan troops "occupying" the DRC is
highlighted in the Annexes the DRC has appended tReply.The All
Party Parliamentary Group on the Great Lakes and Genocide Prevention
Report,Visitto Democraticof the Congo2n- 6thAugust 2001(DRCR
Annex 75), States: "Given the vast size of the DRC, if the UN deployed the
same density of trooips-to-landas inKosovo, it would requi10
millionUN peacekeepers!"(Ibid.p.3;emphasis added.)strategic locations,especially airfields, from which Uganda was
vulnerable to attack by the DRC and her allies, especially
Sudan.
171. Compared to other foreign forces in the DRC, the
UPDF7s presence was minimal. According to MONUC,'~
Uganda actually had the fourth largest contingent of foreign
troops in the DRC, far behind Rwanda (which had 23,400
soldiers in Congo), Zimbabwe and Angola, the last two of
which were allies of the DRC Government. (UR Annex 90.)
Uganda's troop presence also paled by comparison to the
Congolese rebel organisations that came to exercise control
over eastern Congo. According to the Reply, Jean-Pierre
Bemba7s Mouvement pour la Liberation du Congo ("MLC")
had 33 battalions (more than 25,000troops) under its command.
(DRCR,para. 2.114.)
172. Under the best ofcircumstances, it would, of course, be
impossible forsuch a small contingent of Ugandansoldiers to
"occ~py'~ aregion roughlythe sizeof Germany (andthe densely
forested, virtually roadless andcompletely undeveloped eastern
Congo hardly presentedthe "best of circumstances").
173. Uganda's limited military presencein the DRC was
explained by Hon. Stephen Kavuma in his sworn testimony to
the Porter Commission:
JusticePorter:
Can weturnthis theother way round? When
the UPDF went into the Congo, to deal with
this security problem, they must havehad
some limits. You don't go further than so
and so. 1 can't believe that Uganda would
send armed troops into another country
without some sort of limit. So, what was the
limit?
54"MONUC" is the UnitedNations ObserverMission in the DRC. It was
createdy the U.N.Security CouncilinAugu1999to help implement and
monitorcompliance with theLusaka Agreement.Mr.Kavuma:
My Lords, when the troops went to the
Congo, they were primarily interested in
controlling the areas from where trouble was
emanating to come to Uganda. And these
were close to Our borders. But then the
situation kept on developing, where
information was coming in, as to the
possibility of other sources of trouble,
further from the border could cause
probleins to this country. My Lords,
commi~nicationis a matter of great difficulty
in this part of theDRC, but there are many
airfielcls scattered al1 over the place, and
information kept coming, that forces that
were 1.roublingUganda were intending to
use tlhese airfields, to prosecute their
intentions against this country, so troops
kept nioving further and further from their
original positions, near the borders with
Uganda.
JusticePorter:
So,there was no limit?
Mr.Kavuma:
My Lords, 1think the limit was now being
deterniined by the areas where assessment
had be:enmade that....
Justice Porter:
By the troops on the ground? By the senior
commianderson the ground?
Mr.Kavuma:
By the security system,My Lords, that more
areas further from the border positions from where the troops originally were, had
become potential threatsto this country, and
in some cases actual threats to this country.
Having secured these sites, the nature of
Ugandandeployment changed with Lusaka.
(URAnnex 59, Part A,pp. 17-18.)
174. Similarly, MinisterKavumatestiiïed:
JusticePorter:
Yes, that is right. 1think we worked outthat
Gbadolite was actually 1500 km from the
Uganda border;and we were surprised that
the UPDFwould be there!
Mr.Kavuma:
No, 1 am not surprised, My Lord, because
we continued, as1 said earlier, we continued
receiving reports of possible attacks from
airports and airfields from al1 these other
places. Gbadolite has a very, very big
airfield wita long runway, it can be used
by very sophisticatedand big fighter planes.
We could not take chances so we had to
occupy it to preempt that likely
development. And of course, My Lords,
flying 1000km is not (is no longer) avery
difficult thing these days. So in terms of
proximity, Buta, in terms of modern
warfare, rather Gbadolite, in terms of
modern warfare, could be as close as
anythingnear toOurborder.
(UR Annex 59, Part C, p. 5.)
175. Thus, starting on 20 September 1998, theUPDF began
to seise the airfields in eastern and northeastern Congo to
prevent the DRC and Sudan from using them to attack Uganda
or resupply the ADF and other anti-Uganda insurgent groupsthat were stepping up their operations in the area. One by one,
the UPDF took over the airfields at Isiro (20 September), Buta
(3 October), Bumba (17 November),Lisala (12 December), and
eventually Gbadolite (3 July 1999), as depicted by the map on
the following page of this Rejoinder. En route, there were
various conflicts with Sudanese,Chadian, ADF/WNBF, and ex-
FARJInterahamwe: armed forces allied with the DRC
Government. The:major military engagements are listed in the
~ounter-~emorial.'~ (UCM,para. 54.)
176. The fighting in and around Gbadolite in July 1999
marked the last major clash between Uganda and the DRC-
allied forces. Having driven the Sudanese forces out of the
DRC and denied Ilerenemies access to the last major airbase in
northern Congo, IJganda achieved her objective in moving into
the DRC. From that point forward, Uganda was no more than
marginally involvedin such later skirmishing as occurred. (See
infra, paras. 188, 196.) Instead, Uganda's efforts were directed
toward securing a lasting peace that would bring security to the
region. The first major step toward such a peace was taken in
July 1999 at Lusa.ka,Zambia where al1parties to the conflict in
the DRC concluded the Lusaka Agreement.
177. The natur'eof the UDPF's deployment, and indeed its
legal status, changed upon the coming into force of the Lusaka
Agreement at the end of July 1999. As demonstrated in the
Counter-Memoritzl, and as further shown below (see infra,
paras. 213-26),the Lusaka Agreement transformedthe Ugandan
presence in eastern Congo from one based exclusively on self-
55 In heReply,the I)RC presents a battle history showing the timing and
nature of alleged confrontations between the UPDF andallied forces.
The parties are in basic agreement about the dates and places ofents.
Nevertheless, the DFLCcharges that Uganda only mentions certain battles in
the Counter-Memorialand ignores others. (DRCR,para2.68.)Uganda
readily acknowledges that, in theter-Memorial, she deliberately
decided not to burden the Court with a detailed, battle-by-battle account of
the conflict, but instead chose to on the major clashes. Because the
parties agree that the.UPDF was inside the DRC and there were
confrontations with DRC-allied forces, little is gained by a battle-by-battle
exegesis.defence, to one based as well on the forma1agreement of al1
parties to the conflict, including the Governmentof the DRC.
178. Indeed, it is disingenuous for the DRC to continue to
challenge Uganda's motives for deploying its armed forces in
eastern Congo. The DRC has long recognised that theADF and
other anti-Uganda insurgent groups poseda serious threat to
Uganda's security,and that this threat justified the presenceof
Ugandan armedforces in the DRC. Byfreely allowingUganda
to send her troops into Congo prior to and in accordance with
the April 1998 Protocol between thetwo States, (supra, paras.
89-98), andby acknowledgingthe legitimacy and seriousness of
Uganda's security concerns in the Lusaka Agreement (UCM
Annex 49, the DRC has repeatedlyconceded that Ugandahad
valid security interests in preventing eastern Congo from being
used as a base for attacks against her.
179. Moreover, as mentioned above, the 6 September 2002
Luanda Agreement between Uganda and theDRC constitutes
further recognition by the DRC of the genuineness and
importance of Uganda's security interests, as well as the
continuing necessity for Uganda tomaintain a limited military
presence in eastern Congo. (Infra, paras. 229, 233.) The
Reply's efforts to paint a contrary portrait, that Uganda's
motivations were something othes than the security of her
borders, are thus refuted by the DRC'sown actions.
F. The DRC'sFailure To DemonstrateThe
Impropriet~Of Uganda'sLimited
RelationshipsWithCongolese Rebel
Organisations
180. The DRC devotes a significant portion of herReply to
developing the alleged circumstances of Uganda's support for
Congolese rebelorganisations, namely the MLC and the RCD,
after the rebellion against President Kabila's government
erupted in August 1998. (See DRCR, paras. 2.95-2.147.)
Before addressing the substance of the DRC's argument,
Uganda first notes that,contrary to the DRC's contention,she
has never denied providing assistance tothese groups. (DRCR,
para. 2.95.) In the Couizter-Mernorial,Uganda noted merelythat at the oral proceedings on the DRC's application for
interim measures,,she did not address the issue of support for
the rebels one way or the other. (UCM, para. 143.) Moreover,
because the DRC's Memorial was al1 but incoherent on this
question, the Counter-Mernorialproceeded from the premise
that the DRC had not presented even a prima facie case
meriting further response.
181. Because the DRC has now come forward with at least a
coherent argumeriton the issue (albeit one that strainsthe lirnits
of the Court's ruliesconcerning reply briefs), Uganda will now
fullyrespond to the DRC's allegations.
182. Uganda has provided assistance to the MLC and the
RCD. While the assistance has been largely political in nature,
it has also inclilded the provision of military training and
supplies. There have also been occasions when the troops of
these Congolese rebel organisations fought alongside and in
coordination witlî Uganda's armed forces in military actions
against forces alljed with the DRCGovemment, including those
of Sudan, Chad, the ADFIWNBF and ex-FARIInterahamwe.
However, Uganda's military support to, or coordination with,
the MLC and RCD, was strictly limited as to time and purpose,
and sanctioned by the Lusaka Agreement of July 1999, as
discussedbelow.
(1) Limitationsas to time
183. Uganda provided no rnilitary assistance of any kind to
Congolese rebel organisations before the entry of her own
armed forces intcsthe DRC in the middle of September 1998.
Al1military support provided by Uganda to the MLC and the
RCD came after that critical time; that is, after Uganda's
security was so grievously and imminently threatened by the
DRC's military alliancewith Sudan and the Congo-based anti-
Uganda insurgents that her intervention in eastern Congo was
necessitated byself-defence.
184. Moreover, the nature and extent of Uganda's military
supportto the Congolese rebels was consistent with and limited
to the requirements of her self-defence. Uganda deliberatelyrefrained from providing the rebels with the kinds or amounts of
support they would require to achieve ends, such as the
conquest of territory or the overthrow of the DRC Government,
that were beyond what was required for Uganda's self-defence.
185. The Reply itself acknowledges that such limited
assistance to anti-government forces is consistent with
principles of self-defence in international law. At paragraph
6.49, the DRC asserts that any aid she might have lent to anti-
Uganda forces in August 1998 or thereafter can be excused as
self-defence because the DRC had been subjected to an armed
attack from Uganda. Of course, Uganda hasalready shown that
she undertook no hostile actions against the DRC in August
1998, and that Uganda herself, not the DRC, was the victim of
the first armed attacks. Nevertheless, theReply States:
Il va de soi que ce soutien [aux rebèlesanti-
ougandais]. ..ne peut êtreconsidéré, entant
que tel, comme contraire à l'obligation de
ne pas recourir à laforce dans les relations
internationales. Cet appui limité
constituerait en efSt.tl'exemple type d'une
action proportionnée, menéeen légitime
défense parun Etat agressé.s6
(DRCR, para. 6.49.)
186. By parity of reasoning, Uganda's lirnited support for
Congolese rebel organisations should qualify as just the sort of
"proportionate action, carried out in legitimate self-defence"
that the DRC justifies.
187. The Reply al1 but concedes that Uganda's military
support for the Congolese rebel organisations did not
commence before late September 1998. Indeed, the DRC
acknowledges that the MLC did not even come into existence
56"It is obvious that this support [to the anti-Uga..cannot be
considered, as such, as a contravention of the obligation not to resort to force
in internationalrelations. This limited support would in fact be a typical
example of a proportionateaction,carrieinlegitimate self-defence by a
State which asvictim of aggression."until "la fin du mois de Septembre 1998."" (DRCR, para.
2.111.) This fact is confirmed by MLC founder and leader
Jean-Pierre Bemba in his book, Le Choix de la Liberté,cited
extensively in the Reply. Even then, it took Bemba several
months to attract 1:ecruits.Indeed, it was not until January 1999
that he had sufficient troops to undergo rnilitarytraining, which
Uganda assisted in providing: "Après cinq mois de formation
intensive, des centres d'instruction de Buta, Bumba et Lisala
sortent des bataillons d'infanterie prêts au combat. ... De
janvier à mai 1999, tous les efforts sont orientéssur ces centres
deformati~n."'~ (UR Annex 46, p. 37.) Thus, according to the
Reply itself, the :MLCwas not "ready-for-combat" untilMay
1999, and its participation in military engagements before that
date were, of necetssity,marginal.
188. In July 1999, two months after the MLC became
combat-ready, a political settlement was achieved. The Lusaka
Agreement produced not only a cease-fire, but also established
the basis for a coimprehensivepeace settlement agreed toby al1
the parties to the conflict, includingthe DRC, Uganda, the MLC
and the RCD. According to the Reply (again quoting Mr.
Bemba), when this agreement was reached, PresidentMuseveni
"me confirme qu,e les troupes ougandaises vont se retirer du
~on~o."~~(DRCK, para.2.114.)
189. Uganda's military support for the RCD did not begin
until March 1999, even later than she commenced supporting
the MLC. Ugan'dahas already demonstrated that she had no
role whatsoever in the creation of the RCD in August 1998.
(Supra, paras. 156-60.) From its inception, the RCD received
military support from Rwanda, and its forces were joined in
battle by seasonivdelements of the Rwandan Army, as the
Government of R.wandahas publicly acknowledged. Thus, the
57"the end of Septemib1998."
5"After five months of intensive training, the training centers of Buta,
Bumba and Lisala passed out ready-for-combat infantry battalions..
January to May1999 al1the efforts were directed toward the training
centers."
5"confirmed to me that the Ugandan forces were going to be withdrawn
from Congo."combined RCDJRwandanforces took Kisangani on 31 August
1998, Kindu in October 1998, and ultimately controlled
extensive swathes of territory in eastern, southern and central
Congo.
190. As so often in the Reply, the DRC attempts to impute
responsibility to Uganda for Rwanda'sactions. Relying, as
always, on the accounts ofjournalists who themselves assume,
without justification, that Rwanda and Uganda are
interchangeable, the Reply accuses both States of providing
military support to the RCD. (See, e.g., DRCR, paras. 2.129-
2.131 .)No real evidence against Ugandais presented, however,
because Uganda provided no military support to the RCD
duringthis period.
191. From August 1998 to March 1999, Uganda provided
only political support to the RCD, consisting mainly of advise
on how best to seek a political settlement with the DRC
Government. (Supra, paras. 156-60.) In March 1999, as the
Replyacknowledges, theRCD split into two, with one faction --
the one that favoured a political settlement with the DRC
Government -- abandoning the RCD's headquarters in Goma
(located on the DRC's borderwith Rwanda) to set up its own
base in Kisangani (closer to Uganda). (See UR Annex 46, p.
107.) Uganda chose to supportthe faction knownat the time as
the RCD-K (for Kisangani), and later as RCD-ML, precisely
because it was more open to a political solution in the DRC,
while theRwandan-supportedRCD-Gomafavouredthe military
overthrow of the DRC Government. (Ibid.) It was only after
the March 1999 breakup of the RCD that Uganda began to
provide military support, andthen only to the Kisangani-based
faction that soughta politicalsettlement.
192. Thus, Uganda's limited military support for the
Congolese rebel organisations was consistent temporally with
her singular objective of protecting herself against the threat
posed to her security by the DRC's military alliance with her
most dangerous enemies, especially Sudan, and by the
aggressive actions taken by those hostile forces in Congolese
territory within striking distance of Uganda. To quote again
from theReply: Cet appui limité constituerait en efSet
lJexem,pletype d'une action proportionnée,
menée en légitime défense par un Etat
aggressé.60
(DRCR,para. 6.4'3.)
(2) Limitations as topurpose
193. Uganda's only purpose in sending her troops into
eastern Congo, and in providing lirnited military support to
Congolese rebel organisations, was self-defence. When andto
the extent that these organisations sought to pursue other
purposes, including military advances beyond areas Uganda
deemed necessary forher own protection, Uganda cut them off.
Mr. Bemba himself clearly understood the limits ofUganda's
support for his organisation: "Legouvernement ougandais veut
empêcher tout nouvel assautdes rebelles ougandais, ADF,
NALU, WNBF et autres réfugiés dans les montagnes
congolaises. Une kyrielle de mouvements armés menacent en
permanence les jpontières ougandaises."61 (UR Annex 46, p.
108.)
194. Indeed, NIr. Bemba complained that Uganda sought to
restrain him whenever he sought rnilitarily to push back the
front lines beyond the perimeter Uganda considered necessary
to her self-defence. In particular, after some MLC advances in
Equateur Provincye,Mr. Bemba was anxious to take advantage
of his momenturn andpursue further military gains down the
Congo River (from which Kinshasa,the DRC's capital, would
be a ready target). But PresidentMuseveni expressly opposed
the idea. (UR Ainnex46, p. 31 .) Mr. Bemba briefly continued
his advance,but without Ugandan support.
"This limited support would in fact be a typical example of a proportionate
action,arried out in legitimateself-defenceby a State which is a victim of
aggression."
61"The UgandanGovernmentwanted to stop any newassault from Ugandan
rebels ADF,NALU,WNBF, and otherrefugees in the Congolese mountains.
A group of armed pc~litl roups was a threat to Uganda fromacross the
Congo."195. Later,when the MLC tookBuburu (near Mbandaka)in or
around May 1999, Uganda succeeded in restraining the MLC
from proceeding furtherinthe directionof Kinshasa. Mr.Bemba
states: "La mise en périldes relations amicales avec notre allié
ougandais .. .rn'oblige[]à revoir notreposition."62 (UR Annex
46, p. 81.)
196. As discussed above, Mr. Bemba further reports that
Uganda's supportfor the RCD, like her support for theMLC,
was limited to and consistent with herself-defencerequirements.
He confirms that Uganda supported Professor Wamba dia
Wamba's RCDIK (later RCDJML)faction precisely because he
was more open to a political compromise with the DRC
Governmentthan was the Rwanda-backedRCDIGoma. (Ibid.,p.
107.)
197. According to Mr. Bemba, Uganda's sole interest in the
DRC was fully revealed tohim by President Museveni himself,
shortly after the UPDF took Gbadolite, in July 1999, and
thereby ended the Sudanese military presence in Congo.
According to Mr. Bemba, President Musevenithen declared
that Uganda would be progressively withdrawingits troops
from the DRC, since: "[Lles Soudanais ne peuvent plus
disposer de bases arrières au Congo. Nous avons fait notre
travail. Si les Congolais veulentpoursuivre la guerre, c'est leur
~flaire."~' (UR Annex 46, p. 134.) From that point forward,
Mr. Bemba attests, Ugandan troops were no longer on thefront
lines. (Ibid.) Thus, once Ugandahad driven herenerniesout of
the DRC and secured the Lusaka Agreement recognising her
security interests and establishing a system of public order to,
inter alia, protect her borders, her further deployment in the
DRC ended, and herwithdrawalbegan.
198. Apart from military cooperation, Uganda occasionally
lent support tothe Congolese rebelorganisationsin theexercise
of their administrative functions in the territories that they
62"Thejeopardizing of Ourfriendly relations with OurUgand...allies
forced me to re-examine our position."
61
"Sudan can no longer have rear-basesDRC.thWe accomplished Our
task. If the Congolese wani to continue the war, it's their business."respectively coritrolled. At al1 times governmental
administration in the rebel-held territories was performed by the
rebels themselves, through the local and regional administrative
structures that thley established. Since there was no DRC
Government presi:nce of any kind in the rebel-controlled areas
after August 19925,when the war broke out, the MLC and the
RCD effectively constituted de facto governments in their
respective zones of operation. From time to time, and uponthe
request of these d(efacto governments,Uganda provided limited
assistanceto themi.
199. Thus, thei-e is no merit to the DRC's allegation that
Uganda's presence in eastern Congo constituted an
"occupation." IJganda had no interest in maintaining an
"oc~upation'~of the DRC. Nor did she have the means. As
explained above, the Ugandan military presence in the DRC
never reached a.s high as 10,000 troops, and they were
ultimately dispessed across an area roughly the size of
Germany, without roads, infrastructure, or modern
communications.
200. Unsurprisingly, even as the DRC insists that Uganda
"occupied" her territory, she also acknowledges that she lacks
the facts to support this claim. So, for example, the Reply
alleges on the oniehand that "[ulne fois la conquêteréalisée,
L'UPDF a établi:une zone d'occupation dont elle a assuré
l'administration defaçon directe et indirecte."" (DRCR, para.
2.77.) Yet, on the other hand she admits "[lla RCD n'ayant,
par définition,pas accès aux zones occupées, elle ne peut
exposer dans leurs détails les modalités de l'administration
directe et indirecte de la partie du territoire ...."65 (DRCR,
para. 2.81.) Given this frank admission, one wonders how the
Court can be explectedto adopt as "fact" matters on which the
DRC herself admits ignorance.
64"[wlhen the conquest was completed, the UPDFformed a zone of
occupation whichigovernedboth directly and indirectly."
65"[slince the DRC does not have access to the occupied areas, it cannot
present the details of'the direct and indirectrule in that part of Congo's
territory..."201. Elsewhere, the DRC's own assertions undermine her
claim of "occupation." According tothe DRC, for example,
"[d]ans bien des situations, lorsque les troupes ougaizdaisesse
retirent d'une localité oud'un territoire occupéc'est pour en
laissé[sic] lecorztrôleau MLC. Cefut entre autres le cas pour
les villes de Buta et~ernena."~~(DRCR, para. 2.127.) Thus,
according to the DRC herself, there was no real occupation.
Quite the contrary, administration of the territory in which
Ugandan forces operated was very much in the hands of the
Congolese rebels themselves. Although theReply cites Mr.
Bemba authoritatively on numerous occasions, it ignores him
completely on the subject of who adrninistered this territory.
This is because, as Mr. Bemba repeatedly emphasises, local
administration in eastern Congo was provided by the MLC and
the RCD, not by Uganda. (See, e.g., UR Annex 46, pp. 65, 66,
129, 156.) In this regard, it should be recalled that Mr. Bemba
ultimately had 33 battalions under his command (consisting of
more than 25,0000troops), a force twiceas largeas Uganda's.
202. Uganda's participation in local administration was
strictly limited. She did try to unify the Congolese rebel
organisations,and to stopthem from fighting amongthemselves
and with one another. The fighting within and among the
groups served no one's purposes, least of al1 the Congolese
people's, and if Uganda could bring her influence to bear in
resolving these interna1 conflicts, so much the better.
Otherwise, it was Uganda's clear policy to leave Congolese
matters to the Congolese. (UR Annex 46, p. 156; see also
UCM Annex21, pp. 13-15.)
203. To be sure, there was one significant exception to this
policy, and it is given great attention inthe Reply, perhaps
because it is the only example the DRC can find of Uganda's
direct involvement in local administration. It is true thatUPDF
General James Kazini played a significant role in the
appointment of Adele Lotsove Mugisa as Governor of Ituri
Province. (DRCR, para. 4.54.) Uganda acknowledges this
incident, but denies that it is typical. In fact, it is unique. In the
66"In many cases, the Ugandan troops leftan area or occupiin territory
the hands of tMLC. This was thecase with Buta and Gemena towns."first place, General Kazini intervened in an emergency
situation, where inter-ethnic violence was growing out of
control, in order to ease the humanitarian crisis. (UR Annex
35.) Second, General Kazini was reprimanded by President
Museveni himself for his intervention in Congolese affair~.~~
(UR Annex 65, Part C, pp. 23-25.)
(3) Thestatus ofthe Congoleserebel
organisations under the Lusaka
Agreement
204. The DRC admits that after August 1998, shemaintained
no administrative presence and exercised no authority
whatsoever in the eastern and northeastern regions of the
country in which Ugandan troops later operated. (See DRCR,
para. 2.81.) Ali.hough the central Congolese Government's
presence and authiorityin those regions were always scant, they
evaporated completelywith the outbreakof the rebellion against
President Kabila i.nAugust 1998. By the end of that month, the
rebels occupied and controlled almost half of the DRC. In the
more than four years since the rebellion began, the central
government has never reclaimed its authority, or reestablished a
presence in the re:bel-controlledareas. (See infra, Ch. IV, para.
442.) Thus, the MLC and the RCD, which have continuously
occupied and aclrninistered these areas, are no mere rebel
organisations; for over four years they have been, and remain,
the defacto governmentsof the regions they control.
205. In recognition of this, the Lusaka Agreement of July
1999conferred on the MLC and RCD CO-equalstatus with the
DRC Governmerit in Kinshasa. A straightforward analysis of
the Agreement fiullydemonstrates this. The Preamble to the
Lusaka Agreement beginsby:
TAKING note of the comrnitment of the
Congolese Government, the RCD, the MLC
and al1 other Congolese political and civil
67 The circumstanceisof Gen. Kazini's involinthe appointment of
Ms. LotsoveMugisa are more fully discussed below in Ch. IV, paras. 488-
91. organisations to hold an al1 inclusive
National Dialogue aimed at realising
national reconciliation anda new political
dispensation in the DRC[.]
(UCM Annex 45, Preamble.)
206. The Agreement then goeson to state:
....The Ceasefire shall entai1the cessation of:
...attempts to occupy new ground positions
and the movement of military forces and
resources from one area to another, without
the prior agreement betweenthe parties[.]
(Ibid.,Art. 1,para. 3(b).) In other words, ail forces--those of
the DRC Government, the MLC and the RCD alike -- were to
remain in place pending the completion of an "open national
dialogue," a process intended to secure "a new political
dispensation and national reconciliationin the DRC." (Ibid.,
Art.III,para. 19;emphasis added.)
207. Moreover,the Agreement makesclear that the MLC and
RCD were to retain administrative authorityover the areas then
under their militarycontrol, at least until theconclusion of the
inter-Congolese dialogue. Article III, paragraph 18provides:
In accordance with the terms of this
Agreement andupon conclusion oftheInter-
Congolese political negotiations, state
administration shall be re-established
throughout the national territory of the
Democratic Republicof Congo.
(Ibid., Art. III, para. 18;hasisadded.) Thus, pending the"re-
establishment" of "state administration" after the inter-
Congolese dialogue, administrative authority was necessarily
vested in the powersin place.
208. Finally, the fact that the MLC andRCD were intended
to enjoy equal status with the DRCGovernment was confirmed
in Annex A to the Agreement. Chapter 5, paragraph 5.2, statesunequivocally: "[A]11the participants in the inter-Congolese
political negotiations shall enjoyequal status[.]" (Ibid., Annex
A, Ch. 5.2; emphasis added.)
209. The equal status of the Congolese Government, the
MLC and the RCD was also recognised in paragraph 6.2 of
Annex A. In thzt paragraph the parties agreed that operations
"throughout the national territory whichare of general interest"
could only be cairriedout through "a consultative mechanism
among the Congo:leseparties:"
On the coming into forceof this Agreement,
there shall be a consultative mechanism
among the Congolese Parties which shall
make iitpossible to carry out operations or
actions throughout the national territory
which are of general interest, more
particularly in the fields of public he..t.,
education . . .,migrations, movement of
persons and goods.
(Ibid., Annex.A, Ch. 6.2.)
210. The Lusak.aAgreement thus formally gavethe MLC and
RCD the equal :statu with the DRC Government they had
previously enjoyed defacto. In so doing, the Agreement gave
Uganda and other parties to the Agreement as much right to
assist the MLC and RCD in their respective areas of control as
to support the Government of President Kabila in Kinshasa.
Thus, the Lusaka Agreementfully legitimated Uganda's support
of the MLC and theRCD.
G. The EffectsOf The Lusaka AgreementOn
The DRC's Claims Against Uganda
211. In her Counter-Memorial, Uganda presented the Court
with a detailed historical and textual analysis of the Lusaka
Agreement, together with the subsequent disengagement plans,
and showed how it legitimated the UPDF's presence in Congo.
(See UCM, paras. 65-101.) In response, the DRC is al1but
silent. The Repi'ydoes devote some eight paragraphs to the
topic (DRCR, paras. 3.211-3.218),but these few paragraphs dono more than rehash the sparse treatment the DRCgave to this
topic in her Memorial. (See DRCR, para. 3.213.) The DRC's
effort to bury the Lusaka Agreement isa potent indication of
just how stronglyit favours Uganda'sposition in thiscase.
212. Ironically, the DRC suggests that it was Uganda that
somehow failed to respond to arguments presented in her
Memorial. (DRCR, para. 3.214.) But this statementseems
based on nothing more than a willful rnisreading of the
Counter-Memorial. In fact, Uganda dealt fully with eachof the
three issues raised by the DRC.
Uganda's responses to theDRC's
(1)
arguments
213. The DRC's first argument is that the Lusaka Agreement
cannot retroactively justify Uganda's military intervention in
eastern Congo before July 1999. Uganda submits that this
argumentmisses the point.
214. In the Agreement, the partiesexpressly recognised that
certain "armed groups" basedin Congo, includingespeciallythe
ADF and fiveother anti-Uganda groups, constituted real threats
to the security of the DRC's neighbours, including Uganda.
(UCM Annex45,para. 9.1 & Annex C.) The parties considered
these threats so serious that they agreed to prohibit aid or
assistance of any kind to any of the designated armed groups,
and to prevent themfrom staging further cross-border attacks
against neighbouring States. (Ibid., para. 22.) Above all, the
parties agreed todisarm al1of the armed groups, to demobilise
them, and to repatriate them to theircountries of origin. (Ibid.)
Thus, by targeting the anti-Uganda insurgent groups byname,
by agreeing not to support them and instead to disarm and
demobilise them, and by undertaking a cornmitmentto prevent
future cross-border attacks from Congolese territory, the DRC
Government and the other parties to the Lusaka Agreement
acknowledged the validityof Uganda's longstandingclaim that
the presence of these groups in the border regions of eastern
Congo constituted aseriousthreat to hersecurity.215. At the sarne time, the parties' agreement that foreign
troops, includingJganda's, should be withdrawnfrom the DRC
only after the disarmament/demobilisation/o rfeptetriation
named armedgroilpscan onlybe interpreted as their recognition
that the presence of Ugandan troops in the DRC was linked to
and, indeed, an appropriate response to, the presence there of
the ADF and other anti-Uganda groups. This is not a question
of retroactive application of the Agreement. It is a recognition
by al1 the parties thereto, including the DRC, that Uganda's
security concerns were serious, and her response appropriate. A
fortiori, if Uganda's security concerns were sufficientlyserious
in July 1999 to justify the continued presence of her armed
forces in the DR.C, they were even more serious --and the
presence of Ugandan forces in the DRC was even morejustified
-- in September 1998, when the ADF was at its maximum
strength and thouisandsof hostile Sudanese troops had taken up
strategic positionisagainst Uganda ineastern and northeastern
Congo.
216. The DRC's second argument is that the Lusaka
Agreement required al1foreign forces to exit the DRC within
six-months no matter what transpired withrespect to the armed
groups or other aspects of the Agreement. This is a blatant
rnisreading of the:Agreement. The Counter-Mernorial showed
that the Agreement was intended as an indivisible, integrated
whole. (UCM, paras. 66-75, 79.) The timing of each of the
action items, including the disarmament/demobilisation/
repatriation of the "armed groups" and departure of foreign
troops, was mutuiillydependent.
217. It simply is not correct to say that the fundamental
purpose of the Agreement was to achieve the withdrawal of
foreign forces. (DRCR,para. 3.213.) The fundamentalpurpose
of the Agreement was to achieve a comprehensive public order
system leading 1.0a definitive peace settlement. The parties
recognised that this could not be accomplished without, inter
alia, disarmament/demobilisation/r oepthtr"iartidon
groups" that threatenedthe security of Uganda and the DRC's
other neighbours,. Thus, the timetable for performance of al1of
the action items under the Agreement, set forth in Annex B
thereto, purposely schedules the disarmament/demobilisation/repatriation of the armed groupsbefore withdrawal of foreign
troops was to begin. (UCMAnnex45, Annex B,paras. 16-27.)
218. Moreover,the fact that the Kampala disengagementplan
was entered (and agreed toby the DRC) on 8 April 2000 (Le.,
well beyond the purported six-month deadlinenow claimed by
the DRC) shows by itself thatthe parties have always beenin
agreement that the commitments set forth in the Lusaka
Agreement are mutually dependent, and that there is no
independent deadline for the withdrawal of foreign troops.
(UCM,para. 79; UCM Annex59.)
219. Indeed, the DRC's principal ally, the Government of
Zimbabwe, has repeatedly confirmed this. In April 2001,
Zimbabwe's Ministerof Defence, Hon. Moven Mahachi, stated
that:
[Tlhe successful implementation of the
Lusaka Peace Accord would determine the
pace at which Zimbabwewould continue to
reduce its troops in the DRC until an
appropriate time for total withdrawal as
outlined in the Kampala disengagementand
Harare sub-plans.
(URAnnex 50.)
220. In July 2002, Zimbabwe's Foreign Minister, Hon.
Stanley Mudenge, said: "As soon as the Lusaka Agreementis
fulfilled we will certainly withdraw Ourtroops immediately."
(UR Annex 82.) Thus, there can be no doubt that withdrawalof
foreign troops from Congo was linked to and dependent upon
the fulfillment of other obligations under the Lusaka
Agreement, including the disarmament/demobilisation/
repatriationof the designated armed groups.
221. Lest any doubt remain, it should be noted that when
President Museveni announced, in April 2001, that al1
remaining Ugandan troops would be immediately withdrawn
from the DRC, ahead of the fulfillment of the other
commitments of the Lusaka Agreement, he was beseechedby
the internationalcommunity, includingthe Secretary-Generalofthe United Nations not to do so. The Secretary-General
specifically asked, and ultimately persuaded, President
Museveni to allow Uganda's troopsto remain in place, and to
be withdrawn onl:yin accordance with the Lusaka Agreement's
provisions. In his letter to the President o4 May 2001, the
Secretary-Generalwrote:
Excellency:
Your special envoy, the Honorable Amama
Mbabazi has explained to me the
circum.stances under which Uganda
annou~icedits withdrawal from the Lusaka
Peace :Process.
At this particularly sensitive and delicate
stage in the DRC Peace Process, 1believe it
is crucrial that Uganda and al1 the other
signatories to the Lusaka Agreement stay
fully engaged with the international
cornrnunityand United Nationsin particular,
as together we seek to consolidate the recent
positive trends inthe DRC.
1 am confident of your cornmitment to the
search for peace in the DRC. In this regard,
1wish to encourage you tocontinue with the
withdrawal of Ugandan troops in the context
of the Idisengagementprocess.
1 am !sureyou will agree with me that the
present momentum towards peace in the
DRC inust be sustained and exploited to the
full; iinthis regard 1 know 1 can count on
your continued assistanceand good will.
(UR Annex 56;eiaphasis added.)
222. The significance of the Secretary-General's letter will
not be lost on the Court. Faced with the prospect of the
unilateral withdriawalof Ugandan forces from the DRC, the
Secretary-Generalreacted notwith joy, as the Reply might leadone to believe, but with sufficientconcern to request, in writing,
that Uganda take no such action. In so doing, he expressly
endorsed the argument Uganda has been making from day one
-- that the Lusaka Agreement permitted her to remain deployed
in the DRC until the necessary preconditionsfor the withdrawal
of al1foreign forces, including thedisarmament/demobilisation/
repatriation of "armed groups" that threatened the DRC's
neighbours, were fulfilled.
223. Testifying to the PorterCommission,Hon. RalphOchan
described the circumstances giving rise to the Secretary-
General's letter. Referring to false allegations aboutUganda's
reasons for keeping troopsin Congo initiated by the DRC, he
stated:
Ochan:
..But of course you realize in the end Our
own Head of State could no longer take
these insults anymore and made thedrastic
decision.
Lead Counsel:
Which drasticdecision are you referring to?
Ochan:
To pull out of Congo, completely and the
same Security Council would dance around
and write to you and say please don't do it
because it is going to cause more problems
than to solve problems, stickto Lusaka.
Lead Counsel:
But it was Uganda's obligation under the
Lusaka Agreementactuallyto withdraw.
Ochan:
According to the timetable drawnout here.Lead Counsel:
So it was not reallya drastic decision.
It was.,to withdraw outside the context of
the Agreement,that was the decision.
Lead Counsel:
There is a letter which has been mentioned
by another witness, who wrotethis letter?
Itisthe Secretary Generalwho wrote it.
Lead Counsel:
...Andlyou were saying that this letter was
asking what?
To stay engaged within the Lusaka Peace
Agreement.
JusticePorter:
Engaged with who?
Ochani:
Withinithe peace process, within the context
of the :Lusakapeace Agreement.
Justice Porter:
Mr. Ochan what 1 read here is to engage
with t:he International Community and theUnited Nations in particular, and the
paragraphsays ....
"Fully erzgaged with the I~ztenzational
Comrnunity and the United Nations in
particular."
Ochan:
Indeed because the United Nationsadopted
the Lusaka peaceAgreement.
"As together we seek to consolidate the
recent positive trends in the DRC. I am
confident of your commitment to search for
peace in the DRC. In this regard I wish to
encourage you to continue with the
withdrawalof Ugnndatztroops in the context
of the diseizgagement process."
But what our President had announced was
..the unilateral withdrawal outside the
disengagement process, outside Kampala
and Harare disengagementplan.. ..
JusticePorter:
And the agreement requiresyou to stay.
Ochan:
To withdraw as per the disengagementplan
and surpassal1the parties.
JusticePorter:
They don't cal1a spadea spade. They usually don't.
JusticeBerko:
So 1take it that it is on the basis of this letter
that Uganda is still inDRC.
Well as you know the Army Council, the
High Command, the Cabinet and Parliament
al1resolved that we should stay within the
process under the Agreement. In other
words the Secretary General managed to
persuade them to side with him.
Justice Porter:
Withdrawal had taken place, hadn't it?
Ocham:
Yes, but withinthe Lusaka.
B,pp. 15-18.)
(UR Annex 64, Part
224. The DRC's third argument is that Security Council
Resolution 1304 of 16 June 2000 required the immediate
withdrawal from Congo of al1Ugandan forces, without mention
of disarming, demobilising or repatriating the Congo-based
anti-Uganda insixgent-groups, and thereby constitutes a
rejection of Ug,anda's position. However, the Counter-
The DRC herself recognises the circumstances giving rise to the Secretary
General'sletter. At paragraph 2.90 m, thethe DRC admits that the
day before the Secretiuy General's2001 letter, representatives from
Uganda's Permanent Mission to the United Nations informed himthat
Etut [L'Ouganda]état rêtà retirer toutes ses troupes." (DRCR, para. 2.90,
citing Secretary-General's MONUC Report.) ("[Uganda's] forces were
about to beithdrawinfrom the DRC.") The response was the Secretary-
General'sletter asking Uganda not to do so.Memorial demonstrated that Resolution 1304contemplates
withdrawal of Ugandan andother foreign forces "in conforrnity
with the timetable of the [Lusaka] Ceasefire Agreement and
April 2000 disengagement plan," and thatthe Security Council
viewed the parties'obligations under the Lusaka Agreementas
"reciprocal." (See UCM, paras. 80-82.) Thus, far from
rejecting Uganda's argument, the Security Council actually
endorsed it.
225. Finally, to these three meritless arguments, theDRC
attempts now to add a fourth--that theCourt'sNovember 2001
procedural ruling on Uganda's counter-claims somehow
precludes Ugandafrom invoking the Lusaka Agreementas part
of its substantive defence against the DRC's claims. (DRCR,
para. 3.216.) But the Court'sruling on Uganda's thirdcounter-
claim cannot in any way forecloseUganda from addressing the
impact of the Lusaka Agreement onUganda's defences to the
DRC's claimsin chief.
226. As discussed below in paragraphs318to 319 of Chapter
III, nothing in the Court's Order of 29 November 2001 suggests
that the Lusaka Agreementis irrelevant tothe DRC's claim or
Uganda's defences. Rather, it holds merely that Uganda may
not maintain her counter-claim against the DRC based on the
DRC's alleged violation of the Agreement because the
particular delicts identifiedin that counter-claim do not arise
from the same circumstances as the DRC's claims against
Uganda. Obviously, this is not the same as holding that the
Agreement is irrelevant to al1facets of this case, as the DRC
now argues.
(2) Recent developments infulfillment ofthe
Lusakapeaceprocess
227. The Counter-Memorial details Uganda's actions in
fulfillmentof its obligationsunder the Lusaka Agreement andin
supportof the peace process. (UCM,paras. 78-86.)
228. Since the Counter-Mernorial was submitted in April
2001, Uganda has remained fullyengaged in the Lusaka peace
process. Thus, for example, on 19 November 2001, MONUCrequested from Uganda information concerning the statusof her
withdrawal of troops from the DRC. (UR Annex 69.) In her
response, Uganda submitted the information MONUC
requested, including data showing that Uganda had, as of that
date, withdrawn fromCongo6,655 soldiers. (Ibid.)
229. Since December 2001, Uganda has withdrawn from
Congo virtually a.1of her remaining troops. (See UR Annex
89.) As of thesubmission of this Rejoinder, only one battalion
of Uganda troops (approximately 775 men) was stationed inside
the DRC, in Bunia. These troops are there with the renewed
consent of the DRC Government, as set forth in the Luanda
Agreement of 6 September 2002 (UR Annex 84, Art. 1,paras.
3-4 & Annex A), and at the express request of MONUC, which
asked the UPDF; to remain there, pending replacement by
Congolese or United Nations peacekeeping forces capable of
maintaining secutiryin the region. (UR Annex76.)
230. Uganda notes with satisfaction that the DRC, as well,
has begun to honour her obligations under the Lusaka
Agreement. Tlhe long-delayed inter-Congolese dialogue,
required by Chapter 5 of the Agreement, was finally given a
kick-start at Sun (City,South Africa in April2002. It produced
significantprogress toward a "new political dispensation"in the
DRC, as required by paragraph 5.1 ofthe Agreement. In
particular, anagreement in principle toshare power in a unitary
Congolese national government was reachedby DRC President
Joseph Kabila (son of the late Laurent Kabila) and MLC leader
Jean-Pierre Bembla,with the former continuing as President and
the latter serving as Prime Minister, pending the holding of
national electionswithin two years. (UR Annex80.)
231. This positive development was, inter alia, a recognition
by the DRC Government of the legitimacy of the MLC as a
significant and representative Congolese political force, as well
as the defacto authority in much of eastern and northernCongo.
Unfortunately, however, the RCD did not accept the role
assigned its leadership in the proposed new political
dispensation, and the agreement could not be fully
consummated at Sun City. (Ibid.)232. However, after a brief hiatus, the DRC Government
resumed negotiationswith theMLC and RCD over a new, more
inclusive power-sharing arrangement. Under discussion was a
new politicaldispensation in which, pendingnational elections,
President Joseph Kabila would continue in office, and the
leaders of the MLC and RCD would serve as Vice-Presidents.
(UR Annex 99.) These discussions were continuingas of the
date of submission of this Rejoinder. It is Uganda's hopethat
an agreement satisfactoryto al1the Congolese parties will be
achieved as soon as possible, and what the Lusaka Agreement
recognised as the "internal" dimension of the Congolese
conflict will befully and finallyresolved.
233. The "external" dimensionof the Congoleseconflict also
appears close to a felicitous conclusion. In the Luanda
Agreement betweenthe DRC and Ugandaof 6 September 2002,
the DRC expressly recognised, onceagain,the seriousthreats to
Uganda's security posed by armed groups of anti-Uganda
insurgents operating from eastern Congo, and agreedthat
Ugandan troops could remain in the DRC until another
mechanism for "guaranteeing Uganda's security" is put in
place. In Article1,the Agreementthusprovides:
The Parties agree that the Ugandan troops
shall remain on the slopesof Mt. Ruwenzori
until the Parties put in place security
mechanisms guaranteeing Uganda's
security, including training and coordinated
patrol ofthe commonborder.
(UR Annex 84, Art. 1, para. 4.) Accordingly, as recently as
September 2002, four years after the Congolese rebellion of
August 1998 set off the present armed conflict, the DRC
expressly acknowledged that Uganda's security concerns still
were sufficiently weighty as to necessitate the maintenance of
UPDF troops on Congolese soil." The DRC and Uganda also
agreed:
69 ~ere again, the authors of the DRC's Reply are out of step with the
realities on the ground.other rhetorical flight of fancy, the Reply
asserts: "l'Ouganda se réserilele droit, comme il lefait depuis près de To refrain from al1 types of military and
logistical support including the provision of
bases and sanctuary to the armed groups,
including inter-ethnic militia, subversive
organisations and al1 rebel movements
against the interestsof the Parties.
(Ibid.,Art.2, para. 2.)
234. Beyond recrognisingthe continuing validity of Uganda's
security concerns, the Luanda Agreement also signals the
beginning of a niew era in relations between the DRC and
Uganda. Uganda.looks forward to realising the Agreement's
promise of a cooperative, mutually beneficial relationshipwith
the DRC, and anticipates that the two States will make every
effort to put years of mistrust and hostility behind them once
and for all, and to build an enduring friend~hi~.~'
235. Thus, Uganda is hopeful that thesuccessful conclusion
of the Lusaka pe:aceprocess, begun in July 1999, is now in
sight.
quatre années, dedéciderunilatéralemendte maintenir son armée en
territoire étranger nomde 'considérationd se sécurité' qu'il lt seulà
pouvoir apprécier."(DRCR,para. 2.93.) ("Uganda reserved itself the right,
likeit has done for the last four years,to decide unilaterallyto keep its army
on foreign territoin the nameof 'security concerns.' Upandis the only
one that appreciateshoseconcerns.") Whoever wrotethe Replyneeds to
read the Lusaka and:LuandaAgreements,in which the DRC (and others,in
the case of the Lusaka Agreement)not only recognised the validityof
Uganda's securitycolncerns,but also expressly agreedto the presence of
Ugandantroops in the DRC until the armed groupsthat threatenUganda's
securityare removed.
'O In anothermilestcinedevelopmentin fulfillmentof the Lusaka peace
process, the DRCreached a bilateralagreementwith theGovernmentof
Rwanda. In July 2002,at Pretoria, SouthAFrica,the DRC and Rwanda
agreed on a specific timetablefor the withdrawalof Rwandan troops from
Congo in return for theRC'scooperation in the disarmament/
demobilisation/repatriation of ex-FAR and Interahamwecombatantsbased in
Congoleseterritory. (UR Annexes81,91 .) CHAPTERIII
REAFFIRMATIONOFTHE LEGAL ARGUMENTS
236. The purpose of the present chapter of the Rejoinder is to
rebut the legal arguments presented in the Reply in response to
the legal justifications advanced by Uganda in her Counter-
Mernorial. In the first place, Uganda considers it appropriate to
reaffirm the legal justifications thus presented. Recent
developments in international relations have confirmed the
serious dangers resulting from the harbouring of groups hostile
to other states,whether neighbouring target states or otherwise.
237. The assessment of issues of self-defence must always be
contextual and the application of the legalcriteria to the facts
must be attended by considerations of what is reasonable in al1
the political and geographical circumstances. The relevant
political circumstances will necessarily include the general
pattern of relations between the harbouring state and the target
of armed bands. Such circumstances will also include the
activities and attitudes of third states, and, in the present case,
the role of the Government of Sudan.
238. In what follows, the emphasis is upon legal
considerations, but the Court's attention is respectfully drawn to
the importance of the facts and the need to appreciate the
circumstances which faced the Republic of Uganda over a long
period of years and involving successive Congolese
administrations.
A. The Assertion OfTheDRC That There Was
NoAggression OnTheFacts For WhichShe
WasResponsible
239. A considerable section of the Reply is devoted to the
assertion that there was no aggression on the facts for which the
DRC was legally responsible. (DRCR, paras. 3.04-3.115.) At
the outset the Republic of Uganda rejects this assertion. The
evidence has been rehearsed in considerable detail in the
Couïzter-Memorial, Volume 1, at pages 1 to 75, and in ChapterII of the presentRejoinder. (UCM, paras. 1 -101 ;supra, paras.
64-88.)
240. Apart frorrithe assessment of the evidence as such, the
assertion of the DRC is substantially undermined by a series of
major considerations. In the first place,the factual argumentsto
the effect that the DRC "was not involvedin" armed attacks are
divorced from the definitions of aggression carefully rehearsed
in the Counter-Memorial of Uganda.
24 1. In particular, the Counter-Memorial provides evidence
of the existence of an alternative view according to which the
giving of logistical support to armed bands with knowledge of
their objectivesmay constitute an armed attack. (UCM, paras.
350-58.) Moreover, there can be no doubt that a State incurs
state responsibility for harbouring armed bands on its territory
when it has the knowledge, or means of knowledge, that such
armed bands are carrying out activities against neighbouring
States.
242. The key point is that the DRC is setting the legal
standard too high in insisting that there must be either evidence
of involvement in particular armedattacks (DRCR, paras. 3.12-
3.17), or evidence of involvement in the organisation and
functioning of the irregular forces. (DRCR, paras. 3.18-3.24.)
Much of the argument in Chapter III of the Reply has its
foundation inthese faulty legal premises.
243. In thesecond place, the pertinent section of the Reply
contains a long series of admissions against interest. The first
of these admissions appearin paragraph 3.10 as follows:
3.10. Toute 1'argumentation de 1'Ouganda
repose sur le postulat que la RDC aurait été
impliquée dans les actions de forces
irrégulières opéranp trincipalement à partir
de la régionfrontalière séparant les deux
pays. Pour bien comprendre cet aspect du
litige, ilfaut avant tout rappeler que la zone
dont 11est question a toujours étéle repère
de mouvements irrégulies agissant à l'encontredes gouvernements tant du Congo
puis du Zaïre, d'une part, que de l'Ouganda
d'autre part. Aucun des deux Etats n'a
jamais réussi à contrôler durablement cette
frontière au relief accidenté, avec pour
conséquence queles Monts Ruwenzori ont
traditionnellement étéutiliséscomme bases
arrières par les factions armées
d'obédiencestrèsdiverses."
(DRCR, para. 3.10.)
244. A further series of admissions appears in paragraphs
3.13 to 3.14, as follows:
3.13. En premier lieu, il serait totalement
erroné de penser que les attaques de
mouvements rebelles ougandaisont débuté à
lafin de 1997 ou au début de1998, voire au
mois de mai, juin ou août de cette année,
soit à l'époque où, selon la partie
ougandaise, ces mouvements auraient
commencé à obtenir le soutien des autorités
de Kinshasa. En réalité, les attaques de
rebelles ougandaise se sont poursuivies
depuis de trèsnombreusesannées.
3.14. Ces attaques se sont notamment
poursuivies pendant la période où les
autorités ougandaises appuyaient
résolument le mouvement dirigé par
Laurent-DésiréKabila lors de la guerre
7'"3.10.Uganda's entire argument is based on thepremise that the DRC
was involved in the acts of the irregular forces operating mainly around the
borderarea between the two countries. In order to understand this aspect of
the case, it mustst and foremost be remembered thatthe area in question
has always been the theatre of irregular rebel movements acting againstboth
the governments of Congo and Zaire on one hand, and of Uganda on the
other. None of the two States has ever been able to sustainably control this
border whose terrain is uneven. Consequently, the Rwenzori Mountains
have traditionally been used ashases for types of armed factions." civile a:uZaïre qui a mené au renversement
du Ma.récha1 Mobutu. Pour ne reprendre
qu'un exemple, le 19 mai 1997, on signale
ainsi que I'ADF opère à partir des Monts
Ruwen:sori tandis que, plus au nord, des
attaques de la L.R.A. sont signalés, faisant
48 victimes. Ainsi donc, au moment même
où le mouvement menépar Laurent-Désiré
Kabila et les autorités de Kampala
entretiennent les relations les plus étroites,
les rebelles ougandais sont en mesure de
mener ou de poursuivre des actions
militatres à travers lafrontièr-e.72
(DRCR,paras. 3.1.3-3.14.)
245. In paragraphs 3.15 and 3.16, it is also accepted that the
position remainedthe same even after the fa11of Mobutu. This
is a key element in the development of the history of relations
up to August 1998, as Uganda demonstrated in her Counter-
Memorial. The relevant passages are as follows:
3.15. (Ma n'a,fort logiquement,pas changé
avec l'installation du nouveuu régime à
Kinshusa. Comme elles l'ont toujours fait
dans le passé, les forces de I'ADF ont
" "3.13. To begin with, it would be totally false to think that the attacks by
the Ugandan rebel movements began at the end of or at the beginning
of 1998,or in May, June or August 1998,that is, according to the Ugandan
authorities, the time whense movements began getting assistance from
the Kinshasa authorit.ies. In reality, the attacks by Ugandan rebels began
many years earlier.
3.14.These attacks, in particular, took place at the time when Ugandan
authoritiesesolutely supported the moveinent led by Laurent DésiréKabila
during the civil war in Zaire which led to the overthrow of Marshal Mobutu.
For example, on 19thMay 1997,it wasreported that the ADF was operating
in the Rwenzori Moiintain rangesle, in the north,LRAemade attacks
in which48 people dlied. Thus, even at the time when the movement led by
Laurent Désiréabila and the Kampala authorities had the closest relations,
the Ugandan rebelcarried out military attacks at the border."continué de se réfugier en territoire
congolais. Dès le mois de mai 1997, il
semble d'ailleurs que certains membres des
ex-FAZ(Forces annéeszaïroises)et ex-FAR
(Forcesarméesrwandaises) se sontjoints à
cette force rebelle. L'ADF gagne alors
momentanément despositions dans l'ouest
de Z'Ougarzda, et ses opérations se
poursuivent deplus belle.
3.16. Absolument rien n'indique que les
nouvelles autorités congolaises soient
impliquéesdans ces attaques. En réalitél,e
renversement du régime du Maréchal
Mobutu ne paraît gu2re avoir modifié la
situation sur le terrain en Ouganda. Les
différentes forces rebelles maintiennent
leurs activitésper~danttoute la périodequi
fait l'objet de notre analyse. Les exemples
suivants, qui ize prétendent nullement à
l'exhaustivité,en attestenàsuffisance:
- pour ce qui concenze les membres de la
Lord Resistance Amy (L.R.A.), on signale
des actions militaires enjuillet, en août, en
septembre, en octobre, en novembre 1997.
En octobre, on estime que ces attaques ont
causéla mort de près de 700 civils pour
l'année1997. Le mouvement se poursuit
l'aiznéesuivante, erzjanvier, février, ou
mars. D'autres attaques se répètent
erzsuite, une 'offensive majeure' étant
signaléeen mai 1998.
- On signale par ailleurs des attaques du
West Nile Bank Front (WNBF), ou de
I'UNRF-II (Uganda National Rescue
FrontII)pendant cettepériode.
- Les attaques de L'Allianceof Democratic
Forces (ADF) se poursuivent elles aussi. On peut en relever pratiquement chaque
mois. L'ADFaurait égalementmenédes
attentats dans la capitale. Le 8juin 1998,
Z'ADF mène une attaque sanglante en
massacrant deprès de 80 étudiantsdans le
collèipetechnique de ~ishwamba.~~
(DRCR, paras. 3.115-3.16.) In these paragraphs from the Reply
the DRC admits the activities of the named groups on its
territory but fails to appreciate the legal context. Even if the
DRC did not directly participate in such attacks (which is not
admitted by Ugarida), the DRC still bears State responsibility
for tolerating the activities of these groups of which it had
knowledge or the means of knowledge. (CJ:the CotjfuChannel
Case (Merits).)
73"3.15. Logically, that did not change with the take over of power by the
new regime in Kinshasa. As they haddone in the past, the ADF continued to
take refuge on Congolese territory. From May 1997,it seems that certain
members of the ex-FAZ (Zairean Armed Forces) joined this rebel force. The
ADF thus momentarily captured areas in Western Uganda, and its operations
are continuing strongly.
3.16. Nothing shows that the new Congolese authorities were involved in
these attacks. Marsbal Mobutu's overthrow does not seem to have changed
the situation on the ground in Uganda. The different rebel forces maintained
their activitiesring;the entire period that we are analyzing. The following
examples, which are not atal1exhaustive, clearly show this:
Concerning the Lord's Resistance Army (LRA), military rebel
attacks were reported inly, August, September, October and
November 1997. In October, it was estimated that these attacks had
caused the dleathof almost 700 civilians in 1997. The attacks
continued in the followingear, in January, February and March.
Otherattack;~took place, while a major offensive was reported in
May 1998.
Furthermore, attacks by the West Nile Bank Front (WNBF), or
UNRF II (LlgandaNational Rescue Front II)were also reported
during this period.
The attacks by the Allied Democratic Forces (ADF) also continued.
They took place almost everymonth. TheADF is also alleged to
have carried out attacks in the capital city. On 8th June 1998,the
ADF made a bloody attack by massacring about 80 students of
Kichwamba Technical College."246. In the same chapter, the DRC also emphasises the
significance of "[Iles actions menéespar la RDCpour assurer
la sécurité à sesfrontièt-es."74(Heading before DRCR, paras.
3.26-3.43.)
247. The chronology of this section of the Reply is
significant. The security problems chronicled started in 1994
and the DRC's version of eventsends in August 1998. There is
a degree of correspondence here between thematerial presented
in the Courzter-Mernorial, Chapters 1, II and III, and the
chronologicalsegments used in the Reply. The correspondence
works out as follows:
248. (i) Reply: The problems in Kivu 1994-1998,
paragraphs 3.29 to 3.32, and the Counter-
Mernorial, paragraphs 11to 32.
(ii) Reply: Other SecurityProblems, paragraphs
3.33 to 3.34, and the Counter-Mernorial,
paragraphs 33to 51.
249. The Court will find that thefactual account provided in
the Counter-Mernorialis much fuller than that of the Reply,and
also more coherent, better documented and generally much
more cogent. However, for present purposes, the significance
of the passages in the Reply noted above, is the confirmation
they provide of the persistent activity of armed groups in the
border areas of the Eastern Congo. This confirmationis no less
cogent by reason of the absence of reference to the extent to
which the authorities of the DRC gave direct assistance to the
armed groups. (Supra, Ch. II, paras. 64-77.)
250. In the same section of the Replythere is a descriptionof
the CO-operationbetween the DRC and Uganda in dealing with
problems of border security in the period September 1997 to
April 1998. (DRCR, paras. 3.37-3.41.) The same subject
matter was, of course, carefully examined in the Counter-
Mernorial. (UCM, paras. 334-40.) When these two versions of
the problemof border security are compared, it will beseen that
'."[tlhe actitakenby theDRC to ensure security at her borders."the version given in the Reply fails to record the threats to the
security of Uganda and its citizens which developed after the
Protocol concludetlon 27thApril 1998.
251. The deteriioration in the period post-April 1998 is
examined fully in(the Counter-Mernorial. (See UCM, paras.
38-42, 44-51, 360.-71 .)It is unfortunate that the Replyends the
pertinent narrativeabruptly(in April 1998)at paragraph 3.41.
252. The efforts of the DRC to misrepresent the actions and
policies of Uganda in the relevant historical period lead the
Applicant State to resort to somewhat tangential methods of
proof. (DRCR, paras. 3.44-3.67.) This section of the Reply is
concerned to establish two, rather different, propositions. First,
that "Uganda did. not make any officia1 protests against the
Congolese authorities." (DRCR, para. 3.44.) And, secondly,
that the Ugandan Government "has never, before the present
case began, accused its Congolese counterpart of armed
aggression." (DRCR,paras. 3.46, 3.47passim.)
253. As a prelirninarystep, it is necessaryto establish that the
legal question is not whether Uganda made protests, or made
accusations of aggression. The legal question, appropriately
formulated,is whether there is adequateevidence of a pattern of
acquiescenceby lJganda in face of the policies of the DRC and
the resulting substantial threats to the security of Uganda. The
evidence of such acquiescence necessarily includes al1 the
expressions of the position of the Government of Uganda and
cannot be restricted to the incidence of formal protests.
254. In fact, the evidence available shows that at appropriate
junctures the UgiindanGovernment made its views very clear,
whether in the form of speeches in the political organs of the
United Nations or in other public statements. The evidence
offered in the Rejdywill now be examined (for this purpose, the
rubrics employedin the Replywill be utilised). (1) May 1997-April1998
255. In this period there wasa systemofjoint CO-operation in
place. (UCM, paras. 288-97.) The text of the Reply recognises
this. (DRCR,paras. 3.47-3.49.) It goes without saying that this
system of CO-operationinvolved theconsent of the DRC. The
joint regime for maintenance of border security was abandoned
when, in the monthsof July and August, thesystem had ceased
to work effectively as a consequenceof changes in the policies
of President Kabila. In the context of the periodof CO-operation
there wasclearly no cal1for protests.
(2) May 1998-July 1998
256. In this period, there were noforma1protests. The reason
for this was no doubt the relative absence of specific incidents.
However, the situation was changing for the worse and the
Reply recognises that"audébut du mois demai 1998...certaines
critiques semblentavoir été émises à l'encontre de la RDC."~"
(DRCR,para. 3.50.)
257. The DRC recognises that the Ugandan Government did
not seek to exacerbate the situation and theReply refers to the
fact that the appallingatrocity at Kichwamba College on8 June
1998 did not cause President Museveni toaccuse the DRC of
responsibility. (DRCR, para. 3.53.) This fact is by no means
decisive in legal terms and the absence of protest does not
removethe illegalityof such acts.
(3) August-September 1998
258. In this period, no forma1 protests emanated from
Uganda. However, the DRC acknowledges that a number of
public statements were made in which President Museveni
made very explicit complaints about the threats to Uganda's
security emanating from the territory of theDRC. (DRCR,
paras. 3.56-3.61.)
75
"at the beginnofgMay 1998.. certain çriticisms were for the first time
made against tDRC."259. The key statements made by President Museveni were
as follows:
Statementof 24 August 1998,quoted in the
(i) Reply at paragraph 3.59; and
(ii) Press Release, State House, 16September 1998,
quoted in the Reply at paragraph 3.59.
260. The attitude of the Ugandan Government was described
in the General Assembly of the United Nations bythe Hon.
Minister of State for Foreign Affairs on 23 March 1999, as
follows:
As the situation of rebellion in the
Democratic Republic of the Congo
worseriied, President Kabila -- like his
predecessor, Mobutu -- went to Khartoum
and worked out a deal with President Al-
Bashir of the Sudan for the latter to step up
support to the Ugandan rebels on the
territory of the Democratic Republic of the
Congo. Indeed, after that more Ugandan
rebel groups were mobilized by the Sudan
and moved to the Democratic Republic of
the Congo. The support to Ugandan rebels
by President Kabila's Government has itself
since become evident. The Uganda Peoples
Defence Forces and the Congolese rebels
have captured many Ugandans belonging to
the different rebel groups operating inside
the Congo. The Lord's Resistance Army,
the Uganda National Rescue Front, theWest
Nile IBank Front, the Allied Democratic
Force:;,which 1havejust mentioned, and the
formeirUganda Army, under the command
of Idi Amin's son, Taban Amin, are now
part and parcel of the pro-Kabila armed
alliance led by Zimbabwe. This is in
addition to the génocidairesof Rwanda, the
interahamwe and the former FAR. These are criminal gangs that have inflicted untold
misery on the people of Uganda. They
attacked, for example, Kichwamba
Technical College in western Uganda in
June 1998. The students were lockedinside
their dormitories, which were then dowsed
with petroland set on fire. Those who tried
to escape were gunned down. Morethan 50
students were burnt to death, andmore than
100of the survivorswere abducted.
It would have been a grave omission of its
national duty if the Uganda government had
not taken appropriate measures to address
this threatagainstOurnationalstability.
(UCM Annex42, pp. 14-15.)
261. This detailed statement, involving a retrospective
assessment of the facts, provides unequivocal evidence of the
long-term position of Uganda subsequentto the breakdown of
the systemofjoint actionfor maintaining border security.
(4) October 199RJune 2000
262. In this section of the Reply the DRC acknowledges that,
in the pertinenttime frame, the Ugandan Government hadmade
specific complaintsabout theharmful policies of the DRC on at
least six occasions. (DRCR, paras. 3.62-3.67.) The occasions
were asfollows:
(i) Statement by Presidents Museveni and
Kagame, early October 1998 (DRCR, para.
3.63);
(ii) Statement by President Museveni, 14
October 1998(ibid.);
(iii) Letter to the Security Council from the
Ugandan Government, 15 December 1998
(UCMAnnex 32, pp. 4-7); (iv) Statement of Minister of State for Foreign
Affairs in the UN General Assembly, 23
March 1999(UCM Annex 42);
(v) Letter to the Security Council from the
Ugandan representative, 8 September 1999
(UCM Annex 48); and
(vi) President Museveni, speech to the Ugandan
Parliament on 28 May 2000 (UCM Annex
66, p. 6).
263. The DRC suggests that these expressions of opinion, at
the highest level, do not count because they do not involve a
"forma1 accusatiolnof aggression" or refer to a "real armed
aggression." (DRCR, paras. 3.63, 3.64passim.) But, of course,
this is irrelevant because the relevant passages provide clear
evidence of the gleneralopinion of Uganda. The overall effect
is at least the equivalent of aies of protests.
264. The documents available establish that there is no
evidence of a pattern of acquiescence on the part of Uganda in
the delictual conduct of the DRC. The evidence presents
instead a pattern of consistent complaint and resentment. The
fact that no "forma1 accusation of aggression" was made is
surelybeside the point.
265. It may be recalled that in the Co$u Channel case the
Court relied on v,ariouscircumstances in order to determine the
attitude of Albania in respect of its territorial waters. (SeeI.C.J.
Reports, 1949,pp. 18-20.) It is a matter of common sense that
al1 the evidence be taken into account, and not merely the
incidenceof formialprotests.
B. The ConditionsNecessaryForThe Legal
JustificationOf Self-Defence
266. The relevant sectionof the Replyrelating to the question
of self-defence c;omplainsthat the Counter-Memorial did not
"respond directly" to the arguments presented in theMemorial,
but contradicted the arguments. (DRCR, para. 3.1 17.) Ugandaconsidersthat shedid respond to theMernorialas far as this was
possible, giventhe substantialinadequaciesof that document.
267. In any case, States are allowed to determine the
modalities of pleading, and in relation to the definition of
aggression and associated matters, Uganda considered it
necessary to establish her own positionon these matters. Thus,
the subject wasdealt with, and dealt withcarefully, at pages 190
to 216of the Counter-Mernorial. (UCM, paras. 341-37 1.) The
Government of Uganda provided a much more substantial
account of the subject than did the DRC in Chapter V of the
Mernorial.
Thedefinitionofarmed attack
(1)
268. In any event, the DRC takes the view that the two
parties agree on the legal notion of armed attack within the
meaning of Article 51 of the Charter. (DRCR, para. 3.118.)
This is only true up to a certain point. In fact, the Counter-
Mernorial was careful to indicate an alternative viewaccording
to which the position of the majority of the Court in the
Nicaragua case was excessively narrow. (UCM, paras. 350-
54.) TheReplyevinces someshock that Uganda should point to
such alternative views andappears to forget that the Courtdoes
not adhere to a rigid doctrine of precedent. Article59 of the
Statute of the Court prevents the Court "from treating its
previous decisions as binding ..." (See Oppenheirn's
International Law, Vol. 1, 1992,p. 41 ;Hersch Lauterpacht,The
Development of InterrzntionalLaw by the International Court,
London, 1958.pp. 8-15.)
269. In any event, it must be obvious that the concept of self-
defence, even in the context of Article 51 of the Charter,
involves a necessary power of appreciation involving reference
to contemporary standards of reasonableness and the regional
context. In the presentcase, the regional context consistsof the
political history of the DRC and the persistent turbulence in
eastern Congo.
270. In the opinion of Uganda, in view of the content of the
Counter-Memorial, and the contentof the Reply,relating to thetopic of self-defence, the parties have now joined issue
sufficiently, and t:hereis no point in repeating the arguments.
Uganda reaffirms the materials presented in the Counter-
Mernorial and thr: related propositions at pages 210 to 216.
(UCM, paras. 359-371 .) In particular, Uganda reaffirms the
followingpassage::
359. The results of this survey of the most
authoritative legal sources can be formulated
as follows. For the purposes of applying the
provisions of Article 51 of the Charter, the
concept of an "armed attack" includes the
followiing elements, taken both separately
and cumulatively:
(a) The sendingby a State of armedbands to the
te:rritoryof another Statein conditions in
which, had theoperationbeen carriedout by
regular armed forces, it would have been
cilassifiedas an armed attack(rather than as a
rrierefrontier incident).
(b) The sponsoringof armed bandsby a Stateby
the provision of logisticalsupport in the form
of weapons, trainingor financial assistance;in
these circumstances, and inthe presence of a
sharedpurpose, the armed bands become
agents, or "defacto organs," of the sponsoring
S'tate.
(c) The operationsof armed groups which form
part of thecommand structureof the armed
fiorcesof the Stateconcerned, whatever the
nomenclatureused todescribe individual units.
(d) In other circumstances inwhich there is
e:videnceof a conspiracy betweenthe State
concerned and the armedbands fightingagainst
the Statetaking action in self-defence.
(UCM, para. 359.)271. This being the position of Uganda at this stage, there is
nothing to be gained from a detailed response to thevarious
debating pointsraised inthe Replyat paragraphs3.123to 3.152.
272. Many of these debating points would, in any event, be
found to lack adequate legal foundations. The reference to
Article 8 of the Articles adopted by the International Law
Commission on State Responsibility can be taken as an
example. (DRCR, para. 3.131.) Article 8 is not, of course,
concerned with self-defence, and does not have the effect of
placing constraints upon the provisions of the U.N. Charter.
Article 59 of the Articles provides: "These articles are without
prejudice to the Charter of the United Nations." Reference
should also be made to the Commentary to Article 21 as
adopted by the Commission.
273. Other points made are rather eccentric. The DRC is
very exercised by the fact that the Counter-Mernorial invokes
the practice of the United States. (DRCR, para. 3.140.) Butit
is a part of the relevant materials. The DRC suggests that
Uganda adopted a different position in the "Group of 13."
(Ibid.) However, even if this were the case, the principle of
estoppel does not attach to propositionsof law as opposed to
statements of fact. (See Bowett, British Year Book, Vol. 33,
1957,p. 176.) It is, of course, permissible fora State to change
its opinion on matters of law.
274. A third example can be taken. In her Reply, the DRC
challenges the view that conspiracy can constitute an armed
attack. (DRCR, paras. 3.145-3.150.) Once again, the DRC's
draftsmen evince a degree of shock. But theshock could have
been ameliorated by an infusion of legal reasoning. The
provisions of the United Nations Charter, and theelements of
the definition of aggression,are to be applied within thecontext
of general international law and the principles of State
responsibility. The concept of conspiracy is clearly
recognisable as a general principle of law of relevance tothe
application of the principlesof State responsibility. Nothingin
the Articles on State Responsibility precludes the application of
the conceptof conspiracy.275. In this coritext the observations of Professor Dinstein
may be recalled:
As observed by R. Ago, in a report to the
International Law Commission, when a
State "encourages and even promotes" the
organisation of armed bands against another
State (i.e. if it provides them with weapons,
training or financial assistance), the bands
may be considered "defacto organs" of the
State. The International Law Commission
stated that whenever individualsor groups in
fact act on behalf of a State, their conduct is
attributed to that State and is considered an
act of State under international law. Arms
shipme:ntsalone may not be equivalent to an
armed attack. But when the overall policy
of the .ArcadianGovernmentdiscloses that it
conspiireswith armed bands fighting against
Utopia, Arcadia is definitely committing an
armed attack.
(Dinstein, War,A,ggressionand Self-Defence,Cambridge, 1988,
p. 190(footnotesomitted).)
276. Itis unfortunate that the Replydoes not find it necessary
to offer a detailed examination of the views of this significant
authority. They (:anbe found in the Counter-Mernorial, pages
199to 20 1. (UCM, para. 349.)
(2) Thequestion ofproportionality
277. This question of responsibility for conspiracy is of
relevance in these proceedings because the role of Sudan, in co-
operation with the DRC, generates responsibility on the part of
the DRC. The role of Sudan has been described above in
Chapter II. (Suprva,paras. 78-88.) It isclear from the evidence
available that the Sudanese forces were in the DRC as a result
of a licencefrom the Government of the DRC and with thejoint
purpose of usin.g the armed groups in eastern Congo to
destablise Ugand.a.278. The Replymakes the assertion that Uganda didnot make
a necessary and proportionate response. (DRCR, paras. 3.159-
3.184.) The element of proportionality forms a part of the
concept of self-defence and this position is shared by both
parties. (DRCR, para. 3.159.) The essence of the matter is, of
course, the application of the principle to the facts of the
particular case. Uganda affirms her position that the action
taken on the territory of the DRC constituted lawful self-
defence, and adheres to her account of the circumstances
provided in Chapter XVII of the Counter-Mernorial, and, in
particular, the problemsof border security described at pages
18 1 to 190, and also at pages 211 to 216. (UCM, paras. 334-
340, 360-371 .)
279. It will be convenient, for the purpose of rebuttal, to
adoptthe headings used in the Reply.
(a) The officia1justificationput
forwardby the Unandan
authorities
280. In this sectionof the Replythe DRC refers toa series of
statements made on behalf of the Government of Uganda,
which, theDRC accepts,provide information as to "the official
objective" of the actiontaken by Uganda. (DRCR,para. 3.163.)
The objectivesrevealed in the statements quotedare as follows:
First: The needto combat ADF and other
lawlesselements inDRC territory nearto
Uganda in the Rwenzori district;
Second: The need to prevent actsof
destabilisationemanating from DRC
territory;
Third: The need todeal with anti-Uganda
terrorists fromSudanin transit through
the DRC;
Fourth: The need to neutralise remnantsof the
supportersof Idi Amin; Fifth: To demobiliseelements of the
Interahamweand ex-FAR and to prevent
them fromterrorising areas within
Uganda; and
Sixth: To protect Uganda from invasion by
Kabila'sforces.
281. The DRC in this section accepts that these are the
officia1 objective:; of Uganda. (DRCR, paras. 3.162-3.164
passim.) The text makes insinuations of other purposes but
does not produce proof. The context of this material, it is to be
recalled, is the issue of proportionality. The DRC has
summarised the case for necessary action in the months after
August 1998rathe:rwell.
282. The elements which are relevant to any appreciation of
the proportionalityof Uganda's actionsincludingthe following:
(i) The absence of any stable State structure in
the easternprovinces of Congo;
The alliance between President Kabila and
(ii) other agencies, and particularly the Sudan,
which were hostileto Uganda;
(iii) The long history of terrorism and aggression
by armed bands established on the territory
of the DRC and the appalling effects of that
aggression against the populationof Uganda,
as in the atrocity at Kichwamba on 8 June
1998;
(iv) The results of the formation of the rnilitary
alliance between President Kabila and Sudan
are described in the Counter-Memorial at
pages 30-32. (UCM, paras. 38-41.) The
extent of the Sudanese involvement is
described in Chapter II above. (Supra, paras.
78-88.) The Sudanese forces were located in
a series of bases in northern Congo and their
presence, and the existence of a Sudanese- related command structure, was the subject
of a licencefromthe DRC;
(v) The appearance of Sudanese armed forces in
the DRC was a new and serious threat to
Uganda's territorial integrity, especially in
light Sudan7s long history of aggression
against Uganda, her stepped-up role in
training and delivering matérielto the FAC
and anti-Uganda insurgents, her efforts to
rally other States, including Chad, against
Uganda, and al1the other steps set forth in
ChapterIIhereof;
(vi) The complicity of the DRC in these activities
or, in some cases, the incapacity of theDRC
authorities to deal with the persistent threat
to the territory and population of Uganda;
and
(vii) The cumulative effect of these various types
of threats.
283. The decisive circumstance is the long-term absence of
any, or of any effective, State administrationin eastern Congo.
This is evidenced by the record and is admitted by the DRC in
its Reply. (See, e.g., DRCR, para. 3.10, 3.98.) This was the
relatively unusual situation which confronted Uganda, and this
background shouldnot be ignoredby theCourt.
284. The statementsby Ugandaof the necessityfor action are
not legalisticin style but they are clear in content. Moreover,
the cumulative effect is considerable, not least when the
question tobe addressed is that of necessityand proportionality.
Moreover, it is surely necessary to recognisethat a State in the
position of Uganda must have the benefit of a margin of
appreciationin relationto the dimensionsof the perceived threat
and the meansof dealingwith that threateffectively. (b) The alleiredabsence of protest,
notice or prior ultimatum
285. The DRC contends that the commencement of Uganda's
military intervention without any protest, notice or prior
ultimatum shows that there were alternative ways to the useof
force. (DRCR,paras. 3.165-3.167.) This is a naïve view of the
facts and ignores the long-term character of the turbulence in
the border areas and the resulting persistent threats to the
territory of Uganda. The long-term threat to security has been
described in the Counter-Memorial at pages 181 to 187 (See
also pp. 187-90 on the short-term threat.) (UCM paras. 334-
340.)
286. And in this context, the DRC in the Reply recognises the
threats which existed over a long period: this recognition
occurs in paragraph 3.98, as follows:
En premier lieu, les sources neutres et
objectives n'établissent nullement que le
Zaïre ait été impliqué dans des attaques
militaires menées par des forces rebelles
ougandaises. Personne ne nie que, comme
de tout temps, cesforces ontà cette époque
traver:~lafrontière etpossédaientcertaines
de leurs bases des deux côtésde celle-ci.
Ainsi, un rapport établit que, durant les
dernières annéesde la présidenceMobutu,
"Anti-Museveni forces (the Allied
Democratic Forces, the Lord Resistance's
Amy and the West Nile Bank Front) were
using Congo as a rear base from which to
launclz attacks against Uganda." Cela
s'explique trèsfacilement par lesdiflicultés
de ccwtrôler cette zone, comme l'admet
d'ailleurs le contre-mémoire ougandais:
"They were able to operate unimpeded in
this region because of its mountainous
terrain, its remoteness from Kinshasa (more
than 1,500 kilometers), and the almost
complete absence of central government presence or authority in the region during
President Mobutu's 32-year term in
office."76
(DRCR,para. 3.98; footnotes omitted.)
287. The events relate to the period up to 1997, and theReply
is hereconfirming the long-term natureof the threat.
288. As to the alleged lack of protest or ultimatum, the
evidence of the attitude of the Governmentof Uganda mustbe
examined as a whole. There is, in fact, ample evidence of the
general position of Uganda inface of the persistent threats.
(Supra, paras. 253-65.)
(c) The allegedextent of Uganda's
"occupation"
289. The DRC asserts that the extent of Uganda's
"occupation" of Congo's territory shows that the means used
were not proportionate. (SeeDRCR, paras. 3.168-3.172.) The
extent of Uganda's presence was functional. In other words it
was directly related to the logistical and military needs of
neutralising the bases which were availableto Sudan in moving
men, and aircraft, into the DRC. The situation which faced
Uganda inSeptember 1998is describedin detail in the Counter-
Mernorial at pages 37 to 43 (UCM, paras. 47-54), and is
reiterated in Chapter II above. (Supra, paras. 64-88.) The
location of Ugandan forces was dictated by the necessity to
drive the Sudaneseforces fromeastern and northeasternCongo,
and to take control of a series of major military airfields, as
follows (from east to west): Isiro, Buta, Bumba, Lisala, and
76'&Firstf all, neutral and independent sourcesdo not show anywhere that
Zaire was involved in military attacksed out by the Ugandan rebel
forces. Nobody can deny the fact that, like in other times, during this period.
these forces used to cross the border and had bases on both sides of the
border.Thus, a report established that, during the last years of Mobutu's
presidency, 'Anti Museveni forces(the Allied Democratic Forces, the Lord's
Resistance Army andthe West Nile Bank Front) were usingCongo as a rear
base from which toaunch attacks against Uganda.' This was because this
area is very difficult to controlCounter-Mernoriaitself admits:"Gbadolite. The territorial extent of Ugandan control was thus
limited to the joint purposes of terminating the threat posed by
the Sudanese forces and the associated actions against the
insurgents operating in alliance with the Sudanese armed forces
and the DRC armed forces. (Supra, Ch. II, paras. 170-77.)
(d) The alleged duration of Ug-anda's
"occupation"
290. The DRC also asserts that the duration of Uganda's
"occupation" is evidence that the means used by Uganda were
not proportionate. (DRCR, paras. 3.173-3.177.) In fact, the
duration of the presence of Ugandan forces was directly related
to the defensive objectives indicated in the previous paragraph.
In any event, once the Lusaka Agreement of 10July 1999was
in force, the provisions of the Agreement established a
comprehensive peace process which encompassed a regime of
agreed withdrawals. (Supra, Ch. II,paras. 213-26.)
(e) The modalitiesof Uganda's
military action
291. A further contention advanced in the Reply is to the
effect that an analysis of the "modalities" of Uganda's military
action shows tlnat the means used by Uganda are not
proportionate. (DRCR, paras.3.178-3.180.)
292. In this cointextthe DRC makes three separate assertions.
The first refers to the DRC's accusations that Uganda provided
support to several rebel movements. (DRCR, para. 3.178.)
This aspect of the case has been examined in detail above in
Chapter II (supra, paras. 156-60, 180-210), and there is no
sufficientevidence to suggest that the purpose of the actions of
Uganda had the rnotivation suggestedin the Reply.
293. The second separate assertion advanced in the Reply
refers to the general complaint by the DRC concerning the
alleged exploitation of natural resources. (DRCR, para. 3.179.)
This subject is exarninedin detail in ChapterIV below. Uganda
denies these allegations on the facts. However, it is also
appropriate to point out that illegal actions by individual
members of the armed forces would not, as a matter of law andcommonsense,deprive the actiontaken of its character as action
by way of self-defence.
294. Finally, the DRC invokes her allegations concerning
human rights violations. This subject is examined in detail
below in Chapter V. Uganda denies these allegations on the
facts. Moreover, as stated already, it is appropriate to point out
that illegal actions by individual membersof the armed forces
would not, as a matter of law and commonsense, deprive the
actiontaken of its character as action by wayof self-defence.
(f) The relevanceof the Security
Counçil Resolutions
295. In theReply the DRC asserts that the contentof certain
Security Council resolutions confirms that the measurestaken
by Uganda were"pas 'nécessaires'au sens de 1'article51 de la
(heading,DRCR,paras. 3.181-3.183.)
296. In this section, the DRC relies upon a series of
arguments which simply lack a legal foundation. In the first
place, the wording of Article 51 of the Charter does not
preclude either the Court or the political organs from making
the necessary determinationsof fact, and its applicationdepends
upon such determinations of fact. The article is not self-
executing .
297. In the second place, the Court, as the principal judicial
organ of the United Nations, hasan autonomous responsibility
for the settlementof disputes. The role of the politicalorgans in
this respect has beenexamined in sorne detail in the Counter-
Memorial, Chapter IX at pages 111 to 120, and the Courtis
respectfully referred thereto. (UCM,paras. 188-206.)
298. The Government of Uganda affirms the positions
adopted inChapter IXof the Counter-Mernorial.
77'6not 'necessary' within themeaning of A51oflthe United Nations
Charter." TheIssueOfThe ConsentOfTheDRC
299. The issue of consent was examined by Uganda in
Chapter XVI of the Counter-Mernorial. (UCM, paras. 288-
328.) This examination was detailed andcomprehensive and its
general content is reaffirmed. (Seealso supra, Ch. II, paras. 89-
99, 213-26.) In kierReplythe DRC raises a number of specific
issues which will now be dealt with by way of rebuttal.
(1) Theassertion that Uganclacannot invoke
the rules whichgovern the responsibility
ofStates
300. This strange assertion simply means that a justification
based upon consent can only apply within the limits of the
consent. (DRCM, para. 5.38; seealso Article 20 of theArticles
on the Responsibiilityof States (2001).)
301. The contention of the DRC in her Replyis, in substance,
that the Respondent State cannot invoke self-defence and
consent at the sa:metime. (DRCR, paras. 3.185, 3.188.) Two
points arise immediately. In the first place, given the
complexity of the situation and the evolution of circumstances
over a long periold,there is no doubt that the two justifications
may bematerial severally in relation to separateperiods of time
and separate episodes. Secondly,there can equally be no doubt
that a military fiorce in place as a consequence of the prior
consent of the territorial sovereign will have an ancillary right
of self-protectionin the light of the nature of its mission.
(2) TheProtocol of27April1998
302. In the Reply,the DRC examines the Protocol of 27 April
1998in some detail. (DRCR, paras. 3.191-3.201 .) In a separate
passage (DRCR, para. 3.189) the question is raised as to when
the consent embodied in the Protocol was withdrawn. This
question was directly addressed in the Counter-Memorial
(UCM, paras. 288-297) and again in Chapter II above. (Supra,
paras. 89-99.) In the relevant passages Uganda presents the
facts, as far as they are known, concerning the question of the
withdrawal of consent. There is a lack of clarity in the facts but
that is not of Uganda's making.303. The DRC, somewhat simplistically, suggests that
Uganda issayingthat the original consent subsisted withoutany
limit. The ordinary reader of the Counter-Memorial would
readily appreciatethat thatis not the position.
304. The precise arrangements resulting from the Protocol
have been described in theCounter-Memorialat pages 22 to 24,
and the Court is respectfully referredto these passages. (UCM,
paras. 31-32; see also supra, Ch. HI,paras. 89-99.) They are
based upon the knowledge of Ugandan officiais. The Reply
suggests that part of the text of paragraph 31 of the Counter-
Memorial is a "fabrication." (DRCR, para. 3.194.) This
unpleasantclaim is not supportedby anyevidence.
(3) Thequestion whether there was an
invitation
305. The DRC is very exercised by the statement in the
Counter-Mernorialthat Ugandan forces had entered Congolese
territory "by governmental invitation." (DRCR, paras. 3.196-
3.198.) The picture is described carefullyin Uganda's Counter-
Memorial at pages 22to 23 and 16 1. (UCM,paras. 30-31,288-
291; see also supra, Ch. II, paras. 89-99.) The DRC produces
arguments flawed by two major misconceptions. The first is
that the Protocol of 27 April 1998 was the only form of
relationship betweenthe DRC and Uganda --in fact there was a
pattern of relations prior to the Protocol. The second
misconception is tofail to recognise thata Government has the
right to speak of its own knowledge and that not al1
developmentscan be neatlydocumented.
306. In the outcome, the presence of Ugandan forces was
originally based upon a form of informal consent, which ante-
dated the Protocol.
(4) The assertion that theDRC has not given
its informa1consent
307. The Reply denies that the DRC gave her informa1
consent to the presence of Ugandan forces on her territory.
(DRCR, paras. 3.202-3.210.) However, no evidence to refute
the existence of such consent is presented. There is norequirement of form regarding the existence of consent in
general international law, and the Articles on State
Responsibilityadopted by the International Law Commission in
2001 do not ind.icate otherwise. (See Article 20, referring
simplyto "consent.")
308. The Government of Uganda is entitled to speak of her
own knowledge on this matter. A part of the picture, and an
important part, is thefact that the Protocolof 27 April 1998was
the further forma1 manifestation of a pre-existing informa1
consent. (DRCM, paras. 30-31,288-9 1 .)
(5j Thesignificance ofthe Lusaka
Agreement
309. The Lusaka Agreementwas ignored in the Memorial. In
contrast, in the Counter-Memorial this important instrument
was examined in detail and set in the context of the pertinent
multilateral and iregionaldiplomacy. (UCM, paras. 299-328.)
In the Reply the DRC responds, and responds inadequately, to
the presentation in the Counter-Memorial. (DRCR, paras.
3.211-3.218.) Buitat least the parties appearto have nowjoined
issue on the Lusaka Agreement.
310. It is obvious that the DRC considers it to be in her
interest to belittle the political and legal significance of the
Lusaka Agreement and this leads the DRCto adopt indefensible
positions on a number of questions. In the first place, in the
Replythe recognition by the States of the region of the security
concerns of Uganda, in face of the endemic civil strife in the
DRC, is dismissed as irrelevant. (DRCR, para. 3.211.) This
dismissal is unacceptableboth as a matter of legal logic and as a
matter of political realities.
311. Moreover, as Uganda has demonstrated, the DRC had
given explicit recognition of Uganda's security concerns on
several occasions, including the Summit Meeting at Sirte in
April 1999. (UCM, paras. 309-314.) In the political context,
the Inter-governmental Meeting at Kampala (from 28 May to 1
June 1999) is of'considerable evidential value. (UCM, paras.
312-314.) The purpose was to provide modalities for theimplementation of the Sirte Agreement. This Agreement, and
the Joint Communiquésignedat Kampalaon 1June, anticipated
the forma1commitment of the DRC to the multilateral peace
process in the Lusaka Agreement.
312. The strong elements of mutuality which underpin the
Lusaka Agreement, and the recognitionby the DRC of the
security concerns of Uganda, are reaffirmed in the Luanda
Agreement concludedon 6 September 2002, with themediation
of H.E. President Jose Eduardo Dos Santos of Angola. (UR
Annex 84.) The preamble includes the followingparagraphs:
Consciousof the need to give impetus tothe
stalled implementationof the Lusaka Cease-
fire Agreement;
Further considering the need to normalize
relations, build confidence and bring about
good neighbourliness in order to contribute
to the speedy pacification of Central Africa
and the Great Lakes Region and put an end
to insecurity andinstability;
Conscious of the potential their joint action
can contribute towards removing obstacles
to the full normalization of relations
betweenthe two countries ....
(Ibid.)
313. Article 1 then deals with the withdrawal of Ugandan
troops. Itprovides as follows:
1. TheGOU commits itselfto the
continued withdrawalof its forces
from theDRC in accordancewith the
ImplementationPlan markedAnnex
'A'and attached hereto.
2. TheGOU has unilaterallyand
unconditionallyissuedordersto her
troops in Gbadolite, Beniand their vicinitiesto immediately withdraw
from DRC.
3. The Parties agreeto put in place,
with the assistanceof the United
Nations Organisation Missionin the
DemocraticRepublic of the Congo
(MONUC), a JointPacification
Cornmitteeon Ituriconsisting of the
Parties, political, military,economic
and social forces activein theBunia
area, and the inhabitantgrassroots
communities. In addition, thereto,
Ugandare-affirms herreadinessto
withdraw hertroops from Bunia as
stipulated in Annex 'A'.
4. The Parties agreethat the Ugandan
troops shall remainon the slopes of
Mt. Ruwenzoriuntil the Partiesput
in place securitymechanisms
guaranteeingUganda's security,
including training andcoordinated
patrol of the commonborder.
5. The DRC and the GOU undertaketo
keepthe Government of the
Republic of Angola informedon the
progress of the withdrawal of
Ugandantroops.
(Ibid.)
314. The content of paragraph 4 of Article 1 above is
reinforced by the express recognition of the security concernsof
both parties in Article 2. Article 2 is headed "Security
Concerns" and provides as follows:
In order to respect national sovereignty,
territclrial integrity, political independence
as well as international borders, the parties
agree as follows: 1. To work towards the restorationof
the dignity andsovereigntyof the
DRC aswell as addressUganda's
securityconcerns.
2. To refrain from al1types of military
and logisticalsupportincluding the
provisionof bases and sanctuary to
the armed groups, inter-ethnic
militia, subversiveorganizationsand
al1rebel movements against the
interestsof the Parties.
3. To work closely togetherin order to
expedite the pacification of theDRC
territoriescurrentlyunder the
Uganda control and the
normalizationof the situation along
the common border.
4. To exchange intelligenceon al1
matters of security amongthem.
(Ibid.)
315. The documents discussed in the Counter-Memorial
make very clear the fact that the peace process involveda
waiver of any question of legality of the presence of Ugandan
forces, contrary to the assertionsin the Reply. (DRCR, paras.
3.212-3.215.) In this connection the Court is respectfully
referred to the detailed account of the relevant materials in
Chapter VI of the Counter-Memorial, at pages 51 to 75, and
also Chapter XVI, at pages 164to 179. (UCM,paras. 299-328;
see also supm, Ch. II,paras. 213-15.) Overall, Ugandadevoted
forty pages to thesignificanceof the Lusaka Agreement.
316. Apart from the paucity of the discussion of the Lusaka
peace process in the Reply, there is a persistent reluctanceto
refer to the precise textof the relevant instruments.
317. A further flawin the Reply is the failureto recognise the
elements of reciprocity and complementarity in the LusakaAgreement. As the Secretary-General of the United Nations
explained in a Reportof February 2001to the Security Council:
The Lusaka Ceasefire Agreement
acknowledged the concerns of Rwanda,
Uganda and Burundi over the presence of
the arnnedgroups which threaten thesecurity
of their borders, and recognised that the
withdruwal of Rwandan and Ugandan
troops would be linked directly to progress
made in the disarmament and
demobilization of the militias. The
Agreement called for a mechanism for the
disarming of militias and armed groups,
includingthe genocidal forces.
(UCM Annex 84,para. 88; emphasis added.)
318. There are other points made in the Reply which, in the
opinion of Uganda, lack cogency. They include thefollowing:
(i) The reference to the deadline for the
withdrawal of foreign forces in isolation
from the reciprocal conditions relating to
duties of compliance (DRCR,para. 3.213);
(ii) The content of Resolution 1304 of the
Security Council. (Ibid.) This argument
(contained in the Memorial) was carefully
addressed in the Counter-Memorial at pages
60-63 (UCM,paras. 80-86), and the DRC has
produced no adequate response. In this and
other contexts the DRC should be reminded
that it is necessary to study the pleadings of
the other party withdue diligence;
(iii) The DRC also contends that the Court
refused to hold that Uganda's counter-claim
based upon breaches of the Lusaka
Agreement was admissible has the
consequence that Uganda cannot involve the
Agreement in the context of thecircumstances precluding wrongfulness.
(DRCR, para. 3.216.) What the Courtsaid
on the subject was as follows:
42. Whereas,in respectof Uganda'sthird
counter-claim(alleged violations by the
Congoof the Lusaka Agreement),it is to
be observed from the Parties'subrnissions
that Uganda's claimconcerns quite
specificfacts;whereas thatclaim refers to '
the Congolesenational dialogue,to the
deploymentof the United Nations
Organisation Mission in the Democratic
Republicof the Congo (MONUC)and to
the disarmament and demobilisationof
armed groups; whereasthese questions,
which relate to methodsfor solvingthe
conflictin the region agreed at the
multilateral levelin a ceasefireaccord
having received the "strong support"of
the United NationsSecurityCouncil
(resolutions 1291(2000) and 1304
(2000)),concern factsof a different nature
fromthose reliedon in theCongo's
claims,which relate to acts for which
Ugandawas allegedlyresponsibleduring
that congict; whereas theParties'
respectiveclaimsdo not thereforeform
part of the same factualcomplex;and
whereas theCongo seeksto establish
Uganda's responsibility basedon the
violationof the rules mentioned in
paragraph 38 above,whilst Ugandaseeks
to establishthe Congo'sresponsibility
based onthe violationof specific
provisionsof the Lusaka Agreement;
whereas the Parties are thus not pursuing
the same legalaims;
43. Whereas the Courtconsidersthat the
thirdcounter-claim submittedby Uganda is therefore not directlyconnected with the
subject-matterof the Congo'sclaims[.]
(Order,paras. 4243, emphasisadded.)
319. In the opiiiion of Uganda the words of the Court relate
exclusively to the:issue of admissibility of the counter-claims.
This is very clear when the passage is read as a whole, and the
determination doe:snot affect the arguments of Uganda relating
to the relevance of the Lusaka Ceasefire Agreement to the
DRC's claims against Uganda and Uganda's defences to those
claims. (Seealso supra, Ch. II,paras. 225-26.)
320. Finally, the DRC contends that in the Counter-Memorial
Uganda makes admissions which rule out any invocation of the
Lusaka Agreemerit for purposes of legal justification. (DRCR,
para. 3.217.) The passages cited by the DRC do not correspond
to the question r,aised. However, and in any event, Uganda
denies that there are any passages in the Counter-Memorial
which have the effect contended for. CHAPTERIV
RESPONSETOTHEALLEGATIONSOF ILLEGAL
EXPLOITATIONOFNATURAL RESOURCES
321. This Chapter responds to the factual allegations in
Chapter IV of the DRC's Reply concerning alleged looting and
illegalexploitation of natural resources.
322. The DRC rests her efforts to vilify Uganda almost
exclusively on -- indeed, the DRC often merely parrots --
allegations contained in the April 2001Report of the Panel of
Experts on the Illegal Exploitation of Natural Resources and
Other Forms of Wealth of the Democratic Republic of the
Congo (DRCR Annex 69) (the "First UN Panel Report" or the
"First Report"). That report was so profoundly flawed that the
Security Council created a second UN Panel, which in
November 2001 drafted an Adderzdum to the Report of the
Panel of Experts on the Illegal Exploitation of Natural
Resources and Other Forms of Wealth of the Democratic
Republic of the Congo (DRCR Annex 70) (the "Second UN
Panel Report" or the "Second ~e~ort").~' The Second Report,
by its own admission, did not solve the errors of the First
Report, leading to the preparation of yet another report, the-
called Final Report on the Illegal Exploitation of Natural
Resources and Other Forms of Wealth of the Democratic
Republic of the Congo, submitted only recentlyin October 2002
(the "Third UN Panel Report").
323. The UN Panel Reports were designed to spur debate in
the United Nations Security Council, not to establish liability
for any violation of international law,the purpose to which the
DRC is now attempting to put the Reports. (Infra,paras. 332-
38.)
78In locations where the First Report and the Second Report are quoted in
thisejoinder, the English versions prepared by the United Nations are used
as sources,though the DRC included the French versions as DRCR Annex
69 and DRCR Annex70, respectively.324. The UN Panel Reports, and in particular the FirstReport
on which the DRC primarily rests her claims, are inadequate
even when their limited purpose is considered. The DRC
herself has admitted thatthe UN PanelReports are not credible,
for they make acc:usationswithout any evidentiary basis, fail to
understand thecontext of events, and fail to comprehend when
conduct is illegal. Other States have also widely and correctly
criticised the Reports for the cavalier manner in which they fiiil
to provide evideintiary support for serious allegations. The
Panel Reports resiton unidentified "sources"and "information,"
rather than on sworn testimony, documents, and corroborated
evidence. Despite frequent requests from Uganda and other
States for the evidence supporting the allegations made in the
Panel Reports, none has been provided. The UN Panels in this
case flatly ignored the evidentiary standards imposed by other
UN panels. Because the DRC has constructed her entire case
on a sandy foundation, that case must fail. (Infra, paras. 339-
79.)
325. Al1of the general deficiencies of the UN Panel Reports
infect the particular allegations made against Uganda. Those
allegations are n.ot supported by credible evidence, resting
instead on uncorroborated "information" from unidentified
"sources." The UN Panels refused to provide supporting
information (if ariyexisted in the first place) to authorities in
Uganda seekingto investigate the veryserious charges made by
the Panels. In addition, the UN Panels failed to interviewkey
witnesses or to review publicly available documents, leadingto
error after error that could easily have been avoided. One clear
example of this was the so-called DARA-Forest "case study,"
which the First R.eporthighlighted as an example of Ugandan
criminal conduct, al1of which turned out to be false. (Infra,
paras. 380-405 .)
326. Uganda did not havethe capability to exploit the eastern
Congo in the manner alleged in the Reply. Uganda did not
deploy an army of occupation with control over the geography
and the economy of eastern Congo, as the DRC contends.
Rather, because IJganda entered the DRC only for the limited
purpose of self-defence, fewer than 10,000 UPDF troops were
stationed at keystrategic points to prevent attacks on Uganda byrebels sponsored by the DRC and Sudan and to stop attacks by
Sudan on Uganda. In view of the limited number of Ugandan
troops and their limited deployment, theDRC's allegation that
the UPDF had the ability to control mining, forestry and other
commercial activities is simply wrong. In addition, Uganda's
continued presence in eastern Congo was required by
international agreement, urged by the UN, and most recently
accepted by the DRC, al1 of which would have been
inconceivable had Ugandabeen engaged in the conduct alleged
by the DRC. (Infra, paras.406-13.)
327. The UN Panel Reports also proceed from a number of
erroneous premises. The UN Panels began with the
preconception that the Ugandan military had learned of, and
developed a taste for, the resourcesof the Congo while fighting
alongside rebel forces during the 1996-97 anti-Mobutu
insurrection, which is not true. Moreover, in assuming that
Uganda would commit vast funds to the occupation of eastern
Congo in order to exploit that land, the UN Panels also ignored
the fact that Uganda has vast natural resources of her own
which (assuming she were free fromrebel attacks emanating
from the DRC and Sudan) she could develop without the
expense of military action in the DRC. In addition, the UN
Panels, failing to investigate the actual data, erroneously
assumed that Uganda financed her intervention in eastern
Congo through the exploitation of the area. Finally, the UN
Panels, in assuming that Uganda entered theDRC in order to
profit from taxes imposed on the transit and re-export of goods
from the DRC, ignoredthe fact that no such levies could be
imposed under the Ugandan tax system. Al1 of the DRC's
factual premises are therefore demonstrably incorrect. (Infra,
paras.414-29.)
328. In concluding that cross-border trade constituted illegal
"exploitation," the UN Panel also ignored the fact that such
trade has existed since time immemorial and the factthat the
existence of such trade provides no evidence of illegality.
Rather than being illegal under international law, such trade
provided necessary goods tothose who reside in eastern Congo,
since that area was cut off from the ramainder of the DRC.
Such bilateral trade was entirely legitimate and, in fact,demonstrates that the DRC's allegationsof one-way "looting"
are absurd. The assertion that commercial activity in eastern
Congo was illegal unless licenced and taxed by the DRC
Government is aYsosimply wrong. Areas of eastern Congo
were held by rebel groups which were the defacto governments
in those areas, as the July 1999 Lusaka Agreementrecognised.
Although much commercial activity was licenced by the
Government of the DRC (a fact the DRC conceals), requiring
such licensure wcluldhave resulted in poverty and starvation in
eastern Congo and would have been morally wrong. In fact,
when the curreni: DRC Government was, as the AFDL, in
control of territory prior to the overthrow of President Mobutu,
it asserted the authority to enter contracts with regard to the
exploitation of natural resources in the areas it controlled.
(Infra, paras. 430-55.)
329. The specific accusations made by the DRC on the basis
of innuendo and hearsay have been rebutted by sworntestimony
and documentaryevidence. Much of the documentaryevidence
was publicly availlable,but was either ignored or suppressedby
the UN Panels and by the DRC. Other allegations made by the
DRC blatantly rriisread the source documents on which the
DRC purports to rely, plucking one or two sentences out of
context or concocting allegations which are not made by the
source documents,. Al1of the DRC's accusationsare rebutted.
(See infra, paras;. 456-94.) In an effort to restore some
credibility to the UN Panel Reports, the DRC is ultimately
reduced to creating speculative excuses for the many errors
contained in that Report. (Seeinfra, paras. 504-09.)
330. Allegations that Uganda failed to act against illegal
activity are similarly without merit. In the first place, the DRC
has failed even now to demonstrate that any illegal activity
occurred, much less that such illegal activity was known to
Ugandan authorities in the past. The DRC's accusations also
rest on the mistaken assumption that Uganda should have
punished Congolesenationals in eastern Congo, despite the fact
that rebel groups, and not Uganda or the UPDF, had
administrativecontrol over that region. The DRC's allegations
are, in the end, unfounded slurs against Ugandan officials.
(Infra, paras.495-503.)331. Finally, the DRC fails to understand, or misstates, the
governing law. (See infra, paras5 10-22.)
A. The United NationsPanelReportsWere
DesignedTo ProvideA FoundationForA
PoliticalSolution.Not ToEstablish
Culpability
332. The DRC is seeking to use the UN Panel Reports out of
context. Even had the Panels adhered to al1 appropriate
methodological and evidentiary standards (which they did not,
as demonstrated below, infra, paras. 339-79), the UN Panel
Reports were not expected to assign responsibility or culpability
for any illegal activities in the DRC. Rather, the Security
Council, at whose behest the Panels were constituted,
understood that any report would not reach the very high
standards required to attribute responsibility to States, and
considered that, at best, the Reports would be the basis for
discussing a political solution to the conflict in the DRC. As
the Security Council itself noted, the UN Panels were not
judicial organs vested with the power or capability to collect
and evaluate evidence, form opinions, attribute responsibility,
and apportion blame. Rather, the Panels were essentially
political organs, vested only with responsibility to suggest
political solutions for the problems on the ground.
333. The President of the Security Council, commenting on
the work of the First Panel, accordingly stated that:
1 want to repeat something that other
speakers have noted, because it is essential
to Our discussion here today, and to the
follow-up. Our goal is not to punish or
apportion blame; Our goal, is and must
remain, the successful implementation of the
Lusaka Ceasefire Agreement and the
relevant Security Councilresoluti~ns.~~
79
The Permanent Representative of the United Kina similar vein,
observed that:(UR Annex 53 (AM Meeting), p. 10.)
334. The same points were reiterated during the Security
Council discussjon of the Third Panel Report. The
Representative of'the Russian Federation emphasised that the
purpose of the Panels was not to determine guilt for economic
crimes:
My delegation believes that combating
econornic crime falls, first and foremost,
within the purview of States, not the
Securi1:yCouncil. Moreover, only a court
can determine which individuals or
organizations are truly guilty of illegal
operations and shouldbe prosecuted.
(UR Annex 106 (AM Meeting), p. 28.)
335. The Representative of Singapore made the same point,
explicitly noting the failure of the Panels to meet appropriate
evidentiary standards:
However, the Security Council does not
have âny mechanism to assist it, so as to
ensure that the observance of due process
and tht:necessary highevidentiary standards
will be:the final arbiters before we make Our
decision on the Panel's recornrnendations.
We will take up this question againwhen the
Council meets next week in informa1
consultations to discuss the outcome of
today':; debate. Here, 1 would like to add
that we agree with the Representative of
France that Our purpose should not be to
We must engage with each other and try to achieve greater clarity,
but we also iieed to focus on the primary goal here, which is not to
punish or narrowly to assign blame, but tothe problem in the
interests of promoting the wider peace process and alleviating the
suffering of ,theCongolese people.
(UR Annex 53 (AM Meeting), 2..) point fingers at anyone but to stop the
plundering and to find a way for the
Democratic Republic of the Congo to move
forward.
(Ibid. (PM Resumption), p. 4.)
336. Nonvay, in a similar vein, recognised that the Panels
were useful in contributing to political solutions of problems in
the region:
We encourage the continuation of the use of
panels of experts to assist the Security
Council in its work. Asis highlighted by the
current discussion on the exploitation of
natural resources in the Democratic
Republic of the Congo, the Panel not only
presents its findings and recommendations,
but triggers useful discussions involvingl1
relevant actors. It is Ourbelief that this is a
contribution towards finding good and
sustainable solutions to the problems we are
facing in theegion.
(Ibid (AM Meeting), p. 26.)
337. The UN Panel Reports did not, however, meet the
standards required even for collective political action such as
trade embargoes against blameworthy countries. During the
Security Council deliberations on the Third Panel Report, the
Russian Federation made this point most emphatically:
Not al1 agree with the conclusions and
recommendations of the report, including
the Russian Federation. However, we must
acknowledge that the problem exists and we
must take adequate steps to resolve it. That
has been borne out by statements made by
the representatives of Uganda, South Africa,
Denmark, France, Norway and other
representatives. In that connection, we are
not inclined to consider the report as an excuse to precipitously adopt measures or
decisions, but rather to consider it as food
for thought that requires further study ....
The establishment of black lists by the
Council would not guarantee an end to the
illegal operations involving Congolese
resources.
(Ibid., p. 27.)
338. If the UN:PanelReportscannot justify political action,a
fortiori they cannot meet the higher standards for evidence
which could sustainjuridical actionagainst a State.
B. The United NationsPanelReports,And
ParticularlvTheFirst ReportOn WhichThe
DRC'sCase Rests, HaveBeen Universallv
Discredited
339. The DRC neglects to point out that the First UN Panel
Report on which :sheso heavily relies was broadly criticised as
biased and lacking in credibility, so much so that the failures of
the first UN Panel required the appointment of a second Panel.
In fact, the First UN Panel Report was explicitly criticised by
the DRC, an effective admissionof the flaws of that Report. On
the few occasions;where the DRC does cite the Second Panel
Report, which points far less to Uganda than does the First
Report, the DRC ignores the fact that the Second Report, like
the First, presented conclusions which were not supported by
relevant evidence. This failure led to a Third UN Panel Report,
which suffers from the same flaws as the firsttwo Reports.
(1) The DRC herselfadmits that the UN
Panel Reports are not credible
340. The DRC has herself admitted that the UN Panel
Reports are not credible. Attacking portions of those Reports
which accuse the DRC Government of corruption and serious
maladministration (see DRCR Annex 69, paras. 148- 172;
DRCR Annex 701,paras. 61-90), the DRC has emphasised at
least three major flaws in the UN Panel Reports: first, the
Reports make accusations without bothering to understand thefactual context of events; second, the Reports make accusations
which are not based on evidence; and third, the Reports do not
comprehend what is legal and what is illegal.
341. Attempting to explain away the serious allegations
against the DRC Government and its allies, the DRC points out
that the UN Panels make allegations without bothering to
understand the factual context in which events occurred. The
DRC, for example, asserts that conditions on the ground could
justify agreements which would otherwise be deemed
"controversial" or "insufficiently explicit":
10. Le Rapport du Panelfait mention de la
responsabilité du Gouvernement de la
République Démocratique du Congo
essentiellement au sujet des contrats signés
dans le cadre de l'exploitation du diamant
du Kasai;du cuivre et du cobalt au Katanga
avec les opérateurs économiquesoriginaires
despays alliés.
11. A ce sujet le Panel des Experts des
Nations Unies a cibléles sociétés suivantes:
COMIEZ, COSLEG, BCD, SENGAMINES,
SONANGOL, SOCEBO,et dlfSérentes autres
conventions de partenariat entre la RDC et
ses alliés,structures qualifiéesde supports
depillage.
20. Quecertailzsdes contratsdepartenariat
entre la RDC et ses alliés comportentdes
clauses controversées mais imputables au
contexte de guerreoù sont intervenues leurs
signatures, le Gouvernement en est
conscient. En effet, il n'a pas d'ailleurs
attendu la visite du Panel de l'ONU pour
amorcer une action d'évacuation des
dispositions contractuelles au demeurant
non conformes aux lois régissantles sociétés commerciales et à l'équitéinhérente aux
joints-ventures, parce que pas assez
explicites.80
(UR Annex 71,paras. 10-11,20.)
342. The DRC has also criticised the UN Panels for failing to
gather the relevaritfacts and for misunderstandingthe concept
of illegalexploitation. Thus, during the SecurityCouncil debate
on the Second UN Panel Report, Hon. She Okitundu, Minister
for Foreign Affairs and International Cooperation of the DRC,
stated:
In calling into question the countries
members of the Southern African
Development Cornrnunity (SADC) that
came ito help one of their own cope with
Annex to Letter dated 5 December 2001 from the Permanent
Representative of the Democratic Republic of the Congo to the United
Nations addressed to the President of the SecurityCouncil01/1156):
10. The Panel's report mentions the responsibility of
the Government of the Democratic Republic of the
Congo essentially in relation to contracts signed in
the context of the exploitation of Kasai diamonds, of
Katanga.'~cobalt and copper, with the economic
operators fromallied countries.
11. In this regard, the United Nations' Panel of
Experts aimed at the following companies: COMIEX,
COSLEG, BCD, SENGAMINES, SONANGOL,
SOCEBO, and other different partnership
conventions between the DRC and its allies,
structures qualified as supportingthe looting.
20. The Government is aware of some partnership agreements
between the DRC and its allies thattain controversial
clauses but imputable to the context of war in which their
signatures intervened.Indeed, it did not either wait for the
Panel'svisit to launch an evacuation action of the contractual
dispositiions,which, by the way, did not comply with the laws
managirig commercial companies and to the equity inherent to
theinsuFficientlyexplicitjoint ventures.
(UR Annex 71,paras.. 111,20.) armed aggression, it seems to me that the
addendum [Second Report] inaccurately
rejlects the relevantfacts and also seems to
depart from the definition of illegal
exploitation as set forth in paragraph 15 [of
SecondPanel Report.]
(UR Annex73, p. 7; emphasis added.)
343. Most recently, representatives of Government of the
DRC made clear that the Third UN Panel Report could not be
accepted withoutverificationand without givingthose who had
been accused an opportunityto defendthemselves:
Luhonge Kibinda Ngoyi, the DRC public
prosecutor, told IRIN.. .that he would not
automatically accept the UN report as
correct, and want to make hisown inquiries
to ensure that justice was served. "This
inquiry is aimed at enabling us to verify if
what the reportsaid is true," he added.
The DRC Government spokesman, Kikaya
Bin Karubi, said it was necessary to give
people cited in the report the opportunity to
defend themselves.
(UR Annex94;emphasis added.)
344. The DRC cannot pick and choose: she cannotrely on
those parts of the UN Panel Reports that favor her while
discrediting the otherparts. The same careless methodology --
which the DRC emphasises in her criticisms -- is used
throughout the various Reports. The whole of the DRC's case
in Chapter IV effectively hinges on the First UN Panel Report.
Given the official statements by the DRC that the Report is in
fact not credible, theDRC'sentire case crumb~es.~'
81See thNicaragua case(I.C.JReports1984,p.4 1,para64) ("statements
of this kind, emanating from high-ranking official political figures...are of
particular probative value when theyacknowledge facts.. .unfavourable to (2) The inadequacy of the First UNPanel
Report wasadmitted in a subsequent UN
Panel Report
345. The DRC was not the only entity that acknowledged the
inadequacy of the First UN Panel Report. The second UN
Panel, which was charged with the responsibilityof attempting
to address some of the flaws of the First UN Panel Report,
admittedthat the 1;irstReport was defective.
346. Thus, the Second UN Panel Report recognised the
inadequacies of the First Report. Moreover, it acknowledged
that it had not corrected the inadequacies which negated the
usefulness ofthe 17irstReport:
The [second] Panel tried its best to address
the cornplaints and reactions as a
consequence of the [first] report and
succeeding in meeting most of the parties.
However, owing to severe time constraints,
it was ,flotpossible to addressthis issue in its
totaliiy.
(DRCR Annex70,para. 9; emphasis added.)
347. Thus both the DRC and the secondUN Panel of Experts
have admitted that the First UN Panel Report -- the foundation
of the DRC's case against Uganda -- cannot be relied upon.
Those admissions alone are fatal to the DRC's case, but it is
appropriate to po'intout that the DRC and the UN Panel of
Experts are not alone in their criticisms of the various UN Panel
Reports. As Uga.ndademonstrates below, many other nations
have similarlycriticised the UN Panel Reports.
the State represendy thepersonwhomadethem. Theymaythenbe
construedas aormof admission."). (3) A host of nations have criticised theUN
Panel Reports
348. In addition to the DRC, a host of other nations have
criticised thearious UN Panel Reports, pointing out the failure
of the Panels to distinguish between fact and hearsay, to support
allegations with evidence, to seek corroborative evidence, to
interview relevant witnesses, to inspect relevant documents, to
identify sources, to understand the context of events, to
distinguish between legal and illegal activity, to provide an
opportunity to those accused to explain or otherwise respond to
allegations, and, in general, to satisfy basic standards of
impartiality and evidentiary sufficiency.Such criticisms have
come from a broad spectrum of nations.
(a) The First UN Panel Report
349. The Permanent Representative of China to the United
Nations, for example, complained that the First UN Panel
Report made it impossible to distinguish between reliable
evidence and hearsay:
In some of the information provided in the
Report, there is no clear distinction between
cases with conclusive evidence and those
with evidence that is either inadequate or
merely hearsay. We hope that, in the next
phase of its work, the Panel of Experts will
apply stricter standards. It should, in
particular, focus its work on the looting and
illegal exploitation of the resources of the
DRC, address the principal questions of
significance and base its conclusion on hard
evidence.
(UR Annex 53 (PM Resumption), p. 2.)
350. Similarly, the Permanent Representative of Norway
pointed out the failure of the First UN Panel Report to
distinguish between hard evidence and mere allegations, and the
failure to provide any corroborative evidence: Several members of the Security Council
have asked the Chairperson of the Panel of
Experts to provide the Council with a more
assertive presentation of the findings,
separahg hard facts from more loosely
based information. It is very difficult for the
members of the Council to distinguish
betwee:n information and accusations that
are based on primary data that can link the
accused parties to illegal exploitation with
some certainty, and parts of the report that
are based on information obtained in
interviews. If possible, the next presentation
should contain corroborative evidence
against:those involved.
(Ibid., p..)
351. The Permanent Representative of Bangladesh also made
clear that the First UN Panel Report did not meet minimum
evidentiary standards, and added that the Panel itself failed to
satisfyrequisite standardsof impartiality:
There are questions about the methodology
used, about the quality of the evidence and
about the nature of the conclusions.. ..The
Panel ,willdo well if it can substantiate its
conclusions against disclaimers offered.
The firidingsand conclusions of such expert
panels have serious implications for the
objectives pursued by the Security Council.
We stress that reports of panels of experts
issued in the name of the United Nations
should meet evidentiary standards and other
relevant norms. A Panel should, at the same
time, be able to investigate and to submit its
findings with absolute independence and
objectivity.
(Ibid., p.6.)352. The Permanent Representative of Tanzania also
complained about the undisclosed third-party "sources" on
which the First UN Panel Report was fabricated, and noted that
most of the allegations were made without supporting evidence
or even a minimally satisfactory investigation of allegations:
My Government would like to have details
so that it can investigate them.
My Government is willing and ready to play
a very constructive role in our efforts to end
the war in the Congo. But we can do so
only in the context of irrefutable facts or a
transparent process. We are too conscious
that this has not been an easy task for the
Panel of Experts. However, under the
prevailing circumstances, itis difficult for us
to respond in a constructive and meaningful
way to the allegations...
For my Government, the door for dialogue
with the Panel and this Council remains
open. Regrettably, notwithstanding the
findings [of the Panel], apparently obtained
through third-party sources,
'overwhelmingly' suggesting the use of
entities in Tanzania as a transit point for the
inappropriate marketing of the natural
resources of the DRC, the Panel chose not to
visit Dar es Salaam, as evidenced in annexII
of the report. Consequently, no Government
official, nor any known Tanzanian, was
interviewed. This neglect may have
unwittingly undermined the relevance of
those parts of the report to which we are
addressing ourselves. This significant flaw
requires a remedy.
(Ibid., p. 19.)353. Rwanda also complained about the failure of the UN
Panel to conduct a fair investigation of allegations, including
specifically the failure to provide an opportunity for those
accused to respond to allegationsmade against them:
[Tlhe private sector, which was
characterized as pivota1 in the illegal
exploitation, was never contacted to clarify
their business practices or credentials to the
Panel. That is against the norms of natural
justice.
(Ibid p..,1.)
354. Finally, in its officia1Response to the First UN Panel
Report, the Govei-nmentof Rwanda also noted that the Report
began with pre-ordainedconclusions which the Panel seemingly
set out to support:
This is the type of report the reader should
read backwards. One should start with the
wild recommendationsin order to follow the
absurdity of the report's contents. It is quite
clear that the recommendations of the
"experts" were pre-set wishes on which they
based t.heirmethodological framework.
Itis indeed not surprising that their first
[interirn] attempt at producing a report was
found iinadequatethat they had to be made to
review it. Unfortunately, the second attempt
[the First Report]is still very unprofessional
and full of hearsay and innuendos.
(UR Annex 52, p. 1.)
(b) The SecondUN Panel Report
355. The fundamental deficiencies of the First UN Panel
Report were not corrected in the later Reports, as a variety of
nations have continuedto recognise.356. For example, Tanzania's requests for supporting
evidence and for a thorough investigation by the UN Panel
were, unfortunately, not honoured. The Second UN Panel
Report simply ignored Tanzania's criticisms, andrepeated as if
by rote the allegations contained in the First Report. This
prompted Tanzaniato reiterate the failure of both UN Panels to
provide supportfor theiraccusations:
We are therefore dismayedthat the Panel is
repeating the same accusation contained in
the report in document SI20011357of 12
April 2001 [the First Report] to the Council
without making available any evidence
which would have helped the Government
of the United Republic of Tanzania to
conduct further investigations....
As regards timber exports, available records
show that the Tanzanian Harbour Authority
did not handle timber for export during the
period under review.. .. The Panel claims
that it has obtained documents indicating
that at least two shipments of timber
originating in the DRC were transported
through the United Republic of Tanzania.
We are surprised, however, that the Panel
did not share this so-called evidence with
the Government of the United Republic of
Tanzania....
It is also Our expectation and Our sincere
hope that the Panel will makeavailable to
my Government the so-called credible
evidence it claims to have obtained on the
mattersraised in the report. The cooperation
of the Panel in that regard would be in the
interest of furthering the peace process in
the DRC in particular andof ensuring peace
and stability in the Great Lakes Region as a
whole.(UR Annex 73 (AM Meeting), pp. 15-16.)
357. The Government of South Africa made clear that the
Second UN Panell,despite repeated requests, failed to provide
supportingevidence (if any existed in the first place):
To further its own investigation, South
Africa also requested additional information
from the Panelin October 2001.
It is for this reason that my delegation is
surprised at the claims by the Panel that
there is 'credible' information implicating
individuals or entities of using South
African territory and facilities to conduct
illicit commercial activities involving the
Congo's natural resources. This information
was not mentioned, nor did the Panel offer
to share this evidence, during its meetings
with th.eSouth African authorities.. In this
regard, we would appreciate receiving from
the Panel of Experts the names of
individuals andlor businesses, as well as
supporting evidence of their alleged
activitie- dates, places, routes, time frames
and associates in South Africa and the DRC.
My delegation would therefore humbly
advise the Panel to be more willing to
exchanigedetailed information with Member
States. Any perceived unwillingness by the
Panel of Experts in this regard constitutes a
serious,impediment to its own mandate....
(Ibid.(PM Resumption),p. 2.)
358. The Government of Zambia similarly emphasised that it
had not been provided any evidence supporting the allegations
made againstit in the First and SecondUN Panel Reports:
We are therefore disturbed by these
unjustifiable accusations. If the Panel, as claimed in paragraph 11 1 [of the Second
Report], has information that various
Congolese resources transit through Zambia
illegally, the noble anddecent thing to do
would be to inform my Government so that
the necessary control measures can be
effected.
My country therefore challenges the Panel to
substantiate these allegations as they appear
in the report. If it should fail to do so, we
would demand a retraction and an apology.
(Ibid., pp. 11-12.)
359. Rwanda also stated that the Second UN Panel Report,
like the First, failed to support its broad allegations with
substantive evidence:
On the allegations concerning the
exploitation of the wealth of the DRC, the
Government of Rwanda has noted that, in
the present addendum (S/2001/1072) to its
report [Second UN Panel Report], as before,
the Panel, in the case of Rwanda and its
Government, did not indicate the names of
organizations involved in the exploitation of
resources. But we do not have al1the details
of its investigations..
Secondly, the Panel did not fully establish
links between the exploitation of resources
and the operations of the Rwandan Patriotic
Army. Once again, if there is evidence, we
did not see it in the report of the Pan.l..
(Ibid. (AM Meeting), p. 17.) (c) The Third UN Panel Report
360. During the Security Council's open debate on the Third
(and supposedly Final) UN Panel Report, members of the
Council made c1e:arthat they did not consider the allegations
contained in any lofthe three Reports to have been sufficiently
proven to warrant any action by the Security Council. Many
Council members also expressed the view that the countries,
companies and inidividualsnamed in the Reports should have
been afforded the opportunity to respond to the accusations
made against theni.
361. Mauritius, for example, criticised the failure of the Panel
to verify its allegations and to interview al1 relevant parties
before making accusations:
It is irnportant thatl1information be fully
verifie~dand that countries named in the
reports have the opportunity to provide
explanations. We note, for example, that
paragraph 18 of the [Third UN] report
makes reference to a joint Zimbabwe-
Democratic Republic of the Congo Company
to be set up in Mauritius to disguise the
continuing economic interests of the
Zimbabwe Defence Forces in the
Democratic Republic of the Congo.
Unfortunately, no counter-checking or
verification of that information was ever
requested from Mauritius. Such
shortcomings lead to the undesired
conclusion that the report aims at
sensationalism.
(UR Annex 106(PM Resumption),p. 2.)
362. The Govexnment of Singapore similarly criticised the
failure of the UN Panel to afford due process by providing the
governments, individuals and companies accused in the Third
Report with an opportunityto respond to those accusations: However, as the Security Council
deliberates on this substantial report, weill
also need to take into account the responses
of the Governments, individuals and
companies implicated in the report. It is no
understatement to Say that the report has
stirred up a hornet's nest. As we have heard
today, many of the parties implicated in the
report have accused the Panel of failing to
observedue process and of relying on flimsy
evidence in arriving at its findings. The
chairman of one such company, Oryx
Natural Resources, visited Security Council
members in New York last week, including
our delegation, to make the case that his
company was innocent. He also told us that
the Panel made no attempt to contact him or
his company to check its facts prior to
implicating his company in the report.
In Our view, such responses to the report
must be fully addressed so that no innocent
party is inadvertently included among the
guilty but the guilty parties are conclusively
shown to be what they are. To achieve this,
we must ensure that due process is observed.
(Ibid., p4.)
363. The Government of the Syrian Arab Republic rejected
the Third Report as inaccurate, emphasising that the UN Panel,
rather than securing documentary and other evidence, had relied
on informers (who may well have been cornpetitors of those
accused) and had provided no opportunity for those accused to
refute the allegations made against them:
Having considered the report of the Panel of
Experts, we are a bit surprised by some of its
contents and by its failure to secure
irrefutable evidence before leveling blame
and accusations against individuals andcompanies; indeed, this has been done even
without prior contact with those individuals
or with representatives of those companies.
In addition, we reject conclusions
vo1untt:eredby members ofthe Panel when
such conclusions were not required or when
they wcerebased onreasoning that isdifficult
to understand. Here, we would like to note
the report's political reference toa number
of cornpanies in Africa and in the Arab
region. As far as we know, the report was
not supposed to deal with theinterna1affairs
of other African countries or with political
aspectsrelated to Arab countries. Therefore,
we would like to express Ourdissatisfaction
at the levelingof accusations and description
of sonne business people as members of
international criminal organizations.1s that
not sornewhatexaggerated?
We also note that the report was based on
information providedby informers, be they
companies or competing traders. That
affects the accuracy of the report and the
credibility of the Panel of Experts.... We
understand the importance of the Panel's
work ;and the importance of providing it
with al1 the assistance it needs to collect
documents that would support its
concluisions.
We have also endorsed the idea that the
Panel should meet with those mentioned in
the report. But we feel that the Panel failed
to make suchcontacts or ask questions about
the contents of a number of paragraphs
relating to some major countries in the
region.... Leveling accusations against
Arab cities and countries such as Dubai and
the lJnited Arab Emirates in some
paragraphs of the report was out of place and unacceptable.. . Our delegation
believes that every accusation against Arab
individuals named in the report can be
answered and refuted.. .. We confirm that
these individuals and Company
representatives possess the documents
needed to refute al1the accusations leveled
against them....
We believe that there is an urgent need to re-
evaluate the entire contents of the report.
(Ibid, pp. 5-6.)
364. The Government of the United Kingdom, in like
manner, emphasised that the Panel's failure to share information
made it impossible for governments who were accused of
wrongdoing to investigate and address the allegations:
My Government hopes that the Panel's
Chair will nominate a spokesperson to
respond to questions from organizations and
individuals named in the report and its
annexes. We would encourage the Panel to
share information with Governments and
companies named, to the extent possible
without compromising source protection, so
as to allow them to carry out full
investigations and take necessary action.
(Ibid., p. 1.)
365.
The President of the Security Council, speaking as the
representative of China, summarised the Council's
dissatisfaction with the Third UN Panel Report and, in
particular, criticised the Panel's persistent inability or
unwillingness to distinguish between illegal exploitation and
legitimate trade:
As demonstrated in the statements made
today, there are divergent views over the
contents of the report, including the recomnendations contained therein. 1wish
to take this opportunity to point out that the
report alleges that there are Chinese
companies engaged in the illegal
exploitation. We have carried out careful
investigations but found nothing that would
justify such allegations. We believe that, in
discussing such questions, the Security
Counciil should distinguish between illegal
exploitation and day-to-day economic and
trade exchanges, so as to avoid negative
impact on the economic development of the
Democratic Republic of the Congo and the
livelihood of its people. Also, the views of
that country and others concerned should be
carefully listenedto.
(Ibid.,p. 19.)
366. Other members of the United Nations attended the
Security Council deliberations at the invitation of the Council
and, like members of the Council, came to the conclusion that
the Third Report had failed to substantiate its accusations with
anythingapproaching the requisitedegree of proof.
367. The Government of Zimbabwe, a primary ally of the
DRC, emphasised that the Third Report often repeated
unfounded allegations contained in the earlier Reports without
the appropriateeffort at verification:
The firialreport repeats allegations that have
been challenged and discounted in the past
without offering any new evidence.. ..
Either the Panel mistakenly believes that
repeating these falsehoods will somehow
transform them into accepted truths or it is
pursuitig a certain agenda whose realization
demands that the falsehoods shouldcontinue
to be peddled in the publicdomain.
(Ibid. (AMMeeting), p. 20.)368. Zimbabwe had in fact raised the alarm about the
credibility of the ThirdN Panel Report even before the Report
was officially released. In a letter dated 17 October 2002,
Zimbabwe complained about the reliance of the UN Panel on
unsupported allegations:
In the meantime, it has come to the attention
of the Government of Zimbabwe that the
international conspiracy and alignment of
forces against Zimbabwe continues
unabated, as exemplified by the grotesque
fabrication of false evidence being presented
to the Panel by Our detractors through the
Western media.
Mr. President, the grotesque and malicious
interference by enemies of my country in
what should be a professional investigation
by the Panel continues to this date..
(UR Annex 92, pp. 1-2.)
369. During the Security Council debate on the Third Report,
South Africa likewise reiterated the failure of that Report to
substantiate its allegations, and the failure of the Panel to
provide an opportunity for parties to respond to the allegations
against them:
However, we would like to inform the
Security Council that South Africa is
disappointed with the content of the final
report presented to the Council by
Ambassador Mahmoud Kassem. We are
disappointed in the methodology the Panel
used in gathering its information and in the
conclusions and recommendations the Panel
sets out in its report. South Africa would
urge that the Security Council require the
Panel to further investigate and substantiate
the allegations and recommendations made in the report. We believe that the Panel's
report contradictsthe aims and the intentions
of the SecurityCouncil.
It is therefore not acceptable that an expert
panel, given the opportunity to meet with
Government authorities, withholds
informationon matters that are of concern to
the Governments involved. Yet
Goverriments are supposed to further
investigate allegations of interest to panels
without being given basicinformation.
(UR Annex 106(AM Meeting), p. 9.)
370. South Africa also put her criticisms in writing. In a
letter to the President of the Security Council, South Africa
noted the failures of those preparing the Third UN Panel Report
objectively to evaluate information and to cooperate with the
investigations being conducted by relevant governmental
authorities:
South Africa is disappointed with the
content of the final [Third] report[,] the
methodology the Panel used in gathering its
information and the conclusions and
recomrnendations the Panel makes in its
report.... The Panel's report contradicts the
aims and intentionsof the SecurityCouncil.
We are:particularly disappointed because the
South African Government welcomed the
Panel when it visited Our country and
arranged for the Panel to meet with various
senior officials from departments and
agencies that were ready to assist the Panel
in its work. The Council will notice that the
examples cited later in my letter are contrary
to the Panel's claim of having "made every
effort itofairly and objectively evaluate the information it has gathered". A difficulty
that we experienced was the quality and
extent of the information that the Panel
made available to the South African
authorities. The information upon which
South African authorities were expected to
conduct the necessary follow-up
investigations was either incomplete or
never given.
(UR Annex 96, p. 1.)
371. After discussing specific instances where allegations in
the Third UN Panel Report were not supported by evidence,
South Africa commented on the fundamental defects of the
Report: the absence of hard evidence, the failure properly to
distinguish between legal and illegal activities, and the failure
of the Panel to share information with South Africa:
The report's statements about South Africa,
South African companies and South African
individuals consequently do not appear to be
substantiated by hard evidence or
information. Nor does the Panel draw any
distinction between legal and illegal
activities of companies in its report. In their
interaction with the Panel, the South African
authorities underlined the difficulties that
are experienced when dealing with the
vagueness of certain queries received. It
was pointed out that the provision of more
detailed and accurate information would
assist the South African authorities to
address the issues raised.
The Council will understand that South
Africa regards this in a serious light, not
only because of its imputations, but also
because of the role that South Africa continues to play, both in its national
capacity and as the Chair of the African
Union, in achieving lasting peace, security,
stability and prosperity for the Democratic
Repub.licof the Congo and its people.
(Ibid., p. 4.)
372. During the Security Council debate, the Government of
Oman emphasised the damage done by the unverified and
unfounded accusationscontained in the Third UN Panel:
As 1 turn to the report of the Panel,1 will
restrict: my comments to those paragraphs
pertaining to one Companyand its chairman.
1canncntbut express my delegation's strong
concerns at the wrongful allegations,factual
errors, hearsay and uncorroborated
information propagated against Oryx
Natura.1Resources, the most negative of
which is that it is a front for the Zimbabwe
DefenceForces.
My delegation wishesto make the following
observations. First, having studied the
report of the Panel of Experts and its related
documents, we could not find any proof to
substxntiate the allegations made against
Oryx Natural Resources (ONR) and its
chairrrian. Secondly, ONR, funded by
private Gulf investors, and in joint venture
with the Government of the Republic of the
Congol, aims at contributing towards the
econoinic and social development of that
country.
..[W]e fail to find any credible reason why
this matter is before the Council in the first place. My delegation callson the Councilto
protect and uphold the reputations of the
companies and individuals mentioned in
Annexes 1 and II of the report and to close
forthwith this file so as not to undermine the
legitimate achievements throughthese false
accusations. It is my delegation'shope that
the council will seriously take into
consideration the grave concerns expressed
by delegations that have spoken before me
and that the Council will take appropriate
action to rectify the damaging andincorrect
information containedin the report.
(UR Annex 106(AM Meeting),pp. 18-19.)
373. Rwanda also noted that the Third Report simply
repeated earlier unsupported accusations:
The final report adds almost nothing newto
earlier reports; it merely repeats
unsubstantiated allegations that we refuted
on 3 May 2001, after the first report was
issued. The report is politically motivated.
(Ibid.,p. 17; see also UR Annex 93, describing the Third
Report as "poorly researched"and "grossly unprofessional.")
374. The Deputy Foreign Minister of Belgium, recently
commenting on the Third Report, noted that many companies
were listed as "non-ethical" without any explanationin the text
of the report. Echoing the comments of many other States
about the UN Panel Reports,the DeputyForeign Minister noted
that the Third Report "failed to propose ways of distinguishing
the legal from the illegal." (UR Annex 100.)
375. In fact, theDRC7sMinister of National Security, Hon.
Mwenze Kongolo, recently wrote to the Secretary-General to
criticise the fact that the Panel had neither spokenwith him nor
provided him with copies of documents prior to making
accusations linking him to illegal activity. (UR Annex 105,p.2.) Hon. Kong010 noted that the practice of making
unsubstantiated allegationshad a devastating effect:
1 reserve the right to use al1 means made
available under the law so that my dignity,
reputation and my honour, which have been
severely tarnishedby this report, be restored.
(Ibid.)
(4) The UNPanel Reports do not meet the
UN'Sownstandards
376. Each of the UN Panel Reports at issue in this case failed
to meet the standards which other UN panels have adopted in
considering similarly serious allegations against States. For
example, in Report of the Panel of Experts on Violations of
Security Council Sanctions Against UNITA (S/2000/203) 10
March 2000 ("UNITA Report"), the UN panel with
responsibility for that investigation emphasised that it had
conducted a broad range of interviews and specifically
identified its most important sources:
In all, Panel members visited nearly 30
countries, meeting with Government
officia1s, members of the diplomatic
commiinity, non-governmental
organizations, police and intelligence
source!;, industry associations and
commercial companies, journalists and
others.... [Vlideotaped interviews were
conducted with a number of key recent
defectors €rom UNITA, including General
Jacintol Bandual, Col. Alcides Lucas
Kangu:nga (known as "Kallias"), Lt. Col.
Jose Antonio Gil, Col. Aristides Kangunga
(brothe:r to Kallias"), and Mr. Araujo
Sakaita.The team also had anopportunity to
travel to Andulo, where they examined
stocks of equipment captured during and
after the battle forAndulo, and spoke with a number of soldiers who had defected from
UNITA following the battle.
(UNITAReport, para. 8.)
377. The UNITA panel, moreover, secured documentary
evidence and required corroboration of al1allegations. In fact,
where political leaders were mentioned, the panel required both
directevidence and two forms of corroboration:
11. Evidentiary standards. The team that
visited Luanda in January received a large
amount of detailed and valuable
information, including documents. With the
details provided by defectors and others, the
Panel was able to confirm and corroborate
information that Panel members had
independently uncovered or received from
other sources. In al1 of its work, the Panel
has been especially careful to use only
information that has been confirmed or
corroborated by more than one source in
which the Panel has confidence. This
standard has been applied ta al1information
collected by the Panel, including
information gathered from UNITA
defectors.
12. ...In the case of those political leaders
that are mentioned, the Panel has required
direct evidence, that is confirmed and
corroborated by ut least two other sources
deemed by the Panel to be credible. In view
of the implications of the report, the Panel
feels that any lesser standard would not be
appropriate. For other non-UNITA persons
mentioned in the report, the Panel has
required a comparable level of proof for
their involvement, and tried to focus
primarily on the main actors in each
category....(Ibid., paras. -112;emphasisadded.)
378. Likewise, in Report of the Panel of Experts Appoirzted
Pursuant to Security Council Resolution 1306 (2000),
Paragraph 19, in Relation to Sierra Leone (S/2000/1195) 12
December 2000 ("Sierra Leone Report"), the panel met not only
with informants but also with governmental authorities and
private sector firrns, and thereafter listed sources on which it
relied:
In each country Panel members met with
Goveniment authorities, and where relevant,
with ~diplomatic missions, civil society
organizations, aid agencies, private sector
firms and journalists. The Panel had access
to a wide range of public and confidential
information provided by officia1 sources,
including law enforcement and intelligence
agencies.The Panel alsocontacted a number
of key individuals and informants whose
names have been a subject of interest and
controversy in recent months in connection
with the Sierra Leone crisis. A full list of
those contacted is contained in annex 2.
(Sierra Leone Report, para.6 1.)
379. The Sierra'Leone panel, like the UNITA panel, required
corroboration of allegations (in the case of Sierra Leone, by two
independent sourc:es). The Sierra Leone panel also verified
allegations by examining documentary evidence and by
contacting established law-enforcement agencies. Last but not
least, the panel provided an opportunityfor those against whom
allegations were niadeto respond before the reportwas issued:
The Panel agreed at the outset of its work to
use high evidentiary standards in its
investigations. This required at least two
credibl'e and independent sources of
inf~rm~ation to substantiate a finding.
Wherever possible, the Panel also agreed to put allegations to those concerned in order
to allow them the right of reply .... The
Panel examined ...flight records.... It saw
photographs of the aircraft being loaded.. ..
It examined flight plans. It spoke to
eyewitnesses of aircraft movement ..and it
spoke to individuals who were on board the
aircraft in question. In addition to its own
detailed verification, the Panel received
corroborating information from international
intelligence agencies and police sources
operating at international as well as national
levels. The assistance of Interpol specialists
was also taken as and when required.. .. Al1
issues have been judged and reported using
the same standard.
(Ibid.,para. 63; emphasis added.)
C. The InherentDefectsOfThe United Nations
Panel Reports UndermineThe Allegations
Against Uganda
(1) The allegationsagainst Ugandaare not
supportedby credible evidence
380. As so many other States have noted, the First UN Panel
Report amounts to nothing more than a litany of allegations,
rather than being a careful compendium of substantiated and
corroborated evidence. The Second and the Third UN Panel
Reports continue to rely heavily on the discredited First Report.
Al1 three Reports are riddled with accusations based only on
"information" that is not specified and "sources" that are not
named. Al1three Reports, moreover, fail to disclose how any
sources or information were tested for veracity and credibility,
if at all; how any Panel established that the sources or
information were reliable; and how that reliability was tested.
There is no suggestion that allegations in any Report were
corroborated by independent information, and al1three Reports
are woefully lacking in specifics capable of verification. For
example, the Third UN Panel Report theorises about "elitenetworks" of exploitation at a very general level but does not
demonstrateany credibleevidentiary support or indicateexactly
how those purported "networks" wouldimplicate Uganda as a
State, and persistently fails to sift out falsehoods and war
propaganda or to corroborate allegations with substantiated
evidence. (UR Arinex 103,paras. 10-12.)
381. Although the overriding objective for extending the
mandate of the Panel afterissuance of the first two Reports was
to formulate "a response, based as far as possible on
corroborated evidence, to the comments and reactions of the
States and actors cited in the report to the Panel" (UR Annex
54), the Third Report, like the earlier Reports, continued the
woeful practice of repeating unsubstantiated allegations. In
response to the 'i'hirdReport, Uganda supplied evidence of
specific factual errors and, like so many other States, noted that
"the United Nations Panel continues to rely on
hearsay/uncorroborated information. Indeed, the final report of
the Panel contains a number of serious factual errors." (UR
Annex 95, para. 2(c).)
382. As this Court observed in the Corf'u Channel case
(Merits),and reaffïrmed in the Nicaragua case,
The statements attributed by the witness ...
to third parties, of which the Court has
received no personal and direct
confirmation, can be regarded only as
allegatiions falling short of conclusive
evidencre.
(I.C.J. Reports, 1949, pp. 16-17; I.C.J. Reports, 1984, p. 42,
para. 68.)
383. In the Coi-fuChannel case, there was at least a witness,
although that witness was recounting hearsay. In this case, the
Reply and its sources (including, most notably, the First UN
Panel Report) do not even purport to provide statements by
witnesses, resting instead only on unnamed "sources" and
"information." (2) The UNPanels have refused toprovide
supporting evidence to Uganda
384. Like others accusedby the UN Panels,the Government
of Uganda has been denied the information on which the
accusations againstit were supposedly based,frustratingefforts
to investigate, verify and punish wrongdoing, if any, which
mightexist:
The Addendum to the report [Le., the
Second Report] accuses senior military
officers of continuing to have commercial
networks inthe DRC.. ..
...It would, therefore,be very helpful for the
Panel to provide evidence to Uganda's
Porter Commissionof Inquiry so that it can
finalize investigations involving senior
UPDF officers. The Uganda Governmentis
committed to the implementation of the
recommendations of the Porter Commission
of Inquiry.
(UR Annex70, p. 3.)
385. Deterrnined to establish the tmth regarding allegations
made in the UN Panel Reports, on 23 May 2001, the
Government of Uganda appointed the Porter Commission, an
independent judicial commissionof inquiry whose task was to
hear, collect, and verify evidence. The Porter Commission
consists of Hon. Justice David Porteras the Chairman and two
other members. It has the judicial powers of the High Court
(the highest court of original jurisdiction inUganda) including
the powers to summon witnesses and to compel the production
of documents through theissuance of s~b~oenas.~~ (UR Annex
96, para. 2 (c)(iii).) As Uganda will demonstrate below, sworn
and documentary evidence was produced before the Porter
82The legal instrument establishing the Porter Commission was circulated to
the Security Council via a Letter dated 25 May2001 fromthe Chargé
d'affairesi. of the Permanent Mission of Uganda to the United Nations
addressed to the President of the Security Council (S/2001/522).Commission whic:hcontracted most of the allegations made in
the UN Panel Reports. In addition, the UN Panels declined to
provide the requisite information on which they relied for
verification of the allegationsin the PanelReports.
386. The UN Panels failed to provide information on which
they based their claims to the Porter Commission. That failure
led Mr. Justice Porter to express his frustration regarding the
Panel's repeated reliance on so-called "reliable" and "very
reliable" sources which remained unidentified:
[Olne 'ofthe problems this Commission has
is that:; in the panel report,there were al1
sorts of sources, reliable sources and very
reliable sources that were meant to settle
these things, but we have actually no idea
who th.esesources are and whether they are
able to talk to us and whether we have any
chance to cal1 them before us. This is
extremely difficult and 1just wanted to put
that on record because it is very hard for us
to be able to say that with the exception of
one or two names that specific people were
supposed to have done specific things at
specificrtimes, it is very difficult. And as
you know a Commission like this can only
rely onisworn evidence. It may hear of al1
sorts of things. But unless somebody is
prepared tocome here and give evidence we
in Ourreport cannot 1 think take any notice
of that...
(UR Annex 64, Part C, p. 3.)
(3) TheUNPanelsfailed to interview key
witnesses andto review critical
documents
387. As the criticisms of a multitude of States demonstrate
(supra, para. 335)-79), Uganda was hardly alone in raising
concerns about th.emethodology of the UN Panels, especiallyregarding the qualityof evidence collected andused in reaching
conclusions. The first UN Panel, for example, failed to
interview key Ugandan officiaisdespite their willingness to
meet, such as Hon. Amama Mbabazi, Uganda's Minister for
Foreign Affairsduring the period under investigationas well as
the Co-Chair of the Joint Ministerial Political Committeeunder
the Lusaka Agreement, Gen. Kazini, who headed UPDF
operations in eastern Congountil 2000, and Maj. Gen. Wamala,
who took over from Gen. Kazini as the head of UPDF
operations. (UR Annex65, Part C, pp. 30-31; UR Annex 60,
Part C, pp. 5-6; URAnnex 63, p. 35.)
388. The Panels also failed to interview key witnesses from
the private sector who were condemned unheard. As the Porter
Commission noted,patenterrors could easily havebeen avoided
by interviewing the private individuals concerned or by
reviewing public sources such as documents from Company
registries:
The Commission is extremely concerned at
the approachof the Panel to this subject [the
DARA-Forest Case, see infra, paras. 390-
991. Nowhere in the whole of this passage
[DRCRAnnex 69, para. 541is the reliability
of sources quoted, but, considering the
emphasis put on these alleged events, the
Panel must havecome to the conclusionthat
it was safe to rely on its undisclosed and
apparently un-evaluated sources. Yet the
perception of those sources, and that of the
Panel, was quite clearly wrong. A short
interview with Mr. Kotiram would have
established the truth, and he was never
approached according to his evidence.
From the evidence, this Commission has
come to the conclusionthat the investigation
by the Panel of DARA-Forest was
fundamentally flawed.
(UR Annex68, pp. 38-39.)389. There are manyother examples of the failure of the UN
Panels to interview or meet with private individuals or
representatives of companies before making serious allegations
against them. The private individuals and companies that the
UN Panels accused of serious wrongdoing but failed to
interview include the Oryx Company (UR Annex 106, pp. 18-
19) and Mr. George Forrest and the Forrest Group of
Companies. (UR Annex 105,p. 2.) As Mr. Forrest noted, the
UN Panels were negligent in their failure to secure responses
from those against whom allegations were rnade, if not
intentionally malicious in refusing to meet with individuals and
companies who sought an opportunity to rebut allegations and
protect their reputations:
The Group of experts has undoubtedly
wished to hit hard, but by refusing to meet
with the Forrest Group and to listen to them,
the experts have intentionally comrnitted
very serious negligences, causing at an
international level the devastation of the
commercial reputation of the Forrest Group
and endangering its economical survival, for
which, without any possiblediscussion, the
responsibility lieson the groupof experts.
(Ibid)
(4) TheDARA-Forest "Case Study "
exemplifies the Iackof credibility of the
First UN Panel Report
390. The DARA-Forest case typifies the unreliability of the
First UN Panel Report -- the single document on which almost
al1of the DRC's allegations of exploitation are grounded. The
UN Panel went sclfar as to make a "case study" out of DARA-
Forest, using it to illustrate the Panel's views that "illegal"
exploitation had become systematic and deeply ingrained in
states like Uganda. DARA-Forest, however, isin reality a "case
study" of the methiodologicalfailures of the UN Panel Reports.391. In discussing DARA-Forest,the First UN Panel Report
made detailed accusations of illegality and of Uganda's
collusion in that illegality,assuredly treating those allegations
as though they were established fact,just as al1three UN Panel
Reports treat other allegations against Ugandaas fact without
supportingor corroborating evidence:
Besides extracting timber without
authorization in a sovereign country and in
violation of the local legislation, DARA-
Forest consistently exported its timber
without any certificationprocedure. It tried
to approach some certification bodies
licensed by the Forest Stewardship Council.
These bodies requested documentationand
elements that the company failed to provide.
Yet DARA-Forest exported timber in
violation of a normal procedure generally
required and accepted by the international
forest community and generally considered
to be international"soft law."
(DRCR Annex 69, para. 50;see generally ibid .aras.47-54.)
392. Because Japan was implicated by the First UN Panel
Report as an importerof uncertifiedtimber from DARA-Forest,
the Permanent Representativeof Japan to the Security Council
called forevidence supportingthose allegations:
Before concluding, 1would like to offer my
comments on the reference made in the
report to the companies located in various
countries, including Japan, whichthe report
claims are importinguncertifiedtimber from
a Ugandan-Thai forest company called the
DARA-Forest, locatedin the Ituri areaof the
DRC. The Japanese authorities are
investigating the matter and would
appreciate any concrete evidence that the
Panel of Experts rnight have to substantiate
the statement made in the report and that would assist Our Government in its
investigation.
(UR Annex 53 (PM Resumption),p. 12.)
393. The Second UN Paneldeigned to take a "closer look" at
DARA-Forest and was forced to acknowledge that DARA-
Forest is actually registered not only by the rebels controlling
the areas in whichiit operates but also by the Government of the
DRC. Without olfferingany apologies, the Second UN Panel
Report not only cloncededthis point, but also made it clear that,
contrary to the First UN Panel Report, DARA-Forest complied
with al1existing regulations, includingthose set outby the DRC
Government:
DARA-Forest is a Congolese-registered
loggincg company owned by five
shareholders. Royal Star Holdings is the
main shareholder,and is partly ownedby the
managing director of DARA-Forest, John
Kotiram. Besides Mr. Kotiram, there are
three Congolese shareholders. In March
1998, DARA-Forest wasgranted a 35,000-
hectare logging concession from the North
Kivu Provincial Authority, which grants
these concessions following registration
with the central Government. DARA-Forest
also acquired an exploitation license from
the sa.meauthority to buy and export from
local loggers...
The company, which the Panel has found to
have (romplied with al1 the regulations in
eflect, currently pays its taxes at the same
bank as it did before the area came under
rebel control...The Panel also learned that
a bimonthly check is conducted by the local
Congolese authorities in North Kivu to
ensure:that DARA-Forest is complying with
the terms of licences granted to it.
Furthermore, DARA-Forest was granted on 12 September 2001 a certificate of
registrationfronz the Ministry of Justice in
Kinshasa. This would appear to be a clear
sign of recognition of the Company and
acceptunce of its work in the rebel-held
nreas by the Government of the Democratic
Republic of Congo.
(DRCR Annex70, paras.72-73;emphasisadded.)
394. The First UN Panel Report made furtherallegations of
collusion between DARA-Forest and the Ugandan Ministry of
Water, Land and Forests whichalso turnedout to be false. That
Report claimed that DARA Great Lakes Industries(DGLI), a
subsidiary of DARA-Forest, colluded with the Ministry to
defraud the DRC by having timber certified by the Rogue
Institute for Ecology and Economy as "Smart Wood" coming
from forests in Uganda, including the Budongo forest, despite
the fact it was extracted from the DRC. Accordingto the UN
Panel, the collusion of the Ministry in this scheme was
evidenced by the "fact" that when the DARAgroup applied to
have a Rogue Institute official visit Budongo forest from 14 to
16April2000 to certify timber, "the DARA group had not even
applied for the concessionof the Budongo forest (Uganda). It
was only on 5 July 2000 that...the DARA group wrote to the
Commissioner to request the concession on the Budongo
forest." (DRCR Annex 69, para.5 1.)
395. The truth, however, is revealed by correspondence
which the Panel ignoredor misrepresented:
(i) On 11 October 1999, DGLI applied for
concessions to harvest wood from Mabira,
Bugoma, and Budongo forests (UR Annex
36);
(ii) On 21 March 2000, DGLI wrote a further
letter to the Commissioner aimed at
strengthening DGLI's application for
concessions in the three forests of Mabira,
Bugoma,and Budongo(UR Annex 38); (iii) On the same day (21 March 2000) (UR
Annex 39), DGLI wrote a letter to the
Commissionerrequesting permission to have
an officia1from the Rogue Institute visit the
Budongo and Bugoma forests;
(iv) On 5 July 2000, DGLI sent another letter
proffering further reasons for being awarded
a concession to the Budongo forest. (UR
Annex 41.) This is the letter that the UN
Panel referred to as "evidencing" collusion.
(DRCR Annex 69, para. 51 .) In making this
claim, however, the UN Panel completely
ignored the previous correspondence
between DGLI and the Commissioner.
396. Documentary evidence thus demonstrates that DGLI
applied for a concession in October 1999, well before the
planned Rogue Institute certification visit. DGLI demonstrably
did not obtain certification without applying for a concession
for the forest on which the certification was based.
397. Further negating claims of collusion, DGLI's
provisional licerices to extract timber were not summarily
granted, but rather were awarded only after the normal,
thorough Goverriment process, on 18 September 2000. (UR
Annex 42.) Moreover, those provisional licences did not permit
the Companyto extract timber, but only to prepare a work and
investment plan and environmental impact assessment and to
put in place the necessary infrastructure for implementing the
work plan. (UR .Annex43, para. 3.) The First UN Panel Report
thus simply misstated the facts in order to concoct evidence of
"collusion."
398. Further negating the claims of collusion, the Ministry on
18 September 2.000 also denied a request by DGLI for a
permanent permit to transit timber. (UR Annex 44.) The fact
that the Ministry which was allegedly party to a conspiracy
denied DGLI's application is ample evidence that there was no
suchcollusion, a:;the Porter Commissioncorrectlyconcluded: Then it can be shown that there was no
collusion..because one application which
was made to the Ministry, which, if the
Panel is right, would havebeen essential to
the alleged conspiracy, was refused by the
Ministry....
The Panel's informant no doubt did not
have, as this Commission has, DGLI's
application to the District ForestryOfficers
concerned for concessions in three Ugandan
forests, namely Budongo, Bugoma and
Mabira dated 1 lth October 1999, and
therefore have seen conspiracies where no
conspiracies exist.
(UR Annex68, pp. 34-37.)
399. Thus, the First UN Panel's archetypal "case study"of
"illegal exploitation" turned out toinvolve a Companywhich
was operating legally and in cornpliance with al1regulations.
Nothingdistinguishesthe unnamed"sources" on which the First
UN Panel Report reliedin making accusations with respect to
DARA-Forest from the unnamed "sources" on whichal1three
UN Panel Reports relied in making their other allegations. Al1
such "sources" are not credible.
Allegations about the "Victoria Group"
(5)
and "Trinity Company" are contradicted
bypublic information
400. Relying again on the First UN Panel Report, theDRC
places great emphasis on the supposed activitiesof two other
companies, the so-called "Victoria Group" and the so-called
"Trinity Company," which theDRC asserts "mettent en cause
certains ofliciers de L'UPDF, des hautes personnalités
ougandaises et les chefs rebelles soutenus par 1'0u~anda."~'
"cast doubt on the integrityof certain UPDFofficers,high-ranking
Ugandan officiaisand the rebelchiefs supportedby Uganda."(DRCR, para. 4.19; see generally DRCR, paras. 4.19-4.20.) In
fact, the DRC "casts doubt" onlyon the integrity of the sources
on whichshe places such great reliance.
401. The First UN Panel Report claimed that the "Victoria
Group" is headquartered in Kampala and is chaired by a Mr.
Khalil and owneclby Mr. & Mrs. Caleb Akandawanaho and Mr.
Muhoozi Kainerugabe. The report then alleges that the Victoria
Group is involvetlin illegalactivities in eastern Congo. (DRCR
Annex 69, para. 80.) Available documentary evidence,
however, indispu.tablyshows that there is no entity called the
"Victoria Group,'"as Uganda has previously madeclear. (UR
Annex 55,p. 21, para. 3.02(b)(v).) There is a different entityby
the name Victoria Diamond, but, even assuming that is the
company the DRC means, it is not an unlicenced entity owned
by "high-ranking Ugandan officiais." As shown by publicly
available documents, and contraryto the allegations of the UN
Panel:
(i) As established by the company's articlesof
association, the company's sole shareholders
are one Ahmed Ibrahim, a Lebanese national
who has been residing in Goma, DRC since
1972, and Kay Nduhuukire, a Ugandan
national who has been residing in Goma
since 1976(UR Annex 32);
(ii) The company has relevant licencesto engage
in the business of trading in diamonds in the
DRC. (Ibid.)
402. The easy availability of these documents at the relevant
public offices in Goma, as well as at the company's
headquarters in ithatsame city, confirm that the UN Panel at
best did not use ireasonableeffort-- or, apparently, any efforts
at al1--to establiishthe truth about the company before making
patently false all.egationsagainst the company and persons in
Uganda. At worst, the UN Panel discovered the information
and suppressed it because it conflicted with the accusations it
wished to make.403. The DRC also adopts the allegations of the First UN
Panel Report that "Trinity Company" is a company ownedby
Ugandan national Gen. Salim Saleh and his wife which has
acted ascover for myriadillegal activities in the DRC. (DRCR,
para. 4.19; DRC Annex 69, para. 81 .) Documentary evidence,
however, demonstrates that there is no "Trinity Company."
(SeeUR Annex 55, p. 21,para. 3.02(b)(v).) There is a company
named Trinity (U) Limited, a perfectly legal company,
incorporated in Uganda. If the Panel was trying to referto that
company, publicly available documentsat the Registrar's office
in Kampala show that Trinity (U) Limited, contrary to the
allegationsof the UN Panel, is not owned by either Gen. Saleh
or his wife. The four subscribers to al1 the shares of this
company are listed in its Memorandum of Association as
Messrs.Niyibigira Innocentof Post Office Box 2428, Kampala,
Uganda; Kayita Deo of Post Office Box 10239, Kampala,
Uganda; Hashaka James of Post Office Box 123, Kisoro,
Uganda; and Serushago James of Post Office Box 8750,
Kampala, Uganda. (UR Annex 34.)
404. Testifying before the Porter Commission, Gen. Saleh
flatly denied allegations of looting of Congo resources and, in
addition, provided his foreign accounts to theUN through the
Commission and promisedthat his wife wouldalso release hers
to the UN Panel for investigation. (UR Annex 102;see also UR
Annex 104.) Gen. Saleh alsomade clear that his assignment
from President Museveni was to "bring about peace between
Uganda and Congo." (URAnnex 102.) That role, and the
DRC's recognitionof it,was recentlyconfirmedby the fact that
President Museveni and President Kabila of the DRC jointly
assigned Gen. Saleh the duty of repatriating the Congolese
rebels and government soldiers living in Uganda. (UR Annex
104.)
405. Thus, as with the so-called "Victoria Group," patently
false allegations weremade about the "Trinity company" by the
UN Panel, and adopted by the DRC, despite the existence of
readily available documentation to the contrary. It is
particularly significant that the UN Panel (DRCR Annex 69,
paras. 80-81), and the DRC (DRCR, para. 4.19), asserted
repeatedly that the allegations about the VictoriaGroup and theTrinity Company were based on "reliable sources." The fact
that information was readily available to contradict the
allegations, but that no apparent effort was made to confirm,
discuss or even investigate those allegations, makes clear that
the DRC's standard of "reliability" is unacceptable for the
purposes of this Court.
D. The NatureOfUganda's InterventionIn The
CongoWas InconsistentWithExploitation,
As The UnitedNationsHasImplicitlv
Recognised
(1) Thelimitednature of Uganda 's
irzterverztios inconsistent with
exploitation
406. Uganda has establishedin this Rejoinder (supra, Ch. III)
that the presence of UPDF troops in eastern Congo was
motivated solely by Uganda's profound security concerns.
These security concerns have been repeatedly acknowledged
and validated by boththe DRC and the international community
in international legaland diplomatic instruments, including at
least two bilateral agreements between Uganda and the DRC
(supra, paras. 89-93, 105, 233-34), various diplomatic
communiquésbjr officials of both Uganda and the DRC, a
multilateral treaty (see UCM Annex 43, and various United
Nation Security Council Statements and Resolutions. These
instruments esta.blish that Uganda has legitimate security
concerns that caused her to send troops to eastern Congo,
initially with the consent of the DRC, to shore up Uganda's
western border against incursions by various anti-Uganda
insurgents based in the DRC. When the DRC purported to
unilaterally withtiraw the consent, Uganda exercised her right
to self-defenceunder international law. (Supra,Ch. II.)
407. The limited nature of Uganda's intervention is utterly
inconsistentwithithe DRC's theory that Uganda occupied the
eastern Congo in1order to exploit natural resources, and totally
consistent with IJganda's exercise of her right to self-defence.
As discussed in imoredetail above, Uganda had, at the peak of
the deployment, fewer than 10,000 troops in eastern Congo,fewer troops than those of Rwanda, Zimbabwe (a DRC ally)
and Angola (another DRC ally), and also far fewer than the
number of rebel troops in the region. (Supra, paras. 170-71 .)
Uganda's troops, moreover, were concentrated at specific
strategic locations, ratherthan spread acrossthe region. (Supra,
paras. 170, 173-74.) EasternCongo is an area roughly thesize
of Germany, which clearly could not have been "occupied" or
"controlled" with Uganda's contingent of fewer than 10,000
troops, particularly when other troops (including those of the
DRC's allies) were deployed in the area. (Supra, para. 172.)
Had Ugandain fact intended toexploit the DRCeconomically,
she would have ensured that she had sufficient troops on the
ground to controlal1areas in which natural resources, minerals,
timber, coffee, and so on, were being produced and she would
have deployed those troops across the region to control those
loci of production. But Uganda's troops did not in fact fan out
across the countryside as an occupying force. To the contrary,
Uganda placed only a limited number of troops in lirnited
locations whichwere of strategic military relevance, belyingthe
DRC's arguments.
408. Uganda also did not engage in civil administration in
eastern Congo. Under the Lusaka Agreement, which
recognised the de facto situation on the ground, such
administration was assignedto the RCD and MLC rebelswho
had the requisite competence to regulate and oversee the
commercial and economic activities in the regions they
controlled. (Supra, paras. 198,201, 204-210.) Control by the
rebel groups is also acknowledged by the Secretary Generalof
the United Nationsin his many reports to theSecurity Council
on the situation in the DRC. In these reports, the Secretary
General explicitly discusses the human rights situation in the
DRC in terms of "government-held territory" and "rebel-held
territ~r~."'~
"Sec, e.g.The Reports of the Secretary-General on the United Nations
Organization Mission in the Democratic Republic of the Congo, specifically
The Tenth Report (DRCR Annex35,paras. 80-84); The Ninth Report
(DRCR Annex 34, paras.45-50)The Eighth Report (DRCR Annex33,
paras. 64-70); The Seventh Report (DRCR Annex 32, para. 77); The Fifth409. The nature of Uganda's intervention contradicts two
positions taken by the DRC. First, Uganda was not in control
of, or in occupationof, any portion of the territory of the DRC,
so Uganda could!not have exercised the pervasive economic
control required to exploit the areas as alleged by the DRC.
Had Uganda intended to exploit the resources of the DRC,
Uganda would inot have limited her presence as she did.
Second, the rebels controlled and had administrative
responsibilityfor areas of eastern Congo, so any contention that
only the DRC Galvernmentcould licencecommercialactivity in
these regions is rriistaken.
(2,) The UNand DRCpositions are
inconsistent withexploitatioby Uganda
410. The United Nations and the DRC have implicitly
rejected the premise of the Panel Reports that the UPDF
presence in eastern Congo was designed to facilitate illegal
exploitation.
41 1. The Lusaka Agreement, first of all, contemplated the
continued presence of Ugandan troops in the DRC, andthen the
importance of that presence was thereafter reaffirmed on4 May
2001 by the Secretary-General of the United Nations. (Supra,
paras. 104, 177,213-23.) The continued presence of the UPDF
was demanded by the critical contribution of Ugandan troops to
the maintenance of peace in the DRC. Even now, with the
withdrawal of Ugandan troops fromeastern Congo, the Luanda
Agreement and the United Nations recognise the need for the
continued presence of the UPDF in Bunia. (Supra, paras. 105,
179, 229, 233-34; infra, paras. 600-04.) Recognition of the
beneficial contributions of Ugandan troops and demands that
they remain in eastern Congo are utterly inconsistent with
allegations that the UPDF was engaged in widespread looting,
exploitation and other abuses.
Report(UCMAnnex80,para.65);andTheFourthReport(UCMAnnex74,
para.61). (3) TheDRC's other sources support
Uganda'sposition
412. The DRC also places reliance on the so-called
Resolution of the European Parliamerzt on the illegal
exploitation of the DRC's natural resources, 5 July 2001.
(DRCR, para. 4.06, 406 n.6.) Even were the "5 July 2001
Resolution" which the DRC has includedas Annex 72 to her
Reply to be taken at face value for the sake of argument, it
would notsupport the DRC'sclaims against Uganda. First, that
resolution does not even pretend to set forth any independent
basis for its assertions, relying instead on other documents
which arethemselves un~ubstantiated.'~Second,that resolution
does not assign any responsibility tothe UPDF or to Uganda,
or, indeed, even mention the UPDF or Uganda. Finally, the
resolution asserts "that, first and foremost,it is the duty of the
concerned parties to implement the Lusaka Agreement," which,
as discussed above, contemplated the continued presenceof the
UPDF ineastern Congo. (Supra,paras. 104,177,213-223.)
413. Otherdocumentsthat the DRCcites likewisedo not find
Uganda culpable, but do recognise the importance of
compliance with the Lusaka Agreement. Forexample, the
Report of The Al1 Party Parliamentary Group on the Great
Lakes and Genocide Prevention (DRCR Annex 75) does not
even nominally mention Uganda as responsible for illegal
exploitation of natural resourcesin the DRC. To the contrary, it
clearly reaffirms the Lusaka Agreement, stating thatit is
"impossible to resolve conflict in one of these countries without
looking at the causes and implications of conflict in others....
The demobilisation and resettlementof armed groups iscritical
to the successof the Lusaka Peace Process." (Ibid.,p. 3.)
85Other documents relied on by the DRC, such as DRCR 77,are
solely based on the UNrsPanel Report, which, as has been demonstrated
above, is utterly unreliable. E. The First United Nations Panel ReporO t.n
Which The DRC'sCaseRests,Inaccurately
ConstruesTheContext Of Uganda's
InterventionInThe Congo
Ugandanforces did notfight in the so-
(1)
called First Congo Warin 1996-97
414. The firstIJN Panel started withthe premise that UPDF
troops had become familiar with the business potential of
eastern Congo during the so-called FirstCongo War in 1996-97
while allegedly fïghting alongside Laurent Kabila's forces in
the anti-Mobutu insurrection. Having learned of the resources
in eastern Congo, the Panel's argumentgoes, the UPDF was
only too eager tolreturn. Without proffering any evidence of
involvementby the UPDF in the First CongoWar, the First UN
Panel Report proceeds from the premise thatsuch involvement
led directly to a decision in 1998 to return and exploit the
resources of the DRC:
Some historians have argued that Ugandan
forces were instrumental in the conquest of
areas such as Wasta, Bunia, Beni and
Butembo during the first war.
..Nunnerous accounts in Kampala suggest
that the decision to enter the conflict in
August 1998 was defended by top military
officials who had served in Eastern Zaire
during the first war, andwho had a taste for
the business potential of the region. Some
key witnesses who servedwith the Rally for
Congolese Democracy rebel faction in early
months, spoke about the eagerness of
Ugandanforces to move in and occupy areas
where gold and diamond mines were
locatetl.
(DRCRAnnex 69, paras. 26-27.)The second UN Panel never bothered to correct this theory of
the first Panel, despite the fact the theory is, as shown in
Chapter II, demonstrably wrong.
415. UPDF troops were not ineastern Congo during the First
CongoWar in 1996-97. While it is true that Uganda gavemoral
support to Laurent Kabila's forces, it is not true that the UPDF
fought alongside Mr. Kabila's forces in the anti-Mobutu war.
Even when Uganda was subject to cross-border attacks from
rebels aided and instigated by former Zairean President Mobutu
and the Zairean State, Uganda did not deploy troops in Zaire,
either independentlyor in aid ofMr. Kabila'sAFDLmovement.
Uganda's non-involvement in the First Congo War was
confirmed by Paul Kagame, Rwanda's VicePresident and
Minister of Defence, who made clear that troops from Rwanda
and Angola, but not Uganda, were involved in the AFDL's
overthrowof President Mobutu. (Supra,paras. 115, 161-66.)
416. Uganda's non-involvement in the First Congo War was
also established by sworn testimony given before the Porter
Commission. Chapter II cites the sworn testimony of the
Honorable StephenKavuma,Uganda's former Ministerof State
for Defence; the Honorable Amama Mbabazi, Uganda's current
Minister of State for Defence; the Honorable Kamanda
Bataringaya,then and current Ambassador to the DRC;and Lt.
Col. Andrew Lutaya Lugobe, the sole Ugandan who
participated in the war against President Mobutu. (Lt. Col.
Lugobe had been sentby Uganda to Rwanda toassist withanti-
smuggling operations. He participated in the anti-Mobutu
struggleat the specific request of Rwanda's then-VicePresident
and Minister of Defence and current PresidentPaul Kagame.)
(See ibid.) As the Honorable Amama Mbabazi made clear
when he testified unequivocally under oath, Uganda did not
have troops in the DRC when President Mobutu was
overthrown:
Justice Porter:
That is Ourdifficulty at the moment. We are
trying to work out whether Uganda was
directly involved in the overthrow of Mobui:~;that is what we are trying to work
out... And it would be nice if somebody
could come up and Say: yes, we were or no,
we were not.
Hon.Mbabazi:
No, we were not.
(UR Annex65, Part A,p. 15.)
417. The DRC's argument also ignores the expense to
Uganda of the Congo war, which the DRC herself emphasises
(infra, para. 425), and the fact that there were untapped
resources in Uganda which could have been exploited without
incurring such expense. A brief picture of the untapped minera1
resources on Ugandan territoryis provided by two documents,
one a brochure targeted at potential foreign investors, Uganda:
Opportunities for. Mining Investment (UR Annex 5), and the
other a more extensive description of Uganda's untapped
minera1 resources, The Minera1 Resources of Uganda. (UR
Annex 1.) Ugan'da'sresources were in fact acknowledged by
the DRC during a meeting between Presidents Museveni of
Uganda and Kabila of the DRC held in Kinshasa on 10August
to 13 August 1997. (See UR Annex 18, pp. 11-12.) Uganda
thus had her owri resources which could have been exploited
without incurring the expense of sending troops to another
State. It is illogical to assert that Uganda chose a more costly
method to secure naturalresources.
418. To the contrary, as notedabove in Chapter II, Uganda
was forced into eastern Congo for purposes of self-defence. In
fact, the attacks sponsored by theDRC not only threatened the
lives of Ugandan troops and civilians, but also affected
Uganda's ability to explore her own resources in her western
regions, as evidenced, for example, by a memorandum by the
Commissioner of Petroleum in the Ministry of Energy and
Minera1 Development regarding the licensing of a Canadian
Company, Heritage Oil Gas Limited, to carry out petroleum
exploration, development and production in theSemliki Basin
dong the Congo-Uganda border. That memorandum noted thatthe security situation in the region, including particularlycross-
border attacksby the ADFbased in eastern Congo, significantly
hampered oil exploration in western Uganda. (UR Annex 109.)
Uganda was forced to commit troops to eastern Congo to
protect her own security, not to exploit the resources of the
DRC.
419. The UN Panels thus embarked on their investigationsin
total disregard of the facts. In effect, the UN Panels'
conclusions were pre-ordained once they adopted the facile
premise that the UPDF had entered eastern Congo for the
purpose of exploiting that area's natural resources. This critical
fact is acknowledged by Congolese rebel leader Jean-Pierre
Bemba, on whose book the DRC repeatedly relies, in the
following starkwords:
Décidé à en découdre avec les autorités
rcvandaises et ougandaises, le panel
d'experts s'est exclusivementorientévers la
recherche de tous les indices qui attestent
une exploitation des richesses naturelles du
Congo par les "aggresseurs". Dans les
recherches, les experts ont tenté de
démontrer que les armées ougandaises,
rwandaises, du RCD et l'armée de
Libération du Congo ont participé à un
véritablehold-up...
La volonté délibérédee nuire est tellement
manifeste que lepanel d'experts n'apas pris
la peine d'apporter la moindre preuve des
allégationsrelayées dansson rapport. Au
lieu de s'attacher à démontrer les
mécanismes éventuels d'exploitation
frauduleuse, ou de rechercher des preuves
tangibles de tous lesfaits misma charge,
les experts se sont contentésde produire un
travail digne d'un journaliste de presseà scand~zles pour un lectorat avide de
sensat,ionsfortes.86
(UR Annex 46, pg. 227-28.)
(2) Ugandadid notfinance the war through
exploitation of theDRC
420. The First UN PanelReport, to buttress its argument that
Uganda was exploiting the DRC's resources, alleges that
Uganda was only ableto finance her presence in eastern Congo
through such expl.oitation. Like so many other assertions in the
First Report, howi:ver,this hypothesisis demonstrablywrong.
421. The First UN Report Panel made two misguided
assumptions in this regard. First, it assumed thatsince Uganda
made a commitment not to increase her defence spending she
must have needed external sources of funds to finance her
campaigns in eastern Congo. To imbue this mistaken
hypothesis with an aura of credibility, the Panel then made the
added rnisguided argument that Uganda must have embezzled
some taxes from eastern Congo. (DRCR Annex69, paras. 135-
42; DRCR, para. 4.28.)
(a) The UN Panel overestimated the
cost of the war
422. In order tojustify the first assumption thatUganda could
not have afforded to maintain her campaign in eastern Congo
without engaging in exploitation, the Panel used a number of
incorrect figures to calculate what it assumed must have been
86"The Panel was determined to target the Rwandan and Ugandan
authorities. It was exclusively aimed at finding evidence that would attest to
an exploitation of the DRC's natural resources by 'the aggressors.' The
experts tried to demonstrate that the Ugandan, Rwandan, ALC, and
armies participated in a hol..up..
The deliberate will to vilify is so obvious that the Panel of Experts did not
take care to evidence the allegations in the Report. Instead ofdemonstrating
the possible mechanisms of fraudulent exploitation or of searching for
tangible proofs of al1the deeds 1allegedly committed, the experts produced
something worthy of,gutterpress for a thrill-seeking readership."the costs of maintaining UPDF troops in eastern Congo. The
Panel started withthe assumption that thedefence allocation in
Uganda's budgetis around 2%. The UN Panel then proceeded
to make a number of untenable assumptions: that a bonus of
US$20 per soldier was paid to each soldier; that based on a
"rate of $2,000 per hour and six hours on average for a return
journey and three rotations a day, UPDF spends on average
$12.96 millionper year on transportation alone," and so forth.
(DRCR Annex 69, paras. 116-17.) Like every other aspect of
the First UN Panel Report, these unverified assumptions are
wildlyoff the mark.
423. The Porter Commission Report summarised the sworn
evidence received from at least three credible witnesses that
there was no such thing as a bonus paid to soldiers: "in
paragraph 141, the Panel talk[ed] of officia1 bonuses. This
Commission has the clearest evidence that no official bonuses
were paid to soldiers in the Democratic Republicof Congo."
(UR Annex 65, p. 52; see, e.g., UR Annex62, pp. 33-34.)
424. The assumptions and calculations madeby the First UN
Panel regarding transportation costs were also contradicted by
unimpeachable evidence and logic in testimony by Dr. Ben
Mbonye, the Permanent Secretaryin the Ministry of State for
Defence (the Chief AccountingOfficer):
LeadCounsel:
Can you read paragraph 117 [of the First
Report] please?
Dr.Mbonye:
"On the basis of a rate of $2000 per hour,
and six hours on the average for a retum
journey, and 3 rotations a day, UPDFspent
on average $12.96m per year on transport
alone. Other expenses for purchases,
maintenance and replacement of equipment
are important. According to some sources,
Uganda spent $126 million on its armedforces in 1999, an over-spending of about
$1 6n1."
This calculation My Lord seems to assume
that there were three trips per day on a
journey of six hours. 1 would need to
calculate this into more detail My Lord -
before me to ascertain that this figure would
be correct.
Justice Porter:
You sâid that you wanted to do your own
calculations, and you said that there was an
assumption that there were three rotations a
day --six hours for a return journey. That's
what the Panel said. You had a chance to
look al:al1this?
Dr.Mbonye:
Yes 1 did My Lord -- the calculation here
My Lord states that there was a $2000
charge per hour for a return journey of six
hours and three rotations in a day. That
would corne to about -- first of al1 that
cornes to about 18 hours per day. If you
consider that they would first load the
aircraft, and 1recall they would load until
about 10.00 o'clock, 11.O0 o'clock before
departme, and at the same time they were
not supposed to return at nightfrom what 1
recall, it would not be true thatthey would
fly at riight. It was not true thatthey would
use 18 hours in one day. They would
definitely use less. And they wouldn't... Justice Porter:
Right. So you what are saying that the
calculation...is quite wrong?
Dr. Mbonye:
It's wrongMy Lord.
Justice Porter:
And it is shown to be wrong by the figures
which you'vebeen producingto us?
Dr.Mbonye:
Yes My Lord, because it also assumes that
they were flying three trips perday for 365
days in a year. 1recall that they were not
flying everyday. And even whenthey flew,
from what 1recall, it would be difficult for
them to make two trips in a day; not even
three. So the calculations My Lord in that
provision is quite wrong. In 117.
(URAnnex 62, pp. 35-36.)
(b) The war was fundedfrom
Uganda'sdefence budget
425. The Porter Commission received corroborated and
convincing evidence fromseveral senior Government officiais
that Uganda was able to finance her campaign in eastern Congo
by cutting several defence expenditures while simultaneously
running a budget deficit. Dr. Mbonye testified that al1
operations of Ugandan troopsin eastern Congo were fundedby
the defencebudget. Because of the unexpectedcosts of the war
in Congo, the 98/99 budget of 147 billion Uganda shillings
(approximately US$85 million) wasoverrun by 30%. For the
financial year 99/00, however, the budgetary allocation was
increased substantially to 188 billion Uganda shillings
(approximately US$107 million), which almost completelymetthe cost of the wu, Savefor a small 5% ovenun. (UR Annex
62, pp. 2-12.)
426. Dr. Mbonye categorically stated that the UPDF
campaign was totally funded by Uganda's budget, and
absolutely no funds were received from any other source. On
this point Dr.Mbonye testifiedunder oath that:
LeadCounsel:
And in1these operations,..the only source of
funding to the troops was from your
Ministry.
Dr. Mbonye:
It was my Lord because we would be told
that some of these provisions were supposed
to support the troops in Congo. And those
would be for food, for chartered aircrafts
and fuel provisions,and things like that. So
we did provide their support from Our
normal1budget My Lord.
JusticePorter:
You d:idn'texpect the troops on the ground
to fund themselves, by trading or doing
whatever...[lilving off the land and..
Dr.Mbonye:
No. We were always asked to make
provisions forthem.
Lead Counsel:
Well, -werethe troops in the Congo at any
time, in particular 1am referring to some of
the Colonels -- were they at any time paid their salaries by the rebel groups in the
Congo?
Dr.Mbonye:
1am not awareof that My Lord.
Lead Counsel:
Was your budget at any time supplemented
by other sources otherthanthe Treasury?
Dr. Mbonye:
No My Lord, 1 don'trecall getting any funds
from any other sources other than the
Treasury. We never did.
(UR Annex 62, pp. 13-14.1'~
(3) Ugarldadid izotcollect taxesfrom the
transit and re-exporof "exploited"
resources
427. Grasping formore support, the Panel also assumedthat
duties and excises derived by Uganda from goods being
transited by roadfrom easternCongo and then re-exportedfrom
Uganda contributed heavilyto Uganda'seconomy, providingan
incentive for Ugandato prolong the conflict:
The Panel concludesthat, giventhe absence
of the exoneration on the Ugandan side, and
a higher level of taxes in Uganda, customs
duties related to transiting of Congolese
naturalresources exploitedby Ugandans and
some Congolese in Equateur and Orientale
87The testimonyof Dr. Mbonyewas corroborated on oath by that ofHon.
StephenKavuma, who wasthe Ministerof State for Defence(UR Annex 59,
Part D, pp. 21-22),and Maj. Gen. Wamala, who headedthe UPDF
Operations in eastern Congo. (UR Annexpp. 24-25.) Provinces would bring the treasury at least
$5 millionevery month.. ..
The Ugandan situation can be summarized
as follows: the re-exportation economy has
helped increase tax revenues, allowing the
treasury to have more cash.
(DRCR Annex69, paras. 139, 142.)
428. The Panel's theory, however, reveals a fundamental
misunderstandingof Ugandan tax law. As Mr. MichaelAtingi-
Ego, the Acting Director of Research at the Bank of Uganda,
explained under oath before the Porter Commission, the
provisions of The External Trade Act (1991), together with
Investment Code No. 1 of 1991 and Exchange Control (Forex
Bureau) Order No. 7 of 1991, replaced the rigid applicationof
the licensing system with a certification system whereby both
exports and re-exports are not taxed in a bid to increase
Uganda's non-traditional exports. (UR Annex 55, pp. 51-53.1~~
This means that 1Ugandaderives absolutely no taxes from the
so-called re-exportation economy andthat the Panel's theory as
to why Uganda would encourage illegal exportation is patently
wrong.
429. Reinforcing this point, Mr. Atingi-Ego testified as
follows:
Mr.Atingi-Ego:
...Firsi:of all, re-exports are not taxed just
like ariy exports are not taxed so 1 do not
know how benefits would have come in
there.. .how will it benefit Uganda?
See, also, Summary Repoonthe Visitto Ugandaby the Reconstituted
UNPanel of Experts on theIllegal Exploitationof NaruralResourcesof the
DRC 23-25 August, 2001, Appendedto UR Annex72, pp.20,21,34-35.AssistantLead Counsel:
...I am talking in terms of benefit to the
treasury in terms of taxes or custom duties.
Please look at paragraph 138 where they
make that allegation that there were trucks
carrying timber, coffee,minerais, etc.
Mr.Atingi-Ego:
Paragraph 138,the very first sentence reads:
Secondly, illegal exploitation of gold in the
DRC brought significant improvement in the
balance ofpayments of Uganda.
That statement is wrong because this
Commission's current account balance has
been deteriorating so much, this
Commission's exports are far less than this
Commission's imports so 1 do not know
how it is improving and the improvement in
the overall balance of payment is largely as
a result of donor in flows coming to this
country not as a result of exports because
there are far less compared to this
Commission's imports even the tables 1have
here show that the current account has been
deteriorating for a long time and this is
being financed by donors to the extent that
exports, leave alone the re-exports are not
taxed. 1 do not see how the treasury benefits
from this.
AssistantLead Counsel:
Because you are saying that customs
wouldn't be paid on transit and re-exports.
Custom duties wouldn't be paid on re-
exports so the treasury wouldn't benefit? Mr.Atingi-Ego:
No they do not tax exports, any exports in
Uganda arenot taxed.
AssistantLead Counsel:
The stiitementthat the Ugandan treasury got
at leasit5 milliondollars every month..
Mr.Atingi-Ego:
To the best of my knowledge that is not the
case because the exports are not taxe[d] so
how would thetreasury benefit?
(UR Annex 68, pp. 54-56; see also ibid., p. 54 (testimony of
Justin Zake).)
F. TradeBetweenUgandaAnd EasternCon~o1s
BenignAnd Legitimate
430. The residents of eastern Congo and of Uganda have
been trading with each other since time immemorial. The UN
Panel and, in its wake, the DRC cite the results of this trade,
including Ugandan consumer goods being sold in shops in
Gbadolite and Bunia in eastern Congo, as evidence of "illegal
exploitation." (DRCR, para. 4.25.) Nothingcould be further
from the truth. The DRC and the UN Panels simply ignore the
fact that continued trade between easternCongo and Uganda is
a natural outgrowth of the common culture and common
language shared by individuals on each side of the border, as
well as the proximity of Uganda and the availability of
transportation to Uganda. Moreover, the DRC attacks trade
which was critical to the survival of the populations of eastern
Congo, given the inaccessibility ofthe remainder of the DRC to
that area.
431. In al1their Reports, the UN Panels fail to differentiate
between legal and illegal business activities in eastern Congo.
In both the Secorid and Third Reports, also, the Panel repeats
the unfathomable act of ignoring both the Lusaka Agreementand the reality on the ground (that the rebels are
administratively in control of eastern Congo). Against this
backdrop, the Panels continueto view virtually al1commercial
activities in eastern Congo as illegal, including those that pre-
date the present conflict inthe DRC,'~thosethat are specifically
licenced and perrnitted by the DRC ~overnment,~'and those
that are carried out pursuant to the Lusaka Agreement's
injunctionto create a corridorfor humanitarianas~istance.~'
(1) Tradebetween eastem Congoand
Ugalzdahas occurred since time
immemorialand cannot be described as
"illegal exploitation"
432. Trade betweentraders of Uganda and easternCongo has
always taken place, long before the current conflict and long
before any presence of Ugandan troopsin eastern Congo. Such
trade was, in fact, the subject of officia1 communications
between Uganda and the Government of Zaire. During a
meeting between the Honorable Eriya Kategaya,then Uganda's
First Deputy Prime Minister, and the Honorable Jean Marie
Tumansi Kititwa, Zairean Deputy Prime Minister, in
Ouagadougou, Burkina Fasoon 4 December to 6 December
1996,duringthe occasionof the 19'"France-AfricaSummit,the
89See infraparas. 432-1.Most of the trade that UNePanel treatsas
"illegal" merely for the reason thatit does not have theimprimatur of the
DRC Government in Kinshasa, has,in fact, existedce time immemorial,
even before the formation of the DRC as a State.
90See supra,para. 393infraparas. 449-55. As thRejoirldeand the
Second UN Panel Report havedemonstrated, some of the individuals and
companies operating in eastern Congo were, in fact, licenced by the DRC
Government.
91See infraparas. 442-48. Uganda permitted tradein essential goods
specifically to ease the humanitarian crisis in eastern Congo. This was in
accordance with the Lusaka Agreement, whichatesin Articl10:
The Parties shallfacilitate humanitarian assistance through the
opening up of humanitarian corridors and creation of conditions
conducive to the provision of urgenthumanitarian assistance to
displaced persons, refugees and other affected persons.
(UCM Annex 45, Art. 10.)latter specifically requested that the Ugandan Government
facilitate the movement of Zairean merchandise and trucks
transiting through Uganda. (URAnnex 9, para. 6(iv).)
433. In addition, trade was commonplace between the
peoples of the Rukingiri districtof western Uganda and of the
Rutshuru district of eastern Congo, as was evidenced by the
"good neighbou:rliness" meetings organised by the two
countries during the period when guerillas basedin the DRC
started attacking Uganda. As can be gleaned from the agreed
minutes of one such meeting, trade was the overarching theme
of these meetings. (URAnnex 3,p. 4.)
434. The long-standing cross-border trade is further
confirmed by the sworn testimony before the Porter
Commission of )Ion. Bernadette Bigirwa, the former District
Commissioner of the Rukingiri district. Hon.Bigirwa testified
that trade was utirestricted along the border with individuals
trading in consumer goods such as bitenge (traditional clothes),
salt, and other foodstuffs as well as commercial goods such as
timber and coffee.. (UR Annex58,pp. 12-15.)
435. Similarly, Dr. Crispus Kiyonga, Minister in the
Government of Uganda and Member of Parliamentfor Bukonzo
County West in Kasese District on the border between Uganda
and the DRC, gave a persona1account under oath of the cross-
border trade that he hadactually witnessed and participated in
as a boy and yourigman. Dr. Kiyonga first explained the trade
in coffee, pointing out that it would flowfrom time to time in
different directions, and emphasising the fact that tribal
affinities were not defined by politicalborders:
Justice Berko:
Can you tell us something about say cross
border trade between thetwo countries?
Dr Kiyonga:
Yes My Lord and 1think this will be helpful
because many people I think they talkfrom
hear-say butfor me I live in that area.Justice Porter:
That's why we wanted you to come and talk
to us.
Dr Kiyonga:
Yes. In 1960when Congo got independence
1was a young boy in P.4 no in P.2 in 1960.
In 1962 1 saw Bakongo coming to Uganda
as refugees when the fighting started across
there and 1 also saw our people in Kasese
some traders getting rich in 1960, 62, 63 by
trading in coffee which was coming from
Congo. The Bakongo peasants more traders
were bringing their coffee to Uganda for a
long time 1think up to may be the late 60's.
The coffee was coming from Congo and
bought by Our people and exported by our
people either through cooperatives or private
traders. Then 1think during Amin's time 1
can't remember exactly the time because 1
was now in secondary school not staying in
the village but definitely there was a reversal
Our people started taking their coffee to
Congo.. . [Then Uganda] had reforms here
economic reforms...[and] the peasants
started..selling coffee here and the
Bakongo started now also bringing their
coffee. So on coffee as one example 1
would say the trade has always been
oscillating depending on where the market is
better it is a natural response to market
forces. If the market is better in Congo we
take our things there. If the market is better
here we bring incidentally that border just
cuts across one tribe. My people the
Bakonzo people in Uganda were just ?h a
million in Congo they cal1them Banandi but
were the same people they are 3 Y2 million so we intermarry we talk the same language
and we trade, we trade together.
(UR Annex 67, pp. 8-9; emphasis added.)
436. Dr. Kiyonga then testified to the longstanding trade in
timber, with prodi~ctsfrom Congo being sold in both Kenya and
Uganda:
Then the other significant trade has been in
timber. Timber wood for a long time sinc1
was a small chil1 have seen timber corning
from Congo on huge trucks. Coming some
timber they sell in Kasese not so much
because we have Our own timber 1 think
some of the Bakongo come and sell in
Kampala here but most of it, it was being
soldin Kenya for a long time. Bakongo
themse:lvesbring their timber some they sell
here iniUganda most of it they were selling
in Ken.ya. Even now if we go you will see
Bakongo with their trucks carrying timber
taking it across to Kenya and some they are
selling here. That1have witness.
(Ibid.,p. 9.)
437. The long-existing trade in gold was described next by
Dr. Kiyonga, who included a personal anecdote from his youth:
The other trade which was under cover is
gold alluvialgold. 1can testify that thereare
business men even now in Kasese who from
that tirne 60's 70's used to quietly get gold
from Clongofrom other traders and take it to
Kenya to sell to Asians in Kenya1 think the
trade here was not so strong and the
smuggling was obviously not allowed so
they were doing it under cover 1 could tell
you that when 1 went into exile in 1981, 1
was a young boy and just finished medical
school 1had no money 1 don't know where 1 was goingin Kenyajust to save my life, so 1
went to one trader how do 1 live in Kenya?
So he told me,if you have money,1 can give
you some gold. Oh 1 said 1see, but where
will 1put the gold? He said you will sell it
to the Asians. So 1 said1 have only eighty
thousand shillings. He gave me what he
called four tollers. So 1 took them asked
him how will 1carry this? You put in your
socks. So that's whatthe businessman told
me. So 1put in my socks 1 escaped across
the border to Kenya he gave me telephoneof
this Asian1 telephoned himhe said "oh you
are from my friends" he said "bring your
(nani)" then he gave me five thousand
Kenyashillings which 1lived on until 1got a
job in Kenya. So this has been going on
between our people in Kasese and maybe in
Kampalahere and tradersin the Congo.
(Ibid.pp. 9-10.)
438. He also explained that eastern Congo received goods
from Uganda as part of established bilateral trade which was
critical to the welfare of eastern Congo:
The Bakongo what they use, their supplies
in eastern Congo comes from outside,
mainly things like clothing, paraffin,petrol,
cement, most of the textiles comes from
abroad from China from Singapore, supplies
likecement like ironbars building materials,
either from Kenya or from Uganda. Soap
from Uganda. Plasticsfrom Uganda. Then
in return Our people also get some things
like timber trade the women in my
constituency they go to buy a particular
cloth called bitengi. They go and buy them
from Congo they sell them in Kasese and
here in Kampala. They go and buy plates,
kitchen ware and bring here. So trade goes on there and nobody can stop that trade, that
1can be sure. Even if you put troops there,
you cannot stop that trade. It has to respond
fast that these are the same people, secondly
they hiaveneeds, and they look where there
is a supplier and where there is a market.
(Ibid.p. 10.)
439. Finally,Dr. Kiyonga pointed out that eastern Congo has
been endowed with natural resources, but has suffered from
maladministration since 1960, when Congo became
independent:
That's what 1 would Say about trade but
what h4yLords could also be relevant to this
Inquiry and also to the UN, these Congo
people are really suffering people, and the
result of their suffering we will al1suffer not
only fi-om security, from fire even from
disease, you see we are always getting
Cholera from Congo because there is no
administration there. In my constituency we
have a hospital we've just built recently, if
you go something like 30-40% of the
people who come to attend are from Congo.
They are suffering people, Congo is in my
view, richly endowed with these minerals,
with forest, with water, so for 1ewould be
happy if the UN was asking where have the
resources of Congo been going since 1960?
They vvouldjust ask about 1996 where have
the resources of Congo been going, since
1960? The country is still poor, you go and
see those poor peasants, there are no roads,
there iis no power supply, and yet these
resources have been going who has been
taking them. The UN really would help
Congo as now we hope they will
democratized to ask these questions. Who
has been taking the wealth of Congo not since 1998 but since 1960, when Bakongo
got independence. The mining has been
going on who has been taking this money.
(Ibid., pp.0-11 .)
440. The Porter Commission noted testimony, such as that of
Dr. Kiyonga, that thesame ethnic groups and families reside on
each side of the border, and that there has been cross-border
trade in one form or another "since time immemorial." (UR
Annex 68, p. 42.) That trade, the Commission noted, is
widespread and not haphazard:
Further, the cross border markets are not
some hole in the corner affair. There are
market days arranged by agreement from
both sides of the border, and proper
arrangements in the market places: the best
market this Commission saw was in Ariwari
which was fully stocked with an array of
goods for local purchase. In Mpondwe and
Kasindi there were representatives on both
sides for Chamber of Commerce, and proper
arrangements for resolution of trade disputes
had been put in place. Every sign that this
Commission saw was the OFIDA and
Ugandan Customs were operative and
visibly present.
(Ibid., p. 43
441. It thus would have been not only futile but also inimical
to the population of eastern Congo to prevent trading in that
region. The Security Council has recognised that inescapable
fact. For example, in the discussion on the First UN Panel
Report, the Representative of Colombia stated:
[W]e recognize that, for a long time now
and because of its geographical location, the
eastern part of the Congo has strong
economic links to the neighboring countries.
That is why it came as no surprise to us that there is an active import-export trade there.
Tt is appropriate nonetheless to preserve the
mutual benefits of that trade with a view to
the future reconstruction of the economy of
the Great Lakes region. Any peace
conference for that region should take that
aspect into account.
(UR Annex 53, p. 4.)
(2) The trade which the DRC attacks was
essential to the survival ofthepopulation
of eastern Congo
442. The trade was particularly critical to the survival of the
population of eastern Congo because that area was cut off from
the rest of the DR.C. Thus, had cross-border trade with Kenya,
Uganda, Rwanda and Burundi not taken place, eastern Congo
would have had no marketfor its goods and no source of goods
for its population. As has been authoritatively established by
many internationa.1bodies, includingthe United Nationsand the
United States Agency for International Development (USAID),
eastern Congo kias been "inaccessible due to decades of
collapsed infrastructure." (UR Annex 74.) Indeed, without
roads or railway, the only major artery for transport between
western Congo and eastern Congo would have been the Congo
River, but thiswas blocked offfrom the delivery of commercial
andfor humanitarian goods and services from August 1998,
when the rebellion against the DRC Government commenced,
until July 2002.~~The UN Secretary-Generalpoints out thatthe
12barges which set off from Kinshasa to Lisala and Bumba in
12 July 2002 were the first commercial exchange between
Kinshasa and eastern Congo in nearly four years.93 In the
92SeeThe Tenth Report of the Secretary-Generalon the UnitedNations
OrganizationMission in the DemocraticRepublic of the Congo (DRCR,
Annex 35, paras. 1920);The EleventhReport of the Secretary-Generalon
the UnitedNations OiiganizationMission in the DemocraticRepublic of the
Congo (S/20021621),para. 19;The Twelfth Report of the Secretary-General
on the UnitedNations OrganizationMission in the DemocraticRepublic of
the Congo (SI200211180),paras.&337.
93
Ibid(.heTwelfth :Report),para. 36.circumstances, and in the absence of any other alternative
means of transportation, eastern Congo was only accessible
through routes transiting eastward toward Ugandaand Rwanda
or by flights fromthesetwo tat tes.^^
443. The DRC's suggestionthat tradebetween easternCongo
and Uganda should have beenprohibitedignores the interestsof
those within the DRC's borders. The DRC's allegations are
even more disingenuousbecause eastern Congo has historically
been linked to the world through these eastern routes, not as a
result of the current conflict in the DRC but due to
geographical, socio-economic andlegal imperatives including
various regional arrangements such as the Common Market for
Eastern and Southern Africa (COMESA) and the Northern
Corridor Arrangement. Mr. PatrickMazimpaka, SpecialEnvoy
of the Presidentof Rwanda, madethis pointduring the Security
Councildebateon the First UNPanel Report:
Secondly, the Panel extended the definition
of natural resources and other forms of
wealth to include services,transport, finance
and other movements of goods and people.
In Our region, these are regulated by
multinational agreements, which include
those between Our three countries - the
DRC, Burundi and Rwanda - and the
conventionsof the Economic Communityof
the Great Lakes Countries (CEPLG),as well
as regional arrangements, such as those
under the Common Market for Eastern and
Southern Africa (COMESA) and the
" The Government of Rwanda stated the same point in its official response
to the FirUN Panel Report:
The eastern part of the Congo has beencut off in terms of
international air communication. In the face of this situation, the
Congolese goods and people have found it necessary to transit
through Kigali, for there are no international flights to Goma and
Bukavu. Provisions ofese services are not prohibited by any
existing international laws.
(UR Annex 52,p.8.) Northern Corridor Arrangement; these
conform also to World Trade Organization
converitions.
Ignoririg these historical ties among the
peoples of the region is prejudicial to the
socio-economic well-being of the people of
the region, and more particularly those of
the DRC cut off from Kinshasa, and who
have been historically linked to the world
throug:h eastern routes through Rwanda,
Burundi and Uganda.
(UR Annex 53 (AMMeeting), p. 9.)
444. It follows, therefore, that the trade between Ugandaand
eastern Congo that the DRC seeks to criminalise is in fact the
subject of various international agreements binding Uganda to
facilitate that ve,ry trade. Two such agreements are the
COMESA Agreement (referred to above), and the agreement
establishing the Transit Transport Coordination Authority for
the Northern Corridor (TTCA), which was signed in 1985, and
which, among lother things, obligates Uganda, Rwanda,
Burundi, the DRCI,and Kenya to ensure a smooth and efficient
flow of traffic between Bujumbura, Kigali, eastern Congo,
Kampala and theport of Mombasa in Kenya. As Hon. Mbabazi
told the UN Security Council, the prime objectives of the
agreement are to ensure freedom of transit among the signatory
States, to wit Kenya, Uganda, Rwanda, Burundi, and the DRC,
to safeguard the right of access to and from the sea for
landlocked countries, to promote the development and regional
integration of transport facilities and services, and to facilitate
inter-statetrade:
1 also wish to point out that there is an
agreement establishing what is called the
Transit:Transport Authority for the Northern
Corridor, which was signed in 1985 by
Uganda, Rwanda, Burundi, the Democratic
Republic of the Congo, and Kenya. The
mandate for this Transit Transport Authority is to ensure efficient flow of traffic between
Bujumbura,Kigali,the Democratic Republic
of the Congo, Kampala,Nairobiand the port
of Mombasa [Kenya] -- in other words, a
hinterland Mombasa port. A number of
infrastructure projects under this Authority
are supported by the World Bank, the
European Union, and otherdonor agencies.
At the fourteenth ministerial meeting of this
Northern Corridor, in Kampala on 23
November 200 1, Uganda reiterated its
commitment to ensuring smooth traffic
flows through Ugandato strengthenregional
initiatives for infrastructure development
and to harmonize customs documentation
and procedures alongthat corridor.
(URAnnex 73 (AM Meeting),p. 13.)
445. Indeed, in most cases the trade between eastern Congo
and Uganda involved traders bringing merchandise from eastern
Congo into Uganda, wherethey bought Ugandan goods for sale
in eastern Congo. (See supra paras. 432-40, 443-44.) The UN
Panel itself noted the dependence of eastern Congo on
consumer goods from Uganda. (DRCR Annex 69, para. 64.)
However, contrary to theinterpretationof the UN Panel and the
DRC Government (DRCR, para. 4.25), the presence of
Ugandan consumer goods in these areas is simply an indication
of trade between Uganda and eastern Congo, and invites no
inferenceof illegality.
446. In fact, long before the current conflict Ugandan and
Congolese business people had started flying the variety of
consumer goods manufactured in Uganda into eastern Congo,
due to the difficulties in communications betweenthis part of
the DRC and Kinshasa, in western Congo. This fact was
testified to before the Porter Commission by Hon. Kamanda
Bataringaya, theUgandanAmbassador to the DRC:Dr. Bataringaya:
Yes. Oh, this promotion oftrade you see as
1 told you, as commercial diplomacy, now,
when I went there, there was trade, trying to
normalizing it this way,as we had Ugandan
Airline:flying up to Kinshasa, flying up to
Goma, Ugandans were able to take the
merchandise up to Kinshasa, that's meat,
fish, eggs, which were really by then selling,
they were using Uganda Airline, even up to
Goma. And those even these lorries, some
of thern, Ourpeople who are in West Nile,
they were using those which used to go to
Bunia, the market, and these also the
Congolese, even Beni, bring their goods also
to Bwi:ra, Kasese. So, that's how we were
trying itoencourage that trade.
Lead Counsel:
So, the trade was basically, in terms of, as
we shall Saythings likeeggs, fish, meat.
Dr.Bataringaya:
Eggs, fish, meat, soft drinks like Coca-Cola,
Pepsi-Cola, Beers. 1 would see them even
exchanging in bringing Pilsner in Uganda,
Our Bell in Congo. Those are the things,
they are.
And how were most of those things getting
to the DRC?
Dr.Bataringaya:
They were, just, Sayin Kinshasa, they were
usingthe Uganda Airlines,by the way it was
and Goma also. And these near-by places were using lorries, and other small vehicles.
And sometimes, boats, for example on Lake
Albert.
(UR Annex 6 1,pp. 19-20.)
447. Uganda has repeatedly stated that her policy on eastern
Congo was to facilitate trade between bona fide Ugandan and
Congolese business people so as to ensure that the local
populations in eastern Congo were able to obtain the material
necessities of life. The radio broadcast of President Museveni
himself (UR Annex 3l), the officia1responses by Uganda to the
Panel Reports (see, e.g., UR Annex 55, p. 20), and the
testimony of Minister of State for Defence Hon. Stephen
Kavuma made under oath to the Porter Commission confirm
thisofficial policy. Mr. Kavuma, citing a 1999 press release
articulating the policy, testified that the only trade that Uganda
encouraged as a matter of policy was that aimed at ameliorating
the humanitarian crisis in eastern Congo by ensuring that
necessary consumer goods reached the region:
Mr. Kavuma:
But [the Ministry ofl Defence, as an
institution, did not authorize the carrying of
gold, carrying of coltan, carrying of
diamonds, sijuyi nini, to.. .. We were
concerned with the carrying of supplies of
consumer goods.
LeadCounsel:
Now your statement, or the statement
attributed to you there, shows that you were
actually allowing Congolese businessmen to
fly on flights which probably had military
hardware (or logistics as you cal1 it) to the
Congo. Now 1 am assuming that wherever
that plane landed there would have beenUPDF troops there to off-load the logistics.
Am 1correct on that?
Mr.Kavuma:
Yes. UPDF wouldbe represented, yes.
LeadCounsel:
Now that would mean you therefore, have
businessmen interacting with soldiers
(because they are appearing at the same
airport and they are moving together)?
Do yoil not think that this would encourage
the soldiers to try and engage in business, or
the businessmen to take advantage of the
soldiers and do business --or in furthering
their businesses?
Mr. Kavuma:
Yeah. 1 think this has to be looked at.. .,
really the situation obtaining in the Congo.
Here is a population, a huge population,
lacking consumer goods. You are faced
with saying: no consumer goods on Our
aircrafts which are on rnilitary missions.
The risk you are posing to the population, 1
think, outweighs the risk you are talking
about. 1would be more interested in seeing
that if I get somebody who is infringing the
regulations 1 would deal with them in
accordance with the law; but 1would not put
at risk the lives of men, women and children
in tens of thousands.
My Lord, it is a difficult situation where
transport means are very, very scarce and
difficult to corne by, where you have millions of people who need consumer
goods for livelihood, and then you have to
take a decision as to whether to allow them
to access those goods running a risk of
operating not in the usually-normal way. Or
you Say,look these are the instructions: this
and this should happen, this and this should
not happen, and that was done by
Government; then you put inplace people to
administer the scheme, who are supposed to
follow the law and the instructions. And 1
think, in those circumstances, one would
have done what one would have been
expected to do in those very difficult
circumstances. This is al1 1am saying, My
Lord....
My Lord, 1do not know about the details of
whether they were charging this or not but if
1 were faced with a situation where a
Congolese sou1 is to die because of hunger
for fear that one sack of coffee couldind its
way at the airbase, 1would save the life and
sou1of the Congolese person and leave the
rest to be handled in accordance with the
law about who trades illegally. 1would not
put the life of an African over and above
coffee, beans, tobacco; 1 think it would be
inhumane on my part!
(UR Annex 59,Part C, pp. 20-21,23-24.)
448. As Mr. Kavuma explained, Uganda pursued trade as a
policy to ease the humanitarian crisis in eastern Congo by
making essential consumer goods available to the residents of
thatarea. (3) Trade in eastern Congo was licenced by
the DRC Government and by the
competent authorities
449. In fact, companies that were trading in eastern Congo
were fully licenced to operate, in many cases by both the DRC
Government as well as the rebel organisations in effective
control of, and with administrative authority for, the region. It
is hypocritical fo.rthe DRC to complain that the trading was
illegal without acknowledging her continued role in such
trading.
450. The DARl\-Forest case described above is evidence of
the DRC Government's continued rolein the exploitation of
natural resources .inthe eastern Congo. Although the UN Panel
Report presentedDARA-Forest as an appalling case of "illegal"
exploitation, it was shown that DARA-Forest was, infact, fully
licencedby the DKCGovernment. (Supra,paras. 390-93.)
451. The Second UN Panel Report (DRCRAnnex 70) notes
that the operations in Kisangani --which is rebel-controlled --
of a Companycalled Arslanian Freres had the blessing of the
DRC Government :
[Arslanian] has been traveling to Kisangani
to opeinlypurchase diarnonds mined in the
rebel-held areas surrounding the town
[Kisangani]. Nevertheless, one of the
owners of the Company, Raffi Arslanian,
was approached in writing in 2001 by the
Government's Ministerof Mines to invest in
a multi-million-dollar project aimed at re-
organizing the State-owned diamond-
producing enterpriseMIBA.
(DRCR Annex 70,para. 74.)
452. The fact that the DRC Government was involved in
licensing companies engaged in the exploitation of natural
resources in eastern Congo directly calls into question the
credibility of the 17irstUN Panel Report--which was oblivious
to this easily ascextainablefact. It also calls into question thecredibility of the DRC Government --which attacks trade in
eastern Congo,knowing fullwell that it has continuedto licence
trade in that region.
453. In addition, insofar as the DRC is alleging that any
business activity in eastern Congo was impermissible if not
licenced by the DRC Government, the argument would be
foreclosed by the Lusaka Agreement. (See supra, paras. 204-
210.) The trade now attackedby the DRC came within thearea
of competence of the RCD or MLC as the responsible authority
under the Lusaka Agreement, and beforethe Agreement as the
de facto government. If economic activity had to wait for a
licence or approval from the Government of the DRC, the
natural economic activity of eastern Congo would have been
strangled and the population of that area would have suffered
even more. The DRC cannot challenge economic activity in
eastern Congo simply because such activity was not licenced
by, or paying taxesto, the Governmentof the DRC.
454. It should, in fact, be noted thatthe AFDL, President
Kabila's own rebel organisation, prior to the time it came to
power in Kinshasa, itself tookthe position that a rebel group
which exercises effective control overterritory has the authority
to grant concessions and licence operations in the territory
which it controls. Thus, a source cited authoritatively by the
Reply describes the AFDL as entering US$l billion worth of
contracts granting concessionsin areasit controlled:
Le 16 avril 1997 ..flanqué de ses avocats,
de ses expertsfinanciers et du colonel belge
Willy Mallants...l'homme d'afSaires
américano-mauricienJean-Raymond Boulle
signe avec le 'ministre' des Finances de
1'ADFL Mawa Nanga Muwapanga et avec
le 'ministre'des Mines Mutombo un contrat
prévoyant un investissement total de 1
milliard de dollars. Les accords immédiats
portent sur trois sites: un projet de 200
millions de dollars à Kolwezi, pour
l'extraction du cuivre et du cobalt, un
investissement de 30 millions de dollars destink à 1'extractiondu cobalt à partir de
très riches déchetsdes mines de cuivre du
Kipushi, et un investissement de 550
millions de dollars, à Kipushi également,
dans une usinede traitement du zinc.9"
(Colette Braecknian, L'Enjeu congolais: L'Afrique centrale
aprèsMobutu, Fayard (Paris), 1999,p. 156.)
455.
The signatories to the agreements made clear their view
that the authority to sign such agreements rested in the rebels
who controlled the territory (then, the AFDL) rather than the
Government of President Mobutu which was then in power in
Kinshasa:
'[L'AFDL] exerce le contrôle de fait sur le
territoire concerné. Cet accord, conclu
dans la transparence, est pat-jkitementlégal,
mêmesi les autorités actuellesne sont pas
encore au pouvoir à Kinshasa.' Le
'ministre' des Finances ajoute: 'Quand à
ceux qui veulent signer un accord
aujourd'hui à Kinshasa, je leur demande
seulement comment ils feront pour venir
l'appliquer ici auShaba.'96
95"On 16April 1997..with his lawyers, his financial experts, and Belgian
Colonel Willy Mallants...the American-Mauritian businessman-
Raymond Boulle signed with the AFDL 'Minister' of Finance,Mawa Nanga
Mawapanga, and with the 'Minister' of Mutombo Mines, atract
[totaling$1billion. 'The immediate agreements referred tothree sites: a
$200 million project in Kolwezi to extract copper and $300lmillion
investment to extract cobalt from the very rich waste of Kipushi copper
mines, and a $550 million investment, also in Kipushi, into a zinc treatment
plant."
96 "'[The AFDL] exercises effective control over the territory in question.
This agreement, conclludedtransparently,erfectly legal, even if the
current authorities are not yet in power in Kinshasa.' The 'Minister' of
Finance added: 'With regard to those who wish to sign an agreement today
in Kinshasa,only ask how they will enforce it here in the Shaba."'(Ibid., p. 157.1~~
G. The SpecitïcAllegationsAgainst Uganda Are
ContradictedBv Sworn TestimonvAnd
DocumentarvEvidence
456. As discussed above, the UN Panel Reports, and in
particular the First UN Panel Report, the cornerstone of the
DRC's allegations, are based on unsworn accusations by
unidentified persons. The so-called "sources" were not subject
to examination which could verify whether their statements
were willfully false, the product of inaccurate recollections, the
repetition of what a source may have heard but did not
personally witness, or (if ever) the truthful and accurate
recounting of persona1knowledge. The UN Panels' "sources"
were not even identified, critical information which could have
provided evidence of whether or not they were biased and had
reason to seek to attribute blame to Uganda or, indeed, any
other country.
457. Furthermore, no transcript of the questioning of the
"sources" was provided, which could reveal whether the sources
were induced to give their statements by suggestive or leading
questions, something which cannot be dismissed out-of-hand
given the UN Panels' preconceived (and manifestly inaccurate)
notions that Ugandan troops had previously operated in eastern
Congo, and that the top UPDF officials were simply waiting for
a pretext to reenter and to exploit theDRC's natural resources.
Finally, of course, none of the so-called sources on whom the
UN Panels relied were sworn. In light of the use of these
statements to impugn Uganda and other States, it is incredible
that the UN Panels were so careless in their efforts to ensure the
reliability of the statements they were collecting.
97At least six companies, which theTUNrPanel Report states should be
"blacklisted", signed contracts with Mr. Kabila and the AFDL before the
former took over power in Kinshasa. (Braeckman,a, pp. 156-1.)
These include AMFI, Anglo-American PLC, AshantiGoldfields, Banro
Corporation, Lundin Croup, and Tenke Mining Corporation, al1of which
signed agreements that the DRC Government presumably deems valid.
(Ibid.)458. Not only are the UN Panel Reports inaccurate, but also
the DRC often cites those Reports inaccurately. The DRC, for
example, asserts that "officers of the UPDF systematically
looted" the areas which they occupied, stating that this was
"confirmed" by the First UN Panel Report. (DRCR, para.
4.14.) That Report, however, even if it is to be credited, merely
states that "Burundian, Rwandan, Ugandan andlor RCD
soldiers" were erigaged in looting. (Ibid.; emphasis added.)
The quoted language does not assign responsibility toUgandan
soldiers, making no effort to draw a distinction between
Burundian, Rwandan, Ugandan, and RCD soldiers, but rather
lumping them al1together without a considered assignment of
responsibility. Moreover, the very paragraph ofthe UN Panel
Report quoted by the DRC later goes on to state that there was
unlawful removalof products "by Rwandan or Ugandan armies
and their local RCD allies." (DRCR Annex 69, para. 32;
emphasis added.) Again, there was no reasoned assignment of
responsibility.
(1) So-called instances of "unlawful
appropriations" by "Ugandan troops"
are demonstrablyfalse
459. The Reply offers three "particular" allegedincidents in
support of its assertionsthat "Ugandantroops were responsible"
for "unlawful appropriations." (DRCR,para. 4.15.) The failure
of the DRC to make out any case against Uganda is
demonstrated by the fact that each of these three purported
incidents utterly fails to establish any responsibility on the part
of Ugandantroops. Either the allegationsof the First UN Panel
Report are refuted by the facts or that Report fails to attribute
unlawful activity to Ugandan troops in the first place.
460. The DRC, for example, parrots claims of the First UN
Panel Report that Gen. Kazini confiscated al1the timber stocks
of a logging company called La Forestière.(DRCR Annex 69,
para. 34.) In an attempt to support this allegation against Gen.
Kazini, reference was made to some hearsay information from
an unidentified third-party source that Gen. Kazini was
"reportedly seen in the area at least twice during the period
when the looting occurred and temporarily established hisheadquarters in the area." (Ibid.) Accusing Gen. Kazini of
looting on the basis of such information, even if accurate, is an
obvious non sequitur, which puts in high relief the bias and
carelessnessof the First UNPanel Report.
461. There is, moreover, documentary evidence which
establishes the incompetence of the UN Panel's work. A
memorandum recorded the official handover of the La
Forestière factory and timber stock to the ownersof the
company. That handover memorandum, signed by UPDF
officers and representatives of the company, States
unequivocally:
This day 02 of June 2000, the UPDF
Administration has handed over the factory
premises and property which we occupied
during the presence of the factory Manager
(La Forestiere) in 1998. Al1the buildings,
property have been found intact the way
they were handed over to UPDF during the
time of occupation. We (UPDF) together
with the Factory Manager (Administration)
inspected everything and no complaints
were raised.
(UR Annex 40.) The handover memorandum categorically
confirms that the company had no complaints, of looting or
otherwise, against theUPDF.
462. As another example, the DRC claims that UPDF troops
under the direction of Gen. Kazini "absconded" withstockpiles
of timber from Amex Bois Company in late August 1998. It
was, however, establishedby sworn testimonythat Amex Bois
was transmitting stockpiles of timber through Uganda shortly
after the looting was alleged to have taken place, further
discrediting the allegations of the DRC and the First UNPanel
Report. (UR Annex 68, pp. 23-24.)
463. As the third purportedexample of the allegedculpability
of Ugandan troops, the DRC, relying again on the First UN
Panel Report, asserts that in January 1999 "General Kaziniorganised a large operation for the confiscation of coffee
beans." (DRCR,para. 4.15.) Even if the UN Panel Report were
taken at face value --which it obviously cannot be given its
manifest deficiericies -- it does not support the DRC's
allegations. The DRC has again chosen to read what she wants
into her source documents, and does so only by ignoring their
actualcontent.
464. Although t.hereis a sentence in paragraph 35of the First
UN Panel Report which states that "Jean-Pierre Bemba and
Gen. Kazini orgatiiseda large operation for the confiscation of
coffee beans," the mention ofGen. Kazini is unsupported bythe
so-called evidence which the Report cites next. Indeed, there is
no further mention of Gen. Kazini in the discussion of the
purported evidence. Rather, irnmediately after the sentence
mentioning Gen. Kazini, the next sentence makes clear that Mr.
Bemba (of the MLC, not the UPDF) allegedly organised the
operation: "Mr. .Bembainitiated, encouraged and perpetuated
such practices in the Province." (DRCR Annex 69, para. 35;
emphasis added.) Further, Mr. Bemba was alleged to have
written a letter eiicouraging the practice, and it is later again
emphasised that Mr. Bemba was the person who allegedly
confiscated the coffee beans: "The massive looting reached
such levels that, in one instance, Mr. Bemba seized 200 tons of
coffee beans froni the SCIBE Company,which was owned by
his father, Saolona Bemba. The matter remains unresolved in
Court." (Ibi dm;phasis added.) In short,although the FirstUN
Panel Report alleges that Gen. Kazini somehow "organised" an
operation to confiscate coffee beans, it offers not even hearsay
or double-hearsay evidenceto supportthat charge.
TheDRCpersistently relies on
(2)
unsupported hearsay and inaccurately
cites her supporting sources
465. The DRC habitually relies on vague generalities and
unfounded allegationsthat have no probative value.Thus, it is
alleged that ProfeissorWamba dia Wamba of the RCDIK stated
to a Danish newspaper that "several high-ranking Ugandan
officers organise looting." (DRCR, para. 4.16.) The DRC's
resort to this neurspaper report exemplifies the profound andpervasive inadequacies of the DRC's presentation. The
newspaper report is hearsay stacked upon hearsay -- a
newspaper reporter saying what Prof. Wamba dia Wamba
supposedly said -- with no basis for determining whether Prof.
Wamba dia Wamba was accurately quoted by the reporter, or,
even if he was, whether Prof. Wamba dia Wamba had any basis
for his statement. Moreover, the statement is particularly
useless as evidence, for it gives no specifics as to the identities
of the Ugandan officers who purportedly "organised" any
looting, nor does it give any specifics of the "looting" that
purportedly occurred. Reliance on such second- and third-hand,
unverified, and unsworn publications manifestly reveals the
inadequacies which permeate the DRC's accusations against
Uganda. (See the Nicaragua case, I.C.J. Reports 1984, p. 40,
para. 63 ("press information should not be treated in itself as
evidence forjudicial purposes.").)
466. In alleging that the UPDF and Ugandan officials looted
minera1resources (DRCR, para. 4.18), the DRC again misstates
the First UN Panel Report -- further distorting an account which
was already substantially distorted and subject to attack on its
own merits. With regard to alleged mining of gold, the UN
Panel -- yet again without identification of any evidentiary basis
-- stated that it "appears that" local commanders tolerated
mining by soldiers, which the Panel "qualifie[d] ..as passive
complicity." (DRCR Annex 69, para. 57.) Of course, in
acknowledging that something only "appear[ed]" to be the case,
the UN Panel effectively acknowledged that it possessed no
evidence. Although the DRC cites the First UN Panel Report as
a source of factual evidence, that Report by its own terms
("appears that") establishes that it contains nothing more than
supposition and speculation. in any event, these unverified and
unsupported claims should be viewed against the sworn
testimony of officials with firsthand knowledge of the situation,
who unanimously testified that the UPDF had strict policies
against mining and trading by soldiers that it rigorously
enf~rced.~~
" See. e.g., the sworn testimony of Maj. Gen. Katumba Wamala, who
headed UPDF operations in tDRC between August 2000 and April2001467. Similarly, while the DRC treats allegations that young
men were sent "to extract [gold]for the benefit of Ugandans" as
established fact (IIRCR, para. 4.18), the First UN Panel Report
actually provides no basis for imputing liability to Uganda. In
fact, it says quit(: the opposite. The Report states: "Local
Congolese have been miningfor years for their own benefit."
(DRCR Annex 613,para. 58.) It then states that MLC leader
Jean-Pierre Bemba recruited the young men and that the
"Ugandan allies" (again, not Uganda) "trained the recruits."
Thus, even if the factual allegations of the First UN Panel
Report were true, which cannot be said with any semblance of
assurance given the many errors that permeate the Report,
nothing in the Report supports any conclusion that any such
miningwas being done "for the benefit of Ugandans."
468. The same lack of an evidentiary basis infects the First
UN Panel's, and consequently the DRC's, allegations
concerning gold mining in the Kilo-Moto mineral district.
(DRCR, para. 4.18.) The Panels' allegations depend on an
unidentified "key informant" as well as unidentified "other
sources" (DRCR Annex 69, para. 59), as well as on unspecified
"evidence" and facts that were "reportedly" true. (DRCR
Annex 70, para. 128.) Again, there is no basis for concluding
that any "informant," "source" or "report" was truthful,
unbiased, or had any actual knowledge at al1of the allegations
being made.
(UR Annex 63, pp.14-15)and of Hon. Stephen Kavuma, Minister of State
for Defenceduring th,eperiod, whose testimony under oath on this point was
that:
[Olur soldiers, our army, was under very strict instructions
not to engage in business or exploitation of resources from
the DRC. The Commander-in-Chief had givenhese
instructions, very firm instructions, right at the outset of
the UPDF's ,poingto Congo and those instructions were
being adhered to; and the Government and the army were
ready, willing and able to take very, verytion
against anybody who woulbe found infringing those
instructions.
(UR Annex 59, PartH,p. 6.)469. The patent bias and incredibility of the UN Panels is
evidenced by the fact that the Second UN Panel Report persists
in the allegations that UPDF forces continued to be involved in
artisanal gold mining in the Kilo-Moto area at the time of that
Report, October/November 2001 (DRDC Annex 70, para. 28)
despite the fact that the UPDF had long been withdrawn from
that area. Uganda had withdrawn her troops from the Isiro area,
where the Kilo-Moto mines are, in MayIJune 2001, and had
officially informed the UN Security Council of that withdrawal
in a letter dated 8 May 2001. (UR Annex 57.)
470. Moreover, the factual allegations of the UN Panels
regarding diamond mining in the northern Kisangani area --
even if true -- show the culpability of Rwandan forces rather
than those of Uganda. Thus, in referring to the Kisangani area,
the Second UN Panel Report states that "[tlhe high combined
taxes imposed by the RCD-Goma rebel group and RPA
ultimately resulted in diamonds mined in this area being
redirected to Kampala, where lower tax rates prevail." (DRCR
Annex 70, para. 44; emphasis added.) These allegations show
that it was Rwanda that was operating within the Kisangani area
of the DRC and imposing taxes in that area, with the diamond
miners making their own independent business decision to send
diamonds to Kampala. Even if the Panels' allegations were, for
the sake of argument, taken as true, there is no suggestion of
any coercion or exploitation by Uganda.
47 1. Finally, the DRC cites page 19of Annex 75 to her Reply
to support the assertion that "Ugandan troops were exploiting
up to 800 Km2 of forest." (DRCR, para. 4.18.) Page 19 of
Annex 75 does not refer to "Ugandan troops," or to
"exploiting," or to "800 Km2of forest." If the DRC meant to
refer to page 18, which does refer to the UPDF, the document
makes no assertion, much less provide any evidence, that the
UPDF was exploiting 800 Km2 of forest. Even if page 18 of
Annex 75 were credited, al1 that it refers to is the supposed
"location" or "position" oftroops, and the "existence" of natural
resources, with no reference at al1 to "exploitation" of those
resources. (See DRCR Annex 75, p. 18.)472. Thus, throughout her Reply, the DRC relies on UN
Panel Reports that in turn depend on unsubstantiated
"information." But, as demonstrated above, the DRC goes even
further and compounds the errors of the Panel Reports. Thus,
the DRC takes statements in the Panel Reports which are
qualified or ambiguous, or which actually impute blame to
actors other than Uganda, and in her zeal to vilify Uganda
inaccurately cites those sources as unequivocal allegations
against Uganda.
(3) TheDRC's allegations about airflights
are either unsupported or are
demonstrably wrong
473. The DRC asserts that military andprivate flights were
used to "acheminer vers les aéro orts ougandais le produit du
pillage organisépar 1'UF'DF."99 (DRCR, para. 4.21 .) The
Reply again relies on the First UN PanelReport, the very terms
of which ("[a]ccording to some sources," "[tlhe Panel has
indications") effectively concede that the Panel was basing its
allegations against Uganda on hearsay and on speculation,
rather than on credible evidence. (DRCRAnnex 69, para. 74.)
And, where the DRC purported to rely on sources other than the
First UN Panel Report, the source documents were not quoted
correct1y.
474. Thus, the DRC assertedthat "le nombre de vols d'avions
privés entre l'aéroport militaire d'Entebbe et le Congo se
monte à 5300 pour la période 1998-2001"~~~ (DRCR para.
4.22), but the source document referred to the number of
passengers, not the number of flights. (See DRCR Annex 14,
The Monitor, 15 ,4ugust 2001.) The DRC's inaccurate citation
of the source document carelessly (or intentionally) greatly
exaggerated the amount of transitbetween Entebbe and Congo.
99"bringbackto Uganda producttshat hadbeenillegallyexploitedfrornthe
DRCby UPDFofficers."
lm "the numbeof flightsof privateplanes betweentheEntebbernilitary air
baseandCongoroseto5,300 intheperiod1998-2001."475. In any event, even the First UN Panel Report, foral1its
inaccuracies and proclivity to cast blame on Uganda,
acknowledges that the flights were simply the continuation of
the "old transportation network thatexisted prior to the 1998
war" and that the "patternof transport remains similartoday" to
"these pre-existing networks and structures." (DRCR Annex
69, para. 31) As further set forth at length above (supra, paras.
432-48), the continuation of the historical modesof transport
between eastern Congo and Uganda, including transportby air,
was critical to the survivalof the populationsof eastern Congo
who werecut off fromthe restof the DRCby the war.
The "economicdata" on whichtheDRC
(4)
reliesproves nothing
476. The DRC relies on purported "economic data" to
support her claims of exploitation. (DRCR, paras. 4.23-4.24.)
As the World Bank andother international financial institutions
have recognised, Uganda has a long record of sustained
economic performance and fiscal stability because of its sound
economic policies and good governance. (SeeUR Annex 55,
Table 1, p. 33 for a tabulation of Uganda's real GDP Growth
rates between fiscal years 1994195and 199912000.) This has
attracted foreigndirect investment, developmental aid and debt
rescheduling by multinational bodies, al1 of which have
contributed to the dynamism of Uganda's economy. Asalready
explained, Ugandahas her owndepositsof minerals and thereis
established and legitimatecross-border trade between Uganda
and eastern Congo, including activity by producers and
companies licenced by the DRC Government. (Supra, paras.
393,449-55.) There is no basisfor the DRC and the UN Panels
to read Uganda's legitimate economic growth as evidence of
illegalexploitation of resources in the DRC.
477. Moreover, any so-called "discrepancies" between
Uganda's mineral production and her exports can readily be
explained by statistical, regulatory and market factors.
478. A statistical factor contributes to the so-called
discrepancy between production andexport figures. The UN
Panel relied on data from the Ministry of Energy and Minera1Development to indicate levels of export. The Ministry's
figures, however, are calculated from export permits issued by
the Ministry. As such, they indicate the amounts of gold the
trader-applicants applied for authorisation to export from
Uganda, and not the figuresthat they actually exported. In fact,
the arnount actually exported is almost always far lower than
the amount indicated in export permits, so that use of data from
the Ministry exaggerates the amount of gold actually exported.
Data from the Ciistoms Department more accurately indicates
the amounts of gold actually exported, a numberthat fluctuated
between 1995, when it was US$26.6M, and 1999,when it was
only marginally higher at US$28.3M. (UR Annex 55, pp. 37,
51-52, 61.)
479. With respect to regulatory factors, in 1991 Uganda
enacted The External Trade Act of 1991 and the Ministry of
Tourism, Trade and Industry promulgated theExporters and
Importer' Guide, both of which embraced liberalisation as a
trade policy. (UR Annex 55, pp. 51-52; see also supra, para.
428-29.) With the liberalisation, royalty charges for exports
were removed. As a result, therewas no longer an incentive for
exporters to underreport the volume of exported minerals.
During the period after 1991, gold exploration within Uganda
has expanded. (UR Annex 110, p. 22.) At the same time,
however, the reported Ugandan production figures have been
artificially understated because many small-scale producers
who are unlicenced do not report their productionfor fear that
they might be prcbsecutedfor operating without licences. These
producers, however, sel1their unreported output to the licenced
traders who export. The traders then report these products as
exports, making the export figures larger than the production
figures. (See URAnnex 55, p. 51-52.)
480. The effect of the new regulations governing the
production and export of gold and other rnineralswas explained
by the former Minister of State for Defence, Hon. Stephen
Kavuma,in sworn testimony beforethe Porter Commission:
Lead Counsel:
Now thatparagraph alleges that,"...the Government of Uganda and that of
Rwanda were aware of the situation on the
ground, includirzgthe looting of stocksfrom
a number of factories. ln some cases level
of production of mineral resources would
have alerted any Government, such as tlzose
of goldfor Uganda and coltanfor Rwanda,
of this."
Mr.Kavuma:
Again these are sources to the Panel. 1can
only say that at no time the Government of
Uganda ever participated or even supported
the looting of what is being talked about
here. 1 was not aware of any massive
looting of stocks as being alleged here.
The level of production,1 want to say what 1
said a little earlier: 1 think the policies of
liberalization and allowing people to operate
accounts - dollar accounts - with maximum
retention of whatever they get (100%
retention) helped in unearthing trade that
had been going on in this commodity, but
under cover for fear of Government
discovering them. Of course people have
been trading in this gold, both from within
the borders of Uganda and, for centuries,
there has been cross-border trade by small,
small peasants who go and get alluvial gold
and the rest of it.
Now, these figures, 1 think a lot of it has
(and 1am confident it is the case), has to be
explained by the economic policies which
were able to stimulate trade and give
confidence to the traders that they can
openly transact their business without any
fear from Government. So 1 do not find
anything strange about this. But these small things being harvested by
peasants in terms of alluvial gold, if
somebody got an ounce and found a way of
getting rid of it; 1 do not think that is
anything strange. After all, their ancestors
have been doingthis forcenturies.
(UR Annex 59, Part E,pp. 3-4.)
48 1. Thus, prior to regulatory liberalisation, production and
export figures would have been relatively equivalent, but after
liberalisation there was a gap between production and export
figures because export traders no longer had reason to avoid
reporting the actual level of their activity. By contrast, many
producers, especially smaller ones, continued their custom of
not reportingtheir production.
482. Notably, the First UN Panel Report confirms that any
"discrepancy" between production and exports cannot
confidentlybe attributedto exploitation of thDRC's resources.
Although the Panel at one point says that economic data
provided "confirmation" of illegal exploitation in the Congo
(DRCR Annex 69, Heading "F"), the actual text of the Report
states only that the gap between production and export for
Uganda "could" originate from exploitation, and further
acknowledges that Uganda's export figures for gold have
"consistently7'been greater than production. (Ibid., paras. 96,
97.) Indeed, the Panel's own figures show that the so-called
gap between production and export existed even for the period
between 1994 and 1997,long before the UPDF forces went to
Congo. (Ibid., Table 1,p. 20.)
483. With respectto diamond production andexport, the First
UN Panel claims that it developed figures from "several third
party sources," but these data have not been made available to
Uganda to make: an informed response. (DRCR Annex 69,
para. 98.) The DRC, in turn, simply relies on the
unsubstantiated allegations of the First UN Panel Report
without proffering any evidence on the issue. In any event, theFirst UNPanel Report itself explains why so-called third-party
sources almost certainly presented incorrect figures which
cannot be relied on as evidence of actual Ugandan diamond
exports. The Report statesthat:
However, [diamond export information] is
not well captured in the statisticsbecause of
the looseregulations governing the free zone
areas. These regulations permit diamonds
originating inany country to be repackaged,
and then to be sold from any country as
diamonds froma country oforiginthat is not
necessarily the one mentioned in the
statistics.
(Ibid., para. 99; emphasis added.)
484. The First UN Panel Report notes the increase in
Uganda's exports of niobium (coltan)in the late 1990s. (DRCR
Annex 69, para. 101 .)With the new useof coltan in ce11phones
in the 1990s, the prices and demand for the mineral shot up.
These higher prices made the production of this mineral
profitable, explaining the increasingexports of the minera1in
the 1990s. The increased demand forcoltan coincided with the
Congo conflict but has nothing to do with it.Post hoc does not
prove propter hoc.
485. Moreover, the meretransit of goods from easternCongo
through Uganda does not demonstrate any form of looting or
illegal exploitation on the part of Uganda. As explained at
length above, eastern Congo was unable to import or export
goods through Kinshasabecause road and railway infrastructure
was non-existent while river access was precluded by the war
between August 1998 andJuly 2002, whereas transit continued
to be possible through Uganda, as has long been the case.
Prohibitingsuch transit would have strangledthe populations of
eastern Congo, and Uganda properly didnot take such action.
(Supra, paras. 442-48.) (5) Allegations of Uganda'spurported
"control" of business in eastern Congo
prove nothing, other than thefact that
Ugandadid not "loot " that area
486. The DRC makes the sweeping assertion that "[l']armée
ougandaise a assis un véritable contrôlesur l'ensemble du
système économique et commercial des zones occupées, en
violation flagrante de la souveraineté de la République
Démocratiquedu ong go."'^ ('RCR, para. 4.25.) The DRC
deserves credit for her florid rhetoric, but not for the care with
which she has read her source documents. The only "fact"
which is provided in any of the three UN Panel Reports on
which theDRC relies is that "the Panel of Experts noted that the
consumer goods and other merchandise found in Gbadolite and
Bunia originated mostly from Uganda." (Ibid., quoting DRCR
Annex 69, para. 64; see also ibid., para. 4.26 (fuel, beer, salt,
sugar, soap,clothing).) Indeed, the fact that the First UN Panel
observed consumer goods and other merchandise which
originated in Uganda demonstrates that the alleged "looting"
was not occurring. The presence of Ugandan consumer goods
proves the existence of bilateral cross-border trade which
provided needed and wanted goods for the benefit of the
population of the so-called "occupied area~."'~~If the DRC's
allegations of "looting" were true, there would have been no
trade. Goods would have flowed in only one direction, toward
Uganda, with nothing returningto easternCongo.
487. The DRC: also alleges the "imposition on traders of
prices and conditions fixed by Ugandan forces." (DRCR, para.
4.26.) The source for this is, again, the discredited First UN
Panel Report. In any event, the Report provides no factual
'O'"[tlhe Ugandan arrny hasexertedreal control on the entire commercial
and trade systernof the occupieds, thus glaringly violating the
sovereigntyof the Democraticpublic of Congo."
102As demonstrated inChapter II (see supra, paras. 170-10;see-
also supra, para. 407), Uganda did not "occupy" the DRC. To the contrary,
eastern and northeasternCongo wereer the defacto administrative
control of the MLC and the RCD in their respectivezones of operation. The
Congolese rebelde facto governmental structureswcrerecognised by the
Lusaka Agreement in July 1999. (Ibid.)support --even of a hearsay nature -- for the allegation that
"Ugandan forces" imposed "prices and conditions" on traders.
Rather, the Report states that one farmer, again unidentified,
purportedly statedthat he was dependenton "coffee dealers" for
the supply of bags imposedby the "coffee collectors (buyers),"
and that failure to use these bags resulted in a reduction (of
unstated amount) in the coffee price. There is no mention of
any price fixing, or involvement by "Ugandan forces" inthese
transactions, or even of Ugandan (as opposed to Congolese or
other) coffee dealers. (DRCRAnnex 69,para. 65.)
488. Similarly, the DRC asserts that "Ugandan forces"
appointed loyalists to civil administrative positions. Only one
example is given, the confirmation of Mrs. Adele Lotsove's
assumption of the office of Vice Governor of Ituri Province in
1999. (Ibid.) However, the UN Panel Report on which the
DRC relies states that Mrs. Lotsove was "a Congolese whohad
already been employed by the Mobutu and Kabila
adininistrations." (DRCR Annex 69, para. 71 ; emphasis
added.) Thus, the UN Panel Report by its own terms
demonstrates that Ugandan forces, rather than hand-picking a
compliant loyalist, confirmed the appointment of an
experienced local administrator without regard to the fact that
she had served previous Congolese Governments that were
hostile to Uganda.
489. Moreover, contrary to what theDRC and the First UN
Panel Report claim, Mrs. Lotsove testified under oath that she
was initially recruited for the office of Vice Governor by the
Rwandan army, not the ~~~~.''"urther, Brigadier Gen.
103Mrs. Lotsove testified before the Porter Commission, under cross-
examination, that it was Rwandan officers who, after consulting widely
among the local population, approached her and asked her totake up the
position of Vice-Governor. She was asked to take upthis position
of her previous experience and qualifications:
Miss Adele [Lotsove]Mugisa:
So we had to find people to talk to, we had to îïnd
political authorities to take charge. And the group
which took over said that; this time we would like to
have a woman leader. So they went around the
people in Kisangani and made the necessaryKazini testified that he later facilitated Mrs. Lotsove's
consultations, so the people gave in a number of
names and finally they said that the wonian who can
do that here in Kisangani is myself. And then 1was
contacted by Rwandan officers. Several times they
refused to send cars to fetch me where 1 was, and
then finiilly they got me to work for them. 1owent
to see anofficer and 1discussed with that officer and
then 1 responded to al1 the questions he asked me.
And he told me that he wanted me to be in the
administrativeteam which he wanted to set up. After
examining this question / after looking at it 1 said;
why shouldn't 1take this position. And 1told them
that 1w;intto be one of the Vice Governors, they then
told me that you will be the first Vice Governor.
That is to say that there were two gentlemen there
was the governor then me as the first Vice Governor
and another vice governor. And we were presented
to the people of Kisangani in September 1998 and we
begun to work.
Asst.LeadCounsel:
But the people who approached you earlier to which
organizationdid they belong?
MissAdeleMugisa:
They were Rwandan army officers. We began to
work and in February.. .[o]f the next year i.e. 1999
we were sworn in, inGoma.
Justice Porter:
At that time September 1998 where was the UPDF?
MissAdeleMugisa:
When the war reached Kisangani the first army men
we saw inKisangani were Rwandans. The Ugandans
were also there but they were a bit far in theest at
about 17 km away along the international airport of
Bangoka. But it is not Ugandans who contacted me,
1was contacted by Rwandan officers....
(UR Annex 78, pp. 4-5.)assumption of office in order to forestall a dangerous political
and administrative vacuumin the region. (UR Annex 60, Part
B, p. 12.) As the terms of the letter sent by Brigadier Gen.
Kazini to Mrs. Lotsove make clear, he expected her to take
charge of theeconomy of the region for the benefit of the local
population, with revenues to be directed to developmentof the
infrastructure in the region. Moreover, contrary to theclaims
that the UPDF wanted to establish a puppet administration
under her, the letter expressly provided that theUPDF wouldbe
involved onlyin the provision of security for her, and then only
for a maximumperiod of two months:
Security
...On assumption of your new office, with
the help of UPDF in both Bunia and Isiro,
embarkon the following:
Establish the numberof Congolesemilitary
and civilpolice forces with aview toputting
inplace welfare programmesto cater for
them;
Have them re-organizedandput incoherent
formations;
Tackletheir welfare problemsi.e. food,
medicine, uniforms,etc using limited
revenue collections;
Subjectthem to a minimumpoliticisation
programmeand have them deployed to
maintainlaw and order in the area. They
mustbe educatedto know thatthe gun is for
protectingpeople andtheir property -after al1
it was bought by the people.
Economy
The economy of the DRC is in a total mess.
This is due to its gross mismanagementby
the leadership referred to above. The vitaleconomic sectors i.e. agriculture, trade and
commerce, mining, banking, fishing,
transport and communications, power
generation, timber production, industrial
processing were highjacked by corrupt
leaders to further their selfish interests at the
expense of national development. To this
end, the DRC is one of the countries with
the highest mortality rates, illiteracy at
around. 75%, very poor living conditions,
high unemployment rates, hyper-inflation,
etc. This state of affairs cannot produce a
healthypopulation.
On assumption of your office, try to do the
following:
Reorganise the revenue collection system -
startingwith border points and town towns.
The system shouldfocus on accountability;
Revenue collectedmustbe injected in
security, social and economic infrastructures;
Reorganise the miningsector with powers of
concession. Discusswith prospective mining
firms with a view to raising revenue,
providing employment,and provision of
other social servicesaimed at improving the
quality of life in the area;
Revitalise the agricultural sectorwith
emphasis on improving production;
Create a suitableenvironmentfor investment,
and cross-border trade.
By a copy of this letter, Lt. Col. Sula
Semakula in Isiro and Capt. Kyakabale in
Bunia, are directed to work out a comprehensive securityarrangement foryou
using UPDF soldiers at the beginning. The
Congolese military and civil police, after
reorganisation, shouldthen relieve UPDF of
these interna1security tasks. Reorganisation
must not exceed twomonths.
(UR Annex35, p. 3.)
490. The DRC cites no other specificexamples of Ugandan
intervention in local administration in eastern Congo. In fact,
Brigadier Gen. Kazini's actions with respectto Mrs. Lotsove
were unique, and took place in a context where local
government had broken down and the public order had
collapsed. Nevertheless, for his interference in local
administration contrary to the strict orders of the Ugandan
Government, Brigadier Gen.Kazini was sternly reprimanded by
his Commander in Chief, President Museveni. (See UR Annex
65, Part C, pp. 23-24;UR Annex 68,pp. 26-27.)
491. Further allegations by the DRC that Mrs. Lotsove
transferred (unspecified as to when or how) some "funds"
(unspecified in nature or amount) to some "Ugandan
authorities" (unidentified)are based on "information gathered"
(unspecified as to nature or source). (DRCR, para. 4.27.) The
Reply succeeds only in adding another baseless slur to the
DRC'sendless list.
492. Allegations that unnamed "Ugandan authorities"
"embezzl[ed] taxes" and "madea lot of money" (DRCR, para.
4.28) areequally unsupported. In fact, the documentson which
the DRC relies actually contradict any assertion that"Ugandan
authorities" wereembezzling taxes. The so-called Protocol of
Agreement between the RCD and the MLC of 30'"July 1999
(DRCR Annex79) makes clear that any tax collections were to
be directed to an Economic Commission which was to "watch
over the application of the principal of equitable sharing of the
public resources throughout theentire liberated territ(ibid.,
Art. 5) in order to, inter alia, "re-establish the public money
network throughout theentire liberated region" and "oversee
the adherenceto the financial and budgetarylaw"(ibid A.r. 6),as well as to provide for "the payment for bank services" and
for the "day-to-clay expenses of the local administration."
(Ibid., Art. 7.) There is not a single word, or even a suggestion,
that taxes were "embezzled" by "Ugandan authorities." As
recognised and ratified in the Lusaka Agreement, which
predated by several weeks, the Protocol on which the DRC
relies, the rebels were the defacto government in the areas they
controlled, and the responsibility of administration necessarily
brought them the right to levy taxes.
Allegations of trade inprotected animal
(6) species are withoutmerit
493. The DRCi also states that the "involvement of the
UPDF" in thehunting of protected species "cannot be doubted."
This was supposedly "confirmed" by "fact[s]" that, yet again,
appear to be concocted. (DRCR,para. 4.32.) The DRC simply
parrots allegations in the First UN Panel Report that"in August
2000, UPDF Colonel Mugeni and a crew of his soldiers were
discovered with 800 kg of elephant tusks in their car near
Garamba Park" and that the "Government of Uganda received
detailed notification of this incident." (DRCR Annex 69, para.
62.) As is its practice, the First UN Panel Report provides no
source for the allegations, and also fails to indicate who
supposedly "discovered" Colonel Mugeni with a load of tusks.
The alleged incident was denied by Colonel Mugeni under oath
and, even if one chooses not to credit Colonel Mugeni, an
officer of the Uganda Wildlife Authority who would have
received the purported "detailed notification"of the incident,
had it occurred, testified under oath that the Authority had
received no such report. (UR Annex68, pp. 39-40.)
494. The same is tme of the allegation that"a consignment of
tusks" was impounded by the RCD-ML and later "sent to
Kampala, following a lot of pressure from Uganda." (DRCR,
para. 4.32.) The First UN Panel Report supplies no details of
the source of these allegations, nor does it even suggest from
whom the tusks were impounded, or who exerted "pressure."
Officers from the Uganda Wildlife Authority, who would have
been informed of this alleged incident (if it had actuallyoccurred), testified under oath that they had receivedno such
information. (UR Annex68, p. 40.)
H. There1sNo EvidenceThatUganda FailedTo
Act AgainstIllegalActivitv
495. The DRC would hold the Ugandan Government
responsible based on the allegation that the "principaux
protagonists ougandais du pillage des ressources
naturelles..n 'ontfuit 1'objetd'aucune sarzctionni autre mesure
visant à mettre fin à leurs activités illégalesen RDC.""~
(DRCR, para. 4.36.) The flaws in this argument are obvious.
The DRC has failed to establish that "looting" by the
"protagonists" was provedto the Ugandan Government, which
then failed to act. In fact, the DRC has failedto prove even
now that the named "protagonists" were involved in the
"looting" of natural resources in thefirstplace.
496. As discussed above, allegations of "looting" by Brig.
Gen. Kazini are unsupported by any evidence and are, in fact,
contradicted by theevidence. (Supra, paras. 460-64.) Insofar
as the Porter Commission is alleged to have "expressed
surprise" at the "weak punishment" received by Brig. Gen.
Kazini (DRCR,para. 4.36), the DRC ignores the reason whyhe
was punished. Brig. Gen. Kazini wasnot punished because he
was found tohave engaged in "looting" as assertedby the DRC,
for that was not the case, but rather because he "created a new
Province in defiance of organised opposition, leaving yet more
disgruntledCongolese, and in defiance of the express command
of his Commander in Chief." (DRCR, para. 4.36.) His
punishment wasthus proportionateto the offense.
497. Similarly, the allegationsof "looting" directed against
General Salim Saleh and his wife Jovia Akandwanaho, which
rested primarily on theiralleged involvement in the "Victoria
Group" and "Trinity Company," are contradicted by the
evidence. (Supra, paras. 403-05.) Finally, the allegationof
'O"main Ugandan protagonists in the looting of the natura. resources..
were not punished in any way nor were any measures taken to end their
illegal activities inC.""looting" against the fourth so-called "protagonist," Colonel
Kahinda Otafiire, is actually rebutted by the report on which the
DRC relies. According to that report, Colonel Otafiire
purchased timber, paying in money and iron sheets. (DRCR
Annex 14, The ~Wonitor,29 November 2001.) A bilateral
agreement with a trader, which is al1that occurred, according to
the report relied on by the DRC, is not "looting." Whether or
not Colonel Otafiire violated orders not to become involved in
commercial activities in Congo is, again, a matter for Colonel
Otafiire and his superiors to resolve. The allegations against
Colonel Otafiire clonot even remotely constitute an incident of
"looting."
498. The DRC's efforts to find President Museveni
responsible for the alleged "illegal exploitation of the DRC's
wealth" are simply slurs devoid of evidentiary support,
(DRCR, para. 4.37.) The DRC relies on the discredited First
UN Panel Report, which offers no basis for any allegations
against President Museveni. (See ibid.) The only specific
allegations mentioning President Museveni were that he failed
to act after receiving a report of embezzlement by Mr.Mbusa
Nyamwisi and by Mr. Tibasima, after being "informed" of
exploitation by the MLC and RCD-ML, and after receiving a
report denouncing the "collusion between Trinity Group
and...the impact on the collection of customs duties." (Ibid.)
In addition, it is alleged that General Salim Saleh and his wife,
shareholders in "Victoria" and "Trinity," managed to "get
away" with crimlnal activities, though this allegation does not
mention PresidentMuseveni. (Ibid.)
499. As set forth above, the UN Panel's allegations with
respect to Victoria and Trinity are contradicted by the evidence
of record. (Supra, paras. 400-05.) If the DRC cannot even now
muster contrary evidence, it is ludicrous to assert that some
form of punishinent should have been meted out against
General Saleh and his wife.
500. The "reports" and "information" supposedly received by
President Museveni with regard to Messrs. Nyamwisi and
Tibasima and the MCL and RCD-ML are not identified. In
addition, even if such "reports" were made to PresidentMuseveni, therewould have been nojurisdiction for him to take
action against Congolese nationals and unspecified persons in
Congolese rebel groups --even if the allegations made against
those persons weretme. The Lusaka Agreement confirmedthat
the MLC and RCD Congolese rebel organisations, and not
Uganda and certainlynot President Museveni, were responsible
for administrative control of the areas of the DRC under their
militarycontrol. The Lusaka Agreementof July 1999had been
in place for months by the time the supposed "reports" were
made to President Museveni (December 1999 and February
2000). (DRCR,para. 4.37.)
501. The DRC also implies that President Museveni,
knowing that Ugandan soldiers were engaging in commercial
activity in the DRC, sent a radio message forbidding such
activity in ambiguous terms that were interpreted by Ugandan
soldiers as permission to do business in collaboration with
Ugandan companies. The truth of the matter, however, is that
the Presidential message was given following unverified
allegationsthat some unnamed Ugandan officials were engaged
in business in the eastern Congo. (See,e.g., URAnnex 26.) By
acting preemptively in this manner, Uganda wentfar beyond
any duty she may have had.
502. The actual text of President Museveni's message
provides the best evidence that he was unequivocal instating
that no commercial activity by Ugandan troops or officials
wouldbe tolerated:
1. Ensure that there isMO officer or man of
Our forces in Congo who engages in
business.
2. Also report to me any other public
servant whether currentlybased in Congo or
not who triesto engage in business.
3. However, other Ugandan businessmen
(who are not soldiers or public servants,
including al1 politicians or their families),
should, given the fluid security situation be assisted if necessary, to do business there in
order to alleviate the acute needs of the
population and also to establish links for the
future.
(UR Annex 31, emphasis added.) President Museveni made
clear that his purpose was to elirninateany feeling that Ugandan
forces were in the eastern Congo in order to loot rather than to
defend Uganda's securityinterests. (Ibid.)
503. Contrary to the DRC7s rhetoric, there was nothing
"arnbiguous" about President Museveni's instructions. They
were crystal clear in their prohibition of business activities by
Ugandan soldiers and public servants. Commercial activity by
privatebusinesspeople was permitted in order to make essential
consumer goods accessible to the local population, averting an
escalation of the humanitarian crisis in eastern Congo. (Ibid;
see alsosupra, paras.442-48.)
1. The DRCFailsTo ResuscitateThe First
UnitedNationsPanelReportAnd To Impuen
The Porter Commission
504. The DRC, recognising that her allegations of
"exploitation" rest almost exclusively on the unsupported
assertionsof the First UN Panel Report, attemptsunsuccessfully
to breathe life into that Report. The DRC does not -- because
she cannot -- respond to specific criticisms of the Report
(including Security Council criticisms that the Report was
lacking in evidentiary support). Rather than dealing
substantively with the failures of the Report, the DRC engages
in name calling, denigratingcriticisms of the report as "insults"
and "libel" (DKCR, para. 4.44) and ineffectually trying to
validate the report through the Report's own self-serving praise
of itself. (Ibid., para. 4.45.) What is inescapable, however, is
that the First UN Panel Report on which the DRC7scase rests
was deemed inadequate by a plethora of States --including the
DRC herself -- who emphasised the failure of the Report to
distinguishbetween reliableevidence and unreliable hearsay.505. Even the Second UN Panel Report recognised the
inadequacies of the First Report, and acknowledged that those
inadequacies persisted: "The Panel tried its best to address the
complaints and reactions as a consequence of the [first]
report...."(Supra, para. 346.) In the end, the DRC's arguments
are reduced to a whimper: the DRC contends that it is
"obvious" that a Statement by the President of the Security
Council "was aimed at Uganda" despite the fact that there was
no mention of Uganda (or, indeed, of any other State). (DRCR,
para. 4.49;see DRCR Annex71 .)
506. The DRC also asserts that the interim report of the
Porter Commission either "confîrm[ed]" or failed to rebut the
allegations of the First UN Panel Report. (DRCR, para. 4.50-
4.58.) Only a few examples are given, and these directly
contradictthe DRC's assertions.
507. It is said that the Porter Commission found that "coffee
owned by Jean-Pierre Bemba"was on two occasions carried on
military aircraft. (Ibid., para. 4.53.) The DRC leaps from this
finding to the broad assertion that"I'UPDF transportait par
avions militaires le produit du pillage des resour~es"'~'
(DRCR, para. 4.53), despite the fact that there is no mentionof
any other goods being transported,the fact that Mr. Bembawas
not an officer in the UPDF, and the fact that there is no
evidence,or even suggestion, that thecoffee was "looted."
508. The DRC next tries to explain away the total lack of
evidence to support allegations that Ugandan authorities
embezzled taxes (indeed, as noted above, the documents which
the DRC cited actually contradicted the DRC's allegations).
(Supra, para. 492.) The DRC does this by resorting to blatant
speculation, hypothesising about "la possibilitéde l'existence
de transferts defonds aux ofliciers de I'UPDFprésents surle
terrain ou de versements aux autorités ougandaises qui
auraient été faits de manière ~landestine."'~~ (DRCR, para.
4.54; emphasis added.) The DRC, yet again, ignores the
105"theUPDF used totransport the looted resources aboard military planes"
106
"thpossibilitof funds being remitted to the local UPDF officers and to
the Ugandan authorities in a clandestine mariner."distinction between evidence and rhetoric,just as she ignores
the distinction between fact and speculation.
509. The DRC argues against the conclusion of the Porter
Commission that the "Victoria Group" does not exist, arguing
that the absence of any recordmight be due to the fact that the
"Ugandan registry of companies was very poorly managed."
(DRCR, para. 4.55.) The salient fact is that there actually is no
"Victoria Croup," and while there is an entity named "Victoria
Diamond," the articles of organisation of that Company
contradict the assertions of the UN Panels regarding the
company's ownership. (Supra, para. 401.) Further, Victoria
Diamond has licences to engage in the business of trading
diamonds in the DRC issued by the Ministry of Finance. (Ibid.)
Yet again, in her final gasping effort to attack the Porter
Commission, the -DRCignores the distinction betweenevidence
and speculation.
J. The DRC FailsTo UnderstandThe
GovernineLaw
510. In approaching the legal principles allegedly violatedby
Uganda, the Respondent State has a problem of general
character. This stems from the fact that Uganda denies the
allegations and, further, considers that the Claimant State has
not satisfied the applicable standardof proof.
511. It must follow that there is not much value in a detailed
examination by Uganda of the quality and relevance of the legal
principles setforth by the DRC in paragraphs 4.59to 4.84 of the
Reply.
512. As a matter of principle Uganda does not necessarily
reject al1the propositions of law offered by the DRC, though
Uganda does reject the mode in which the DRC seeks to apply
the legal principles.
513. In any event Uganda reserves her position on the
relevance and accuracy of the legal principles invoked by the
DRC. It is clear that the exposition of legal principles contains
manifest confusions and anomalies. The invocation of the
obligation of due diligence in relation to the alleged facts is anexample of confusion. (DRCR,paras. 4.71-4.81 .) The concept
of due diligence relates to the position of aliens and their
property withinthe territory of a respondent State. It is wholly
inapplicable tothe circumstancesprevailing in the DRC.
514. Even if one applied the normal standards of human
rights, in accordance with general internationallaw, Uganda's
conduct was entirely compatiblewith those standards. Uganda,
on her part, has made al1efforts to redress the alleged wrongs,
once known, including appointing two Commissions to
determinethe truthfulnessof the allegations. 'O7
515. With respect to paragraph 4.38 of the Reply, Uganda
does not accept that there was an armed conflict for the
purposesof the Fourth Geneva Convention.
516. With respect to paragraph 4.84of the Reply, Uganda is
bound to point out thatthese claims based upon the Chicago
Convention on International Civil Aviation were not included in
the Application submittedby the DRC dated 23 June 1999.The
DRC has not sought permission toamend the Application and
the right to amend the Application was not reserved. In any
case, the claims in question would not necessarily satisfythe
criteria of jurisdiction, set forth in the Nicaragua case. (I.C.J.
Reports 1984,p. 426, para. 80; see also the Application of the
Genocide Convention (Further Provisional Measures) case,
ibid., 1993,p. 338,para. 28.)
517. In the light of the contents of the Reply, Ugandafinds it
necessary to repeat the conclusion reached in the Counter-
Mernorial that the DRC hasnot produced any reliableevidence
of the responsibilityof Ugandafor the alleged looting of natural
resources. (UCM, 144-52.) In this connection Uganda
confirms the substance ofChapters VI1and VI11of the Counter-
Mernorialrelating to the majorinadequaciesof the Mernorial in
the matters of proof. These inadequacies are particularly
107Apart from the Porter Commissionof Judicial Inquiry, an independent
judicial tribunal which was estahlished2001,uUganda had earlier
appointed a Joint Ministerial Committee to consider similar allegations and
to devise policy and guidelines promptly after receipt of the first allegations.marked in the sphere of the allegations concerning natural
resources. (UCM,paras. 178-83.)
518. Uganda reiterates the pervasive deficiencies in the
methods of the UN Panels, and in particular the methods
employed in the creation of the First UN Panel Report on which
DRC primarilyrelies. (Supra, paras. 399-405.)
519. By way of conclusion Uganda reaffirmsher position that
the DRC has not satisfied the standard of proof required in
establishing state responsibility in relation to the claims
concerning natural resources. As the Court expressed the
position in the Corfu Channel case (Merits) in reaction to the
second alternative argument of the United Kingdom to the
effect that the minefield was laid with the connivance of the
Albanian Governrnent:
A charge of such exceptionalgravity against
a State would require a degree of certainty
that has not been reached here.
(I.C.J. Reports, 1949,p. 17.)
520. Having examined the main question, which is the
inadequacy of the proof of imputability offered by the DRC in
both her pleadings, it is necessary to turn to a subsidiary aspect
of the legal arguments presented in the Reply. This is the
assertion that Uganda was "in control" of large areas of the
DRC, even wheri the de facto administering authorities were
Congolese insurgents. (DRCR, paras. 4.74-4.81 .) The DRC
avoids any legalc:lassificationof the nature of this "control."
521. In response Uganda maintains that her presence in the
DRC was governed by the purposes of self-defence, insofar as
such a presence was not justified by the consent of the DRC.
Such purposes did not involve a so-called occupation regime of
any character. (Sec supra, Ch. II.) In this context Uganda
denies that the principles stated by the Court in the Namibia
Advisory Opinion are applicable in the circumstances, (DRCR,
paras. 4.74-4.75.) In saying this, Uganda does not seek to deny
that the principlesare valid in appropriatecontexts.522. Uganda accepts that on specific occasions she assisted
the Congolese rebelsin resolving local problems. In suchcases,
the applicableprinciple would appear tobe contained in Article
9 of the Articles adopted by the InternationalLaw Commission
in 2001:
Article 9. Conduct carried out in the
absence or defuult of theofSicialauthorities
The conduct of a person or group of persons
shall be consideredas an act of a State under
international law if the person or group of
persons is in fact exercising elements of the
governmental authority in the absence or
default of the official authorities and in
circumstancessuch as to cal1for the exercise
of those elements of authority. CHAPTERV
RESPONSETOTHEALLEGATIONSOFHUMAN
RIGHTS VIOLATIONS
523. This Chapter responds to the factual allegations in
Chapter V of the IIRC's Reply concerning allegedhuman rights
violations.
A. The DRCProceedsFromTheErroneous
Premise That UgandaWasAnOccupving
StateAnd FailsToSatisf~HerBurdenOf
Proof.
(1) Uganda wasnot an "occupying State "
524. The DRCI alleges that Uganda is "internationally
responsible" for human rights violations in eastern Congo
because Uganda is purportedly an "occupying State," and
therefore "responsible," since "le droit international fait peser
un certain nombre d'obligations sur les Etats occupants, que
leur imposent de veiller la protection des populations civiles
dans les zones soumises à leur f ont rôle."'^^ (DRCR, para.
5.05.) With this argument the DRC hopes to avoid having to
prove -- because she is unable to do so -- that any specific
human rights violations werein fact committed by Ugandan
troops.
525. As already demonstrated in Chapter II, the premise that
Uganda is responsible for human rights violations because she
is an "occupying State"is manifestly erroneous in light of both
the situation on the ground and the Lusaka Agreement. (Supra,
paras. 170-74, 198, 201, 204-210; see also para. 407.) To
surnmarise, Ugandan forces maintained a limited presence in
eastern Congo only in the border regions where anti-Uganda
insurgents operated and at strategic airfields within striking
distance of Uganda. The troops were too few and too spread
out to maintain an "occupation" andneither administrated nor
'O8"international law imposes a number of obligations on occupying States,
such as the protection of civilians in the areas under their control."sought to administer the areas in which they operated. Local
administration in these areas was provided by the MLC and
RCD Congolese rebel organisations which constituteddefacto
governments. These were recognised as such in the Lusaka
Agreement. Because Uganda is not an "occupying State," she
cannot be held responsible for events in the DRC simplyon that
basis, without evidence that troops or other persons under her
control actuallycommitted specific unlawful acts.
526. The DRC's false premise that Uganda "occupied"
eastern Congo has led the DRC to avoid offering proof that
UPDF troops were actually responsible for the various alleged
wrongs. The DRC'smistakenpremise has also causedthe DRC
to attribute alleged violations of human rights standards to
Uganda even when there was admittedly no factual evidence
suggestinga link between theUPDF and the alleged violations.
(See DRCR, para. 5.05: ("...mêmesi les exactions en cause ne
sontpas lefait direct des troupes ougandaises,la responsabilité
de 1'Ougandane s'entrouvepas moins engagée,dèslors que le
droit internationalfait peser un certain nombre d'obligations
sur les Etats occupants.. ..")emphasisadded.)'09
(2) TheDRC hus not met her burdenof
pro05
527. The DRC implicitly acknowledges that she has not met
her burden of proof, contending that she has been hampered in
"apporter des preuves des exactions commises par les troupes
ougundaises ou avec leur complicité, au moins passive.""0
(DRCR, para. 5.03.) This last sentence unwittinglycrystallises
the two principal inadequacies of the Reply. First, the DRC
explicitly admits her failure of proof. Second, the DRC
reiterates the erroneous belief that guilt by virtueof "passive
complicity" can be imposed on Uganda as an "occupying
State."
109,..even though the acts in question were not directly conlmitted by the
Ugundun troops, Uganda is internationallyresponsible, since international
law imposes a number of obligations on occupyingStates..
110"presenting proof of the violent acts committed by the Ugandan troops or
with their passive complicity."528. As discussed in more detail below, the DRC thus
reduces herself to making sweeping allegations in a most
offhand manner, unsupported and unsupportable by any
evidence. Where support is supposedly offered, the DRC's
purported "proof' is either internally inconsistent or unreliable
and unverifiable hearsay (and double hearsay) from third-party
sources that remain unidentified in almost al1cases. There are
at least four fundamental problems with the DRC's "proof' of
humanitarian violations.
529. First, many of the publications on which the DRC relies
merely assert wrongs done to civilians and do not single out
Uganda as the blameworthy party. At the very least, it is
impossible to determine from the text of these publications
whether it is Ugandan, the Rwandan, the various rebel, or even
the DRC-backeti irregular forces that were allegedly
responsible. The DRC is therefore unjustified in placing the
blame for wrongs on Uganda on the basis of these publications.
530. Second, the publications cited in the Reply were not
compiled for the purpose of imputing responsibility or of
determining culpability for the violation of human rights
standards. These publications, being either human rights reports
or, in one case, an historic Record of Ceasefire, had the
objective of establishing the plight of civilians as a result of
hostilities. The publications were notdesignedto meet the high
standards requiretlto assignculpabilityto a Statewith respect to
violations of international law. When the DRC seeks to assign
blame, she is therefore using the publications out of context.
53 1. Third, given the objectives of these publications and the
qualifications of their researchers, theiauthors never had the
mandate, the resources or the capabilityto authorittitivelyassign
responsibility. Most critically, the authors of the publications
cited throughoutChapters IV and V of the Reply did not possess
relevant regional, military and security expertise to determine
which parties engaged in activities,to investigate and determine
responsibility, or even to distinguish among the parties. The
various forces operating in eastern Congo shared characteristics,
including language and uniforms, which made it impossible for
an inexperienced observer, without access to rnilitaryinformation, todistinguish among them. Thus the publications
cited by the DRC cannot be used to support determinations
regarding alleged violations ofhumanrights standards.
532. Fourth, certain of the publications were produced by
non-governmental organisations that are indisputably partisan
and that pursue a particular political objective ratherthan seek
accurately to establish facts. It is noteworthy that the DRC
bases almostal1her allegations in Chapter V on the publication
produced by ASADHO in collaboration with Agir ensemble
pour les droits de l'homme. (DRCR Annex 93.) This
publicationlacks credibilityfor anumberof reasons.
533. First, ASADHO is a politically motivated, partisan
Congolese organisation that cannot be relied on to give
objective reports or analyses. The political motivation of the
publication is made clear in the preamble where the Chairman
of ASADHOboldly writes:
Il faut obtenir le retrait de l'armée
ougandaise &nt rien nejustifie la présence
en terre congolaise.'"
(Ibid., p. 2.)
534. As can be discerned from this quotation, ASADHO's
primary purpose is convincing the reader that Uganda's
presence in Congo is unjustified in order to exert pressure for
withdrawal. Indeed, the publication is melodramatically
entitled "L'Ouganda sacrifie ILI population civile
coilg~laise."l2
535. There is no evidence at al1 that supports any of the
allegations that ASADHO puts forward, leading to the
inevitableconclusion that responsibility is improperly assigned,
or that accounts are exaggerated or entirely fictitious. Alleged
witnesses are never identified and nothing in the publication
III"A withdrawal of the Ugandan troops, whose presence in Congo cannot
bejustified at all, must be secured."
112
"Uganda 1sSacrificing Congolese Civilians."suggests how the information relied on was obtained orhow its
contents can be verified. Indeed, in its preface the publication
invitesdoubts aboutits own authenticity:
Notre propos n'est pas de faire Œuvre
d'historiens même si chaque événement
signaléet chaque nom citéont fait l'objet
des vérifications indispensables. Notre
volontéest de lanc113un cri d'alerte et un
appel au secours.
(Ibid.)
536. Despite the claim that the facts have been subjected to
b'~erification~,"there is no account of how such purported
verification (if any) was carried out, or by whom. Given the
self-admitted political motivation of the publication, any so-
called verification process is suspect at best. In any event, the
publication undercuts its own utility as a basis for assigning
legally relevant culpability by conceding that its sole purpose
was not to "write a history book," but rather to "sound a
warning" and "appeal for help." The authors of this publication
have effectively conceded that the publication cannot meet the
legal standardsfor establishingculpability.
537. The context of the ASADHO publication psovides
further reason to doubt its accuracy. The publication describes
unknown UPDF soldiers supposedly running amok and
engaging in every imaginable civil and criminal wrong, as
though UPDF soldiers controlled al1 aspects of life in the
region. The publication neglects the fact that at no point was
the UPDF in control or occupation of any part of Congo,
including those parts covered in the ASADHO publication. As
already demonstrated in Chapter II of this Reply, the notion of
the UPDF's "occupation" of eastern Congo is a myth
propagated by the DRC. The truth is that Uganda's presence in
the DRC was limited -- tactically, geographically and
Il3"We do not intend to write a history book even though each incident and
name has been subjeçtedto the necessary verification. We would simply
like to sound a warning and make an appeal for help."numerically -- and was designed onlyto secure key strategic
sites to address Uganda's legitimate security concerns. (See
supra, paras. 170-74.) In al1 the regions covered by the
ASADHO publication, atal1times, the civil administration was
under the leadership of either MLC or RCD forces, who were,
as well, in charge of the maintenance of publicorder in those
areas. (Seesupra, paras. 198, 201,204-10.) Thus, because the
wrongs alleged in the ASADHO publication are of a sort that
presuppose actual controlof the affected area, it is most likely
that any alleged wrongs werecommitted by forces other than
the UPDF.
538. Last but not least, the allegationsof particular incidents
in the ASADHO publication (and in the Reply) commonly
attribute wrongs to "an unidentified Ugandan soldier," a
"Ugandan soldier," or "Ugandan troops," without any
identification of theoldiers or evidence to explain how those
reporting knew that the alleged perpetrators were, in fact,
Ugandan soldiers. Moreover,despite the detail with which the
purported wrongs are recounted, there is no indication of the
UPDF unit whichwas supposedlyinvolved,the size of the unit,
the number of soldiers, the ranksof the soldiers, or any other
identifying information which could verify the unfounded
allegations that the actors were Ugandan troops, ratherthan
other parties. ASADHO and the DRC simply invite the Court
to believe allegations of massacres and other human rights
violations without anycredibleverification.
539. The Grand-Nord Civil Society message (DRCR Annex
95) is, like theASADHO publication, a partisan rather than
objective document. Grand-Nord startsits message by stating
that its purpose is to show "la vision de la population du
GRAND NORD à l'égard du Gouvernement ougandais""4
(ibid., p.1) and then sets out the erroneous premise that Uganda
intervenedin Congo in 1996:
Un regard rétrospectif révèle que
l'Ouganda est intervenu à deux reprises en
""'theway the peopleof GRANDNORDperceivethe Governmentof
Uganda" République Démocratique du Congo. Une
premièrefois en 1996avec la guerre dite de
libération menép ear Z'AFDL,avec à la tête,
Monsieur Laurent Désiré KABILA qui
aboutit au départde MOBUTU et à la prise
dupouvoirpar KABILA le 17mai 1997."'
(Ibid.)
540. As has already been demonstrated in Chapter II of this
Rejoinder, Uganda did not participate in the so-called First
Congo War. (Supra, paras. 115, 161-66;see also paras. 41 5-
16.) To the extent that an erroneous premise provides the lens
through which Grand-Nord interprets political events in eastern
Congo, its whole approach is tainted. In any event, the opening
words of the Grand-Nord publication clearly indicate that what
follows is not an objective human rights report but a political
document.
541. There are obvious connections between the two
organisations on whose publications the DRC primarily relies to
make its case, ASADHO and Grand-Nord. For example,
Kambere KayitanibyaGodefroid, the Chairman of ASADHO, is
also a member and signatory of the Grand-Nord publication.
(SeeDRCR Annex 96, p. 7.)
542. The following passage in the European Congo Network
(REC) publication (DRCR Annex 98) likewise illustrates the
flippant, unprofessionalnature of the publications on which the
DRC relies:
Visiblement, les atermoiements de Bemba
vis-à-vis des négotiations inter-congolaises
et dudésengagementdes lignesdefront sont
liés à la recherche de son enrichissement
rapide et de la cupiditéde ses parrains,
-
Il5"Abackward review reveals that Uganda has intervened twice in the
affairs of the Democratic Republic of Congo. First, ing a war
called a liberationled by the AFDL, with Mr. Laurent DesiréKabila as
the Chairman and wtiich led to the overthrow of Mobutu and the former
taking power on May 17th 1997." ofliciers ougandais, et de la politique du
ventre de ses ministres opportunistesdont le
vagabondage agace lepeuple.f l6
(Ibid.,p. 8.)
543. Partisan statements and ad hominem attacks such as this
indicate that the so-calledhumanrights reportsare not objective
studies based on sound research. Rather,these publications are
unmistakably political documents by groups with evident
political agendas.
544. Uganda respectfullydirects the Court's attention to the
volumeSilence, OnMeurt: Temoignages(Quiet, We Are Dying:
Testimonies) recently published by MédecinsSans Frontières
(Doctors Without Borders) ("MSF). Unlike the publications
on which the DRC relies, which offer only unattributed
accusations, this volume contains first-hand accounts of
individuals who are clearly identified, and whose stories can
therefore be verifiedor tested. The critical point is that not one
of those first-hand testimonies implicated Uganda,or, indeed,
even mentioned Uganda or Ugandan forces. Most of the
brutality (war crimes and crimes against humanity) referredto
in the book were committedby the FAC, the Interahamwe, and
the RCD, with witnesses generally associating the RCD with
Rwanda. Uganda's purpose is not toemphasise the culpability
of the FAC and the DRC Government, but rather to point out
the complete absence of any allegations against Ugandaor the
UPDF in the MSF's comprehensive compilation of testimonies.
This non-partisan accumulation of first-party testimonies
demonstratesthat the DRC's sources are, in contrast, singularly
biased and unreliable.
Il6"Clearly Bemba's hesitations vis-à-vis theinter-Congolese negotiations
and the disengagement are linked to his quick enrichment, the greed of his
Ugandan offïcer godfathers and the politics of self-aggrandizement practised
by his opportunistic, wandering ministers who annoy the people." B. The DifficultvOf DistineuishingAmonq
VariousArmies AndBelligerents
Researchers, victims andwitnesses of the allegedhuman
545.
rights violations would have readily confused the various
armies operating in eastern Congo, especially the RPA and the
RCD rebel forces, with Ugandan forces. This is due to the
commonalities of uniform, equipment and language of these
armies. Referring to the possibility of this kind of confusion,
the U.S. State Department, in its DRC Country Report on
HumanRightsPracticesfor 1998,statedthat:
Although it often was difficult for victims
and witnesses to distinguish RCD rebel
forces from elements of the Rwandan army
due to their close cooperation and
commonalities of language and equipment,
Rwandan army personnel also reportedly
committed many serious human rights
abuses, including extra-judicial killing,
torture and rape.
(UR Annex 33,p. 3.)
546. The fact that authors would have confused different
forces results frorn the fact that the RPA, theRCD rebels (both
factions) and the UPDF wore virtually identical rnilitary
uniforms, and had similar militarystructures. Members of each
of the various forces also speak to each other in English,
Swahili,or Kinyarwanda. This fact thatmembers of the various
forces wore military uniforms and used military equipment
indistinguishable from each other was attested to by Brig.
Nakabus Lakara, the Acting Chief of Staff of UPDF, under
oath:
19. That the tanks used by the UPDF were
manufactured inthe former SovietUnion.
20. That tanks manufactured in the former
Soviet Union were and are purchased and
used by the armies of many African
countries includingRwanda and Burundi. 21. That the tanks used by the UPDF are
indistinguishablefrom sirnilartanks used by
other armed forcesin the region, and bear no
distinguishing marks.
23. That the uniforms worn by Ugandan
troops deployed in the DRC were
indistinguishablefrom, indeed were in many
cases identical to (and came from the same
factories as), the uniforms worn by other
forceswith apresence inthe DRC, including
those of Rwanda, theRCDand theMLC.
(URAnnex 107.)
547. Attributing wrongs to Ugandan soldiers is particularly
suspect in view of the fact that the UPDF has always
strenuously enforced military discipline. UPDF forces are
subject to a strict Operational Code of Conduct which includes
the followingprovisions:
A. Dealingwith the Public
1. Never abuse, insult, shout at or beat any
memberof the public.
2. Never take anythingin the formof money
or property from any member of the public
not even somebody7s sweet bananas or
sugar-cane on the ground that it is a mere
sugar-cane without paying forthe same.
3.Pay promptly for anything you take in
cash.
4. Never kill any member of the public or
any captured prisoners, as the guns should
only be reserved for armed enemies or
opponents.5. Return anything you borrow from the
public.
B. 11. Offences
--RT 1
The piinishment for the following offences
shall be, the punishment in paragraph 10
(ii)(a) to (e) depending on the circumstances
of each case:
(g) corruption;
(h) embezzlementof Chama [Public]funds;
(i)theft of property;
(j) failure to report known and prescribed
misbehavior of a fellow officer or fighter to
authorities;
(1) abusing, insulting, mistreating of
mwananchi [citizens];
(k) failure to report or hand over gifts from
mwananchi [citizens]
PART III
--
12.The offence of undermining relationship
with the civilianpopulation shallinclude: (a) causing annoyance to the civilian
population;
(b) stealingcivilian property or food;
(c)trespassing on civilian property;
(d) using threatening behavior on the
civilian population;
(e)failing to pay for goods purchased;
(f)obtaining goodsby false pretences.
(UR Annex 2.)
548. The UPDF thus expects its troops to be disciplined, and
in particular places great emphasis on the relationship between
the UPDF and civilian populations. The UPDF's Code of
Conduct was rigorously enforced in eastern Congo, with
soldiers who contravened the Code subject to the UPDF
disciplinaryprocess.' l7
The publications on which the DRCrelies do not permit
549.
any reasoned verification of the accuracy of allegations
attributing actions to "Ugandan soldiers," "the UPDF" or
"Ugandan forces." Because the sources of the accusations are
not identified, and because the actual contents of their
statements are unreported, the basis (if any ever existed) for
attributingactionsto Ugandacannot be verified.
550. The confusion and inability to distinguish among the
various forcesoperating in eastern Congo is compoundedby the
unhelpfulgenerality with whichaccusations aremade. Thefact
that allegations are made without indicating what factors were
117Those punished included Lt. Okumu, Lt. Kisima and Capt. Kyakabale.
(UR Annex 72, p. 27.)t should be noted that Uganda is among the few
African countries that expressly sub-jecttheir armed forces to parliamentary
oversight: ThePDF is, constitutionally, under strict parliamentary
oversightnder Article 208 as read together with article 21995f the
Uganda Constitution.used to identify the allegedtransgressors as members of UPDF,
coupled with the fact that most of the allegations incorrectly
presuppose that the UPDF was carrying out civil administrative
functions, leads to the conclusion that no meaningful efforts
were made to distinguish among the various armies and that the
UPDF was erroneously identified. Because the publications
relied on by the DRC fail to indicate how crucial distinctions
were made among the various forces in the DRC, and because
the UPDFis singularly well-disciplined,it is almost certain that
alleged human rights violations now being blamed on Uganda
were, in fact, committed by other armies that actually occupied
and had police authority in the region.
C. TheVariousAllegationsAgainstUeanda Are
Unsupported AndFalse
(1) Claimsthat Ugandanforces deliberately
killed civilians.
551. Seeking to demonstrate that Ugandan troops murdered
civilians, the DRC elevates the partisan ASADHO publication
with its broad, unfounded allegations against unidentified
"Ugandan troops" to prominence in the text of the Reply, while
consigning other less-biased reports to passing mention in
footnotes. Those footnoted reports, however, make clear how
biased and unreliable the ASADHOpublication actually is. For
example, the DRC says that "facts were also reported" ("ces
faits sont également rapportés")in DRCR Annex 86, a U.S.
State Department Report. (DRCR, para. 5.08, n. 11.)The cited
report, however, made clear that it was not reporting "facts" but
rather only allegations ("There were allegations," "There were
reports," "allegedly") that were not verified as required in this
Court for allegations of such gravity. The cited report also
noted that many"facts" are actually rumors initially spawnedby
propaganda:
Verification of these reports was extremely
difficiilt, particularly those emanating from
remote areas and those affected by active
combat, primarily in eastern DRC.
Independent observers often found access difficult due to hazardous security
conditions and frequent impediments
imposed by authorities. Both pro- and anti-
DRC Government forces used propaganda
disseminated via local media extensively,
including accusations of abuse by opposing
forces, furthercomplicating eforts to obtairz
accurate iïlforinationregardingsuch eveïzts.
(DRCR Annex86, Section 1(a); emphasisadded.)
552. Similarly, the publication of the European Congo
Network (REC) (DRCR Annex 98), also cited as proof by the
DRC (see DRCR, para. 5.10, n.15),recognises the potential for
inaccurate information:
[Le REC] n'accepte aucune responsabilité
sur précision &s sources originales.
-
Devant la nécessité de vous tenir rapidement
informés, le secrétariatprend le parti de
n'être pas toujours en mesure de vérifierces
irlformations, et g saurait être tenu
11 8
responsabled'erreursfactuelles.
(DRCR Annex 98,p. 1;emphasisadded.)
553. The DRC's various "confirming" documents make clear
that ASADHO and others were not presenting accurate
eyewitness accounts, but rather were -- as DRCR Annex 86
suggests (supra, para. 551) -- more likely simply repeating
stories which began as pro-DRC and anti-Uganda propaganda,
and whichthen became part of the mythologyof the area before
being repeated as "fact." Thus, the DRC cites a Congolese
NGO's report of a "massacre" on "8 September 2000 at a
wedding ceremony in "Butuhe village" or "Butuhe, Kikele
village." (DRCR, para. 5.09, citing Solidarité pour la
pronzotion sociale et la paix.) The DRC next states that the
118
"[TheREC] doesrlot acceparirespotisibility for the accuracy of the
origirlal sources. Because of the necessity tokeep you quickly informed, the
secretariat is not always in a position tois informatandis not
therefore responsibleanyfacrual errors.""truth of these various attacks against civilians" including the
purported attack in Butuhe, "was confinned by the testimonies
gathered on the ground by the researchers of Human Rights
Watch." (DRCR, para. 5.09.) The Human Rights Watch
publication, however, stated that the alleged massacre at Butuhe
or the nearby village of Kikere took place in response to an8
November 2000 Mai-Mai ambush, a two-month discrepancy.
(DRCR Annex 83, p. 35 and nn. 154-55.) It thus becomes
apparent that the alleged "human rights violations" do not have
their source in eyewitness accounts, but rather in stories which
may well have begun as propaganda and then became distorted
over time.
554. In addition, the publication on which the DRC reliesfor
the 8 September 2000 version of the "wedding" story (DRCR
Annex 97) mentions Uganda or her troops only once, in
connection with that single purported incident. As discussed
immediately above, that single allegation against Uganda is
contradicted by other publications on which the DRC relies.
(Supra, para. 553.) Moreover, the publication clearly points
awayfrom Uganda when assigning responsibility:
Après analyse et étude descas des violations
des droits de l'homme dans la ville de
Coma, nous avons trouvé quegrand nombre
des violations sont commises soit
directement par les autorités du RCD soit
par des élémentsde son armée. Plusieurs
autres cas des violations des droits de
l'homme pérpétrés par des personnes non
identijtéessefont toujours enregistrés[sic.]
par-ci par-là dans la ville deoma. Cette
situation s'explique plus par lefait que les
militaires restent impayéset aussi par lefait
qu'ils sont incontrôlés. Cela favorise le
trafic d'armes à feu qui est à la base des
plusieurs sortes des violations, nous citons:
le volà mains armées, les tueries, viols,la
soumission à la torture.. La plupart des massacres ont été commis
par I'APR au temps de I'AFDL comme nu
tempsdu RCD. La résponsabilité separtage
entre 1'APR et les autorités politico-
militaires de ce mouvement. Les massacres
commispar les milices seraient aussi à leur
charge parce qu'ils ne fournissent aucun
eflort pour les anéantir. Bien au contraire,
ilsfont avec elles des alliances pour tel ou
tel autre intérêt politique. Cette population
civile massacrée neprésentaitaucun signe
d'hommeprenant part aux hostilité^."^
(DRCRAnnex 97, pp. 11-12.)
555. The DRC also picks and chooses from the various
publications she cites, noting passing (and utterly unsupported)
references to Ugandantroops while totally ignoringfar more
seriousevidence against her own troops. Thus, for example,the
DRC cites the Seventh Reportof the UN Special Rapporteur on
Human Rights (DRCR Annex82) with respect to one incident
alleged, with absolutely no probative evidence or source
identification, to have been committedby unnamed "Ugandan
troops." (DRCR, para. 5.12.) The DRC ignores the ultimate
conclusions of that report with regard to "violations of
international humanitarian law" and "human rights." Those
Il9"Having analysed and studied cases of violations of human rights in
Goma town, we found thata big number of violations were committed either
directly by the RCD authorities or by elements of itsarmy. other
cases of human rights violations perpetrated by unidentified people occur
from time to time inma town. This situation is caused by the fact that the
army men are unpaid and uncontrolled. This led toarms trafficking thus
causing several kinds of violations: armed robbery, killings, r..e, torture..
Most massacres werecommitted by the RPA during the time of the AFDL
and during the time of the RCD. The RPA and its political military
authorities share the responsibility. Theyare also responsible for massacres
carried out by the militias because they have made no effort to put an end to
them. On the contrary, they make alliances with them for different political
interests. Thevilians massacred did not show any sign of having taken
part in any hostilities."conclusions not only stated that rebel forces and the DRC
Government --but not Uganda -- were in control of territory in
eastern Congo but also named the RCD, RCDIML, Rwandan
forces and the DRC Government -- but not Uganda -- as
responsible for the violations:
Violations du droit humanitaire
--ternational.
162. L,es faits les plus graves sont les
massacres de civils commispar lesforces du
RCD et des Rwandais et les attaques contre
les civils dans les querres entre forces
rwanduises et forces ougandaises. Des
prisonniers ont été mutilés, frappés et
castrés. Poursa part, le Gouvernement est
responsable des crimes commis par les mai'
maï contre les militaires en marge du conflit
et contre lespopulations civiles qui auraient
appuyé les forces rwandaises. Il est
également responsabledes bombardements
depopulations civiles dans le nord.
Droits de l'homme
163. Dans le territoire contrôlé par le
Gouvernement, il est surtout porté atteinte
aux droits politiques (droits de
participation, de réunion, d'association et
liberté'd'expression). Dans les territoires
contrôléspar le RCD, le RCD/ML, les droits
quifont l'objet des violations lesplus gmves
sont les droitsfondamentaux (droit à la vie
et à l'tntegritéphysique), mais égalementles
libertés politiques. On ne dispose pas
d'informations suflisantes sur le territoire
contrôlépar le MLC, bien qu'à Gbadolite il ne règnepas le mêmeclimat de terreur qu'à
Gorna,Bukavu ou ~isangarzi.'~~
(DRCRAnnex 82, paras. 162-63.)
556. The accusations that Ugandan forces massacred
Congolese civilians are, in short, unfounded or, in fact,
contradicted by the very publications which the DRC presents
to this Court.
(2) Claimsthat Ugandanforces did not take
measures toprotect civiliansin combat
operations
557. Uganda restates its total respectfor international human
rights standards, and reiterates that it adhered to them in its
limited interventionin eastern Congo.
558. The DRC cites documents that do not point to any
culpability of Ugandan forces. Some of the cited publications
merely record thefact that there was armed hostility between
variousprotagonistsin whichcivilians died, without mentioning
Uganda at all, while the bulk make unverified accusations
without providing evidence.
559. Forexample, in paragraphs5.14 to 5.16 of the Reply, the
DRC cites various publications alleging that civilians died in
I?O"162. Violations of international humanitarian law. The most serious
incidents are the massacres of civilians by RCD and Rwandan forces and
attacks on civilianring the Rwandan-Ugandan wars. Prisoners have been
mutilated, beaten and castrated. The Government, for itspart,sponsible
for the crimes committed by the Mai-Mai againstsoldiers at the edges of the
conflict and against civilian populations whichedly support the
Rwandan forces. Itis also responsible for its bombing of civilian
populations in the north.
163. Human rights. In Government-controlled territory,the rights most
affected are political rights (participation, assembly, association and freedom
of expression). In RCD andRCDML-controlled territory, the rights most
often violated are basic rights (life and physical integrity) without prejudice
to political freedom. There insufficient information on MLC-controlled
territory, although Gbadolites not live in the same climate of terror as
Goma, Bukavu and Kisangani."the fighting between Ugandan andRwandan forces in 1999and
2000. However, while indicating that civilians were killed in
the hostilities, these publications (Amnesty International, Le
Groupe Lotus, and The Interinstitutional Assessment Mission
Reports) do not indicatewho was to blame for the deaths.
560. The sole effort by the DRC to link instances of civilian
injuries and deaths with Uganda is contained in paragraph 5.17
of the Reply, which selectively cites the MONUC Historic
Record of Kisangani Cease-fire Operation. (DRCR Annex 84.)
Though this publication purportedly constitutes a record of
events of only one incident, the DRC seeks to transfer the
reference to Uganda in the MONUC Record to al1 the other
civilian deaths and injuries covered by other publications. The
DRC implicitly argues that since the MONUC Record alleges a
violation of human rights, that constitutes proof with respect to
different incidents which allegedly occurred at different places
and at different tiines. There is absolutely no logical ground on
which any such inferencecan be drawn.
561. Allegations with respect to Kisangani are inadmissible
in this proceeding. (Supra, paras. 33-36; infra, para. 611.)
Without prejudice to or waiver of that position, Uganda notes
that while the DRC cites portions of the MONUC Record
criticising Uganda for allegedly firing over certain sites in
Kisangani (e.g., homes and the UN headquarters), those
allegations, even if accurate, would not establish culpability on
the part of Uganda, because the Record does not indicate
whether any such sites were intentionally targeted or the
circumstances of any such firing. Moreover, the DRC omits
portions of the MONUC Record which makeclear that there
were military targets in those areas:
RPA placed their mortar and artillery
batteries within the downtown homes and
also at the Riviere Gauche right next to the
line of OurHQ.. ..
(DRCR Annex 84, para. E.) The MONUC Record simply does
not permit the conclusion that Uganda violated "international
practice," much less any international law. (Ibid.)562. The MONUC Record is not the only publication cited
inaccurately, selectively, or out of context by the DRC. For
example, the Report by Groupe Lotus (DRCR Annex94) does
not, even once in the excerpted pages, mention Ugandaor its
troops, except to state that RCDIGoma soldiers were
"pretending to be looking for Ugandan soldiers" when the
RCDIGoma soldiers engaged in looting. The Groupe Lotus
Report actually chronicles a number of wrong-doings byRCD-
Goma,which had no links with Uganda.(See DRCR Annex 94,
para. III1.1.)
(3) Claimsthat Ugandarz forces fueled ethnic
conflicts between Congolese tribes
563. The DRC's assertions that Ugandan forces "fueled"
ethnic conflicts are likewise false. First, the DRC again
proceeds from the erroneous assumption that Uganda was an
"occupying State," referring to the"région del'lturi, l'une des
parties du territoire congolais soumises d l'occupation
~uaandaise."'~' (DRCR, para. 5.2 1; emphasis added.) Al1of
the allegations against Uganda respecting the alleged
participation of UPDF troops in the ethnic rivalry between the
Hema and the Lendu tribes are made in the context of this
fundamental misconception thatUPDF troops "occupied the
Ituri region. As already demonstrated, nothingcan be further
from the tnith. (Supra, paras. 170-74, 204-210,407, 525.) If
this faulty premise is eliminated, no viable claim against
Ugandacan survive.
564. Second, with one exception where "direct involvement"
was alleged (see infra, para. 566), the DRC essentially blames
Uganda on the theory that Uganda's merepresence led to
clashes between the two ethnic groups. For example, one
document (DRCR Annex 8 1) simply says that "1'occupation
ougandaise de la rkgion de l'lturi a déclenchéun conflit entre
les Buherna[Le., Herna]et les Balendu [Le., b en du]."'^ (^bid.,
121
"Ituri region, which is one of the parts of Congolesearerritory that
urlderUgarzdunoccupation."
122"the Ugandan occupation of the lturi region has led to conflict between
the Bahema[i.e., Hema]...and the Balendu [i.e., Lendu]."para. 26.) Similarly, the DRC talks of the "destabilising effect"
of the "presence" of the Ugandan troops (DRCR, para. 5.22), of
unspecified "support" and "encouragement" (DRCR, para.
5.21), and of the "passive complicity" of Ugandan soldiers.
(DRCR,para. 5.24.)
565. The impression created is that UPDF troops would have
been able to prevent, and should have prevented, clashes
between the two ethnic groups. This implication, however,
again relies on the erroneous premise that UPDF troops were
actually in occupation of the region, and were therefore
charged, as an occupying force, with the responsibility (and the
police powers) to maintain civil order. Ugandan troops in the
region, however, only secured strategic military targets and did
not engage in general civil administration.(Supra, paras. 170-
74, 198, 201, 204-210, 407, 525.) The assertion that they are
internationally responsible for the ethnic conflicts by omission,
"presence" or "passive complicity"is thereforeunwarranted.
566. The scant "evidence" proffered by the DRC to show
Uganda's so-called "direct involvement" ("participation
directe") simply states that unspecified "Ugandan troops"
engaged in wrongful activity. Like virtually every allegation
made by the DRC, this allegation is not accompanied by
evidence and fails to identify the source of the purported
information. (DRCR,para. 5.23; DRCR Annex 81, para. 104.)
Indeed, the statement in the source document that Ugandan
troops were "in alliance with the Bahema" (ibid., para. 104)
suggests that the DRC is seeking to attribute culpability to
Uganda for actions (if there were any in the first place) actually
undertaken by the Bahema,or that the source document is at a
minimum imprecise in identifying whether the actual actors
were Bahema or Ugandans,if either.
567. The various sources also seem to proceed from a
misconception that the Ugandans were hostile to the Lendu,
who are more closely related to the Hutu, and would favor the
Hema, who are more closely related to the Tutsis. (See DRCR,
para. 5.25.) The basic assumption thatthe Ugandans had reason
to support and encourage the Hema in attacks on the Lendu is
simply wrong, since many more Ugandans living on theUgandan side of the border nearest to the Ituri region of the
DRC are closer in terms of culture and languageto the Lendu
than to the Hema.
568. The DRC allegations also distort the historical context
of the Hema-Lendu conflict. The truth of the matter is that the
conflict between the Lendu and the Hema peoples is deeply
rooted, predates the current conflict, andis intimately entwined
with issues of distribution of political and economic powers
betweenthem. This has been establishedby countless historical
accounts, includingsome of the DRC's own sources, including,
for example, Pourquoi tant de confrontations au Nord-Kivu et
en Ituri?. (DRCR Annex 78.)'" Ugandahas already explained
this complex historical situationin its officia1response to the
Third UN Panel Report:
The HemaILendu conflict is historical and
was triggered off by a fight for land. The
late Mobutu compounded it when he took
sides with the Hema against the Lendu by
giving them land. The UPDF therefore did
not create this conflict. Facts on the ground
clearly demonstrate that the security
situation in al1 the other areas where the
UPDF withdrew such as Gbadolite,
Gamena, Buta, Beni, etc there is relative
peace.
(UR Annex 103,para. 16.)
569. The allegations presentedby the DRC in this regard are
also internally contradictory and inconsistent. Onthe one hand,
the DRC claims that Uganda has sided with the Hema people
againstthe Lendu. (DRCR,paras. 5.22-5.24.) But on the other
hand, the DRC claims that Uganda has been providingmilitary
training to both the Hema and theLendu. (DRCR, para. 5.25.)
The DRC offers no cogent explanation for the contradictory
assertions it makes, other than making the utterly unsupported
assertion that the UgandanArmy wanted "as many 'back-up'
-
123
"Why so much confliin North-Kivu and Ituri?"troops as possible" to fight the Mai-Mai ethnic militias. (Ibid.)
If the UPDF "openly tooksides" with the Hema, it would have
been absurd for the UPDF to train the Lendu so that they could
battle the Hema. Again, as is its practice, the DRC offers no
proof to explain away the inconsistenciesin her story.
570. The allegation that Uganda fanned conflagrations
between the Hemü and the Lendu is, finally, belied by the fact
that even the DRC has recognised Uganda's role as a
peacekeeper in the tribal disputes in the Ituri region. Thus,
under the 6 September 2002 Luanda Agreement between
Uganda and the IIRC, the UPDF was specifically required to
remain inthe Ituri region as a contributor to law and order until
an administrative authority capableof enforcing the laws could
be established. (Iïlfra,paras. 598-604.)
(4) Cluimsthat Ugandanforces destroyed
villagesand homesteads.
571. To bolster its claims that Ugandan forces destroyed
villages and homes, the DRC relies on the same sort of
documents already demonstrated to lack evidentiary value and
credibility, emanating from groups with a political agenda such
as Grand-Nord or simply making accusations without offering
any factual evidence or identifying any sources. Forexample,
the DRC relies (DRCR, para. 5.28) on a Grand-Nord
publication, one of the authors of which is Chairman of
ASADHO and which proceeds from the mistaken prernise that
Uganda participated in the First Congo War. (Supra, paras.
115, 161-66, 415-16.) But even if its inherent incredibility is
ignored, the Grand-Nord publication merely declared that
between 28 March and 9 April 2001 "réquisitionforcée de
véhiculescivils de Butembo pur des militaires Ougandais de
I'UPDF et Congolais du FLC,"'~~and then listed the alleged
damageto property supposedlycomrnittedby those unidentified
soldiers. (DRCR Annex 96, p. 1.) Apart from the utterly
unexplained and unsupported insertionof the words "des
124"certain Ugandan aFLC soldiers forcibly captured civilian vehicles
from Butembo."militaires Ougandais," nothing indicates any Ugandan
involvement in the incident.
572. In addition, although the DRC seeks to blame the
unnamed "Ugandan soldiers" for the property damage, nothing
in the Grand-Nord publication assigns such blame, even if its
allegations are taken at face value. Rather, the publication
indicates that the purported journey of the unidentified
"Ugandan soldiers" "was met with clashes with the Mai Mai
along the Butembo-Manguredjipa access" and nothing indicates
whether the property damage along that road was caused by the
purported Ugandan soldiers, the FLC, or the Mai Mai. (See
ibid.)
573. Another example given by the DRC, which again shows
the incredibility of the publications on which it relies, is the
supposed attack on Butuhe (DRCR, para. 5.28), which -- as
already noted -- one DRC source stated occurred on 8
September 2000 and another stated occurred on or after 8
November 2000. (Supra, para. 553.) And, as is common, there
was no identification of any of the supposed Ugandan troops,
nor any basis for believing that Ugandan troops were involved
at all, if any such incident occurred in the first place. Al1of this
points to one inescapable fact -- the DRC is relying on
information that likely has its source in her own anti-Ugandan
propaganda, which then became woven into the folklore of the
region and repeated as fact to interviewers who made no effort
to obtain independent verification.
(5) Claimsthat Ugandanforces used torture
and otherforms of inhumane treatrnent
574. The DRC's claims as to alleged "torture" and "inhuman
treatment" rest almost exclusively on the ASADHO allegations
that Uganda has already demonstrated to be partisan, biased and
unreliable. As discussed above, ASADHO has made clear by
its own words that it is not objective, but rather that its intent is
to force "a withdrawal of the Ugandan troops" from the DRC.
(Supra, paras. 533-34.)575. Where the DRC relies on other documents (other than
the ASADHO publications), such as a so-called "report" by
Amnesty International (DRCR, para. 5.30), the quoted
publication itselfcandidly makes clear that it is in turn relying
on second- and third-hand stories. (DRCR Annex 89:
"D'après les informations transmises par plusieurs groupes de
défensedes droits humains ainsi que par d'autres sources,"'25
"Amnesty International a reçu des inf~rmations,"'~~and so on.)
In anenvironment wherethe DRC Government and others were
disseminatingpropaganda, and where rumors could readily pass
from person to person without any basis in fact, the type of
publications relied on by the DRC cannot be credited. Indeed,
the Secretary-General of the United Nations put indoubt the
credibility of the Amnesty International "report." (DRCM
Annex 26, para. 46: "...it is difSicultto confirm recent reports
by Amnesty International that the human rights situation has
recently deteriorated...";emphasis added.)
576. The one other document that the DRC hopes will
vicariously give credibility to its othenvise unsupported
allegations of torture is the Third Report of the Secretary-
General on the lJnited Nations Organisation Mission in the
Democratic Republic of the Congo. (DRCM Annex 26.) The
DRC refers to this report ostensibly to show that "many
sources" independently recorded the alleged torture. (DRCR
para. 5.29.) Unfortunately for the DRC, the report is explicitly
clear that, rather than being an independent source of
information, it merely relies on the reports from the "local
human rights lion-governmental organisations." Unlike
situations where the Secretary-General reports from first-hand
sources, this report is clear that the information is simply being
relayed from unconfirmedthird-hand sources:
In the rebel-held areas, recent outbreaks of
heavy fighting, especially in Equateur
Province, reportedly involve severe human
rights violations. According to several
125
"According to several human rights groups and other sources."
126"Amnesty International has received reports," reports from local human rights rzon-
governmental organisations in the eustern
region of the country, rebels, the Ugandan
and Rwandan arrnies and non-signatory
armed groups engage in systematic use of
torture, rape and robbery, the restriction of
movement and enforced deportation.
(DRCMAnnex 26,para. 49; emphasisadded.)
577. In the circumstances,it is not difficulttocludewhich
"local non-governmental organisations" most likely provided
unconfirmed allegations to the Secretary-General. Since the
Secretary-General's report clearly indicates that it is merely
relating unconfirmed "reports" from elsewhere, it is
disingenuous for the DRC to imply that the report itself is an
independent source which confirmed"facts which have already
been mentioned." (DRCR,para. 5.29.)
578. The claims of ASADHO and, by extension, the DRC
provide no evidentiary basis for imputing blame to Uganda.
Claims are broadly made against "Ugandan soldiers," with no
evidentiary basis for concluding that any perpetrators of any
wrongs (to the extent they actually occurred) were in fact
members of the UPDF. Indeed,when ASADHO and the DRC
do seek to embellish their allegations with purported "facts,"
they simplydemonstratetheir unreliability.
579. Thus, one of ASADHO's publications (DRCR Annex
92) that the DRC quotesextensivelyin makingclaims of torture
States,in a bid to demonstrate its authenticity,that the detention
pits thatwere supposedlyused by Ugandan soldiers were called
"mabusu." The ASADHOpublication and the DRC,seeking to
impute blame to Uganda, go on to claim that "mabusu" is a
Kiganda name for "a place of detention from whichone cannot
escape" and that Kiganda is a "language spoken in Uganda,"
and also asserts that the pits were "supervised by a Ugandan
officer calleHAYU." (Ibid.; see DRCR, para. 5.32.) In truth,
however, the word "mabusu" ("mahabusu") is a Swahili word
for a prisoner, and Swahiliis a language spoken throughout theStates of East and Central ~frica.'~~Thus, any use of the word
"mabusu" does not linkthe user to Uganda. The incredibility of
the DRC's sources is further revealed by the fact that there is
not and has never been an officer of the UPDF with the name
Hayu, and by the fact that Hayu is not a Ugandan name. (UR
Annex 107,paras. 10- 11.)
(6) Claims that Ugandanforces recruited
child soldiers.
580. The DRC's allegations that Uganda recruits child
soldiers are, as even the DRC admits, framed only in "general
terms" lacking evidentiary support. (DRCR, para. 5.36.)
Where the DRC attempts to provide more specific examples of
Uganda recruiting child soldiers, she does so only by distorting
the truth and by rnisquoting and mischaracterising the
publicationswhicli she cites.
581. The incident alludedto by the DRC (DRCR,paras. 5.34-
5.36) was not one of child abduction but rather was a case
where scores of children were rescued by thejoint efforts of the
Government of Uganda, UNICEF and various other non-
governmentalorganisations. After an outbreak of Hema/Lendu
fighting in Bunia about 600 people were airlifted to Uganda at
the request of parents and Congolese authorities. At a non-
military school, the children received treatment and counseling
to overcome the effects of the trauma they had endured in the
DRC. The Deputy Permanent Representative and Chargé
d'Affaires a.i. of Uganda provided the true version of events to
the SecurityCouncil:
Recruitment and deportation of Congolese
children to Uganda: Contrary to what is
writteii, the truth is that following the
outbreak of the recent ethnic fighting in
Bunia, about 600 people, includingchildren,
were airlifted to Uganda. This was at the
request ofparents and Congoleseauthorities.
The children (163) have since been handed
'27A Swahili-Englishdictionaryis availableat http://www.yale.edu/swahili/. over to UNICEF -- on 22 February 2001.
The Minister for the Presidency handed
them to UNICEF, UNHCR and Save the
Children, for settlement. It is again on
record that the United Nations applauded
Uganda for this in the UNICEF statement
issued in New York in February 2001.
(UR Annex 48, para.4(d).)
582. The DRC not only misstates that the children were
"kidnapped and taken to Uganda" (DRCR, para. 5.33, but also
manipulatively juxtaposes a text referring to a completely
different situation (ostensibly the "Nyakaleke Camp") to create
the impression that the children were in military trainingand
that their "livingconditions wereterrible." (DRCR,paras. 5.34-
5.35.) Again, both suggestions are untrue. The truth of the
matter, as gratefully acknowledgedby UNICEF in its praise to
the Government of Uganda (UR Annex 48, para. 4(d)), is as
stated by Uganda in her responseto the Third UN Panel Report
-- the children were not "abducted" and they were not in
military training:
Kyankwanzi is a National Leadership
Institute and not a military training camp.
The children were rescued froma mutinyby
Mbusa Nyamwisi and John Tibasiima
against the leadershipof RCD-K under Prof.
Wamba dia Wamba in Bunia and taken to
the Kyankwanzi Leadership Institute for
care and counseling in 2001. The children
were subsequently handedover to UNICEF
Uganda and the Red Cross, which in turn
put the children under the care of World
Vision at Kryandongoin Uganda. UNICEF
Kinshasa arranged to receive and re-unite
the children with their families after the
conflict eased.
(URAnnex 103,para. 26.)583. Not surprisingly, given the true facts, the Secretary-
General's Reports (DRCR Annexes 30,31) on which the DRC
relies (DRCR, para. 5.34) do not state that Uganda recruited
child soldiers. Rather, the Secretary-General specifically and
expressly cited only the RCD and MLC Congolese rebel
organisations for openly urging the recruitment of child soldiers
for local defence. It is in this context that the Secretary-General
stated that some of these recruited children had allegedly
crossed the border into Uganda, mentioning the involvement
only of Congolese "mutineers" against the leadership of the
RCD-ML (DRCR Annex 30,para. 75) and of the RCD. (DRCR
Annex 31, para. 65.) There is not even a suggestion that
Ugandan forces or the Ugandan Government were involved in
any way with the recruitment and deportationof child soldiers.
584. The DRC also rnisleadingly juxtaposes a supposed
"acknowledgement" by Maj. Phinehas Katirima with a
discussion of child soldiers, seeking to suggest that Uganda
admitted that she was training child soldiers. (DRCR, para.
5.34.) The Human Rights Watch publication cited by the DRC
is of limited credibility in the first place, because its source was
apparently only a newspaper article. (DRCR Annex 83, at
n.92.) Even if taken at face value, however, the publication
merely quoted Maj. Katirima discussing Congolese "mutineers
who attempted to topple the RCD-ML leadership," and not in
any way discussing child soldiers. (Ibid.) Contrary to the
impression which the DRC is trying to create, there was no
admission by Maj. Katirima that Uganda was training child
soldiers, and any such admission would have been contrary to
fact.
585. Finally, contrary to the DRC's slurs, the UNICEF
documents (DRCR Annex 88) and the Eighth Report of the
Secretary-General (DRCR Annex 34, para. 54) on which the
DRC relies (DRCR, para. 5.35) do not support the claim that
Uganda took part in the recruitmentof child soldiers. Both sets
of documents actuallythank and praise the Ugandan authorities
for facilitating the demobilisation, travel and re-integration of
Congolese child victims of the HemaLendu fighting who had
come under Llganda's protection. Again, the DRCmisrepresents the substanceof documents in order to impugn
Uganda.
(7) Cluimsthat Ugandanforces terrorised
Congolesecivilians
586. The DRC next attempts to show that Ugandan troops
carried out acts of violence against Congolese civilians, andin
particular Catholic priests, purportedly because the Catholic
Church demanded the withdrawal of Ugandan and Rwandan
troops from Congo. (DRCR,para. 5.37.)
587. As already noted (supra, para. 552), the publication of
the European Congo Network (REC) on which the DRC
primarily relies for these allegations (DRCR Annex98) itself
makesclear that it cannot be creditedas a sourceof evidence:
[Le REC] n'accepte aucune responsabilité
sur précision dt. sources orininales.
Devant la nécessitde vous tenir rapidement
informés, le secrétariatprend le parti de
n'êtrepas toujours en mesure de vérifierces
irlformations, et - saurait12'8- tenu
responsabled'erreursfactuelles.
(Ibid., p.1; emphasis added.) Accordingly, both theREC
publication and theCatholic Church announcement on which
the DRC relies refer to unnamed "Ugandan soldiers" without
further evidentiary basis, and cannot support the DRC's
accusationsagainst Uganda.
588. The DRC's allegations with regard to Catholic priests
exposes another flaw in her arguments. Throughout the Reply,
the DRC attempts to portray Ugandan forcesas blood-thirsty
troops who engaged in widespread murdersand torture. The
DRC also asserts that Catholic priests were the "major target"
of Ugandan soldiers, who "wanted totake revenge" because the
-
12"RECdoes not acceptany resporlsibilityfor the theoriginal
sources.ecause of the necessity to keep you quickly informed, the
secretariat is not al3position to verify this inforis not and
tliereforeresponsiblefor anyfactual errors."priests wanted the soldiers to return to Uganda. (DRCR, para.
5.37.) Yet the alleged incidents of violence against the priests
amount to thefts and beatings. Such incidents -- if they actually
occurred and were proven by the DRC, which is not the case --
could of course not be condoned. But there is an inescapable
inconsistency in the DRC's allegations. The DRC asserts that
priests, the "major target" of the UPDF, were robbed and
beaten, while at the same time asserting far more horrific
conduct toward others who were allegedly the focus of less
enmity. In short, the DRC's story, particularly its allegationsof
more serious wrongs against those other than priests, simply
does not makesense.
(8) Claims that Ugandanforces looted and
destroyed privnte property.
589. In claiming that Ugandan forces looted and destroyed
private property, the DRC again follows her pattern of offering
wild accusations, misquoting sources, and failing to offer any
cogent or coherent evidentiary support. For example, the DRC
alleges that eight soldiers, "one of whom was a Ugandan
officer," robbed a shop in Biambwe. (DRCR, para. 5.39.) The
source again is a partisan Grand-Nord publication. (DRCR
Annex 96; see supra, paras. 539-41.) But the DRC misuses
even the unsupported allegations of the Grand-Nord document,
which states only that a Ugandan "soldier" and not a Ugandan
"officer" wasinvolved in the incident. (Compare DRCR, para.
5.39 with DRCR .Annex96, p. 2.) In any event, as is typical in
the Reply, no explanation is given as to how this unidentified
Ugandan soldier was recognised as such, or by whom. There is,
of course, also the unlikelihood that a small shop in Biambewe,
even if "very busy," would have had 60,000 American dollars
on hand to be stolen as the DRC alleges. (DRCR, para. 5.39.)
There is simply not enough credible evidence here to establish
any Ugandan involvement in the incident, or, indeed, even to
establish that suc1an incident occurred.
590. Al1of the DRC's other accusations of looting and theft
by Ugandan sold.iersare also framed in the most general terms
and without any effort to provide the requisite supporting
evidence. (DRCR, paras. 5.40-5.42.) The DRC again turns tothe partisan and discreditedASADHO publication for support.
(DRCR, para. 5.41.) The DRC also adds totally unsupported
allegations that Ugandan troops were looting because Uganda
intended "to maintain its army 'on the country"' (DRCR, para.
5.42), an assertion that has been shown to bedemonstrablyfalse
in Chapter IV of this Reply. (Supra, paras. 425-26.)
591. Finally, the Human Rights Watch publication cited by
the DRC by its very terms negatesthe DRC's allegations that
thefts were partof a "policy of terror" of Ugandan forces. (See
infra, paras. 592-95.) Thus, Human Rights Watch-- even if its
second- and third-hand allegationsof wrongdoing were to be
believed --Statesthat Ugandanforces were actingnot as part of
an officia1"policy of terror" but because there was a "lack of
command." (DRCR,para. 5.40.)
(9) Clairnsofa Ugarzdan"policyof terror"
592. The DRC7sfinal accusation is that the alleged incidents
she recounts were partof a Ugandan "policy of terror" rather
than merely "isolated and 'accidental'incidents." (DRCR, para.
5.43.) The DRC's argumentis without meriton its face.
593. As set forth at length above,the DRC has failedto prove
that the alleged individual incidentsoccurred in the first place.
The DRC relies primarilyon the reports of ASADHO, again, a
demonstrably partisan, anti-Ugandan group, and on other
unsubstantiated reports of unidentified "Ugandan soldiers"
engaging in misconduct. The DRC then compounds the
inadequacies of its source documents by misquoting and
mischaracterisingthem, concocting accusations against Uganda
that not even the source documents dare to make. Because
there is no credible evidence that the incidents occurredin the
first place, Ugandacannot be faulted for failing to "punish the
unidentified, indeed non-existent, "Ugandan soldiers"who
purportedlycommittedthe wrongs.
594. Moreover, the DRC stumbles over its own arguments in
attempting to impute liability to Uganda. Thus, the Reply
emphasises the "varied nature" ("diversité'')of the alleged
incidents, an allegation that is inconsistent with the DRC'sclaim that they were "systematic practices." (DRCR, para.
5.43.) "Varied" incidents -- if any incidents happened in the
first place, which is not the case -- would demonstrate wrongs
perpetrated by individuals acting on their own, rather than
"systematic practices" and a centrally orchestrated "overall
policy."
595. In fact, contrary to showing a "policy of terror," even
the DRC's sources show that Uganda did not ignore the
allegations made against its soldiers. For example, Amnesty
International reports that Ugandan cornmanders, rather than
ignoring allegations of wrongdoing, investigated allegations
with respect to the fighting in Kisangani. (DRCR, para. 5.43.)
As the Amnesty International publication States,there were no
legal proceedings not because wrongdoing, if any, was
condoned, but rather because the alleged facts could not be
established. (Ibid..)'29
D. The UnitedNations AndThe DRC Herself
Have RecognisedAnd AffirmedUrranda's
PeacekeepingRole
596. The United Nations has repeatedly recognised that
Uganda, rather than engaging in a "policy of terror" in eastern
Congo as the DRC asserts, has performed and continues to
perform a vital role in defusingviolence inthe area. If Ugandan
troops had indeed been engaging in the reign of terror falsely
portrayed by the DRC, the United Nations and others interested
in the welfare of eastern Congo would have taken every
conceivable opportunity to force the UPDF from the area as
quickly as possible. But exactlythe opposite has occurred -- the
United Nations and even the DRC have encouraged Ugandan
troops to remain in the region because of their vital contribution
to maintaining the peace.
597. As already discussed at length, when President
Museveni sought to withdraw al1Ugandan troops from eastern
129Allegations with respect to Kisaarein any event, inadmissible in
this proceeding. (Supra, pa33-36;infra, pa61.1.) Ugnnda does not
hereby waive that position.Congo in early 2001, the Secretary-General implored himnot to
do so. It may be presumedthat if the UPDF had actuallybeen
engaged in widespread looting and human rights violations as
the DRC alleges, the Secretary-General wouldhave welcomed
President Museveni's announcement of troop withdrawal with
open arms. Instead, on 4 May 2001, the Secretary-General
wrote to President Museveni specificallyasking that Ugandan
troops not withdraw immediatelyor unilaterallyfrom the DRC.
President Museveni felt he had no choice but to accede to the
Secretary-General'srequest. (UR Annex 56; see supra, paras.
221-23.)
598. Documentary evidence establishes that Uganda, rather
than encouraging bloodshed between theHema and the Lendu
in the Ituri region, has sought to use its influence to prevent
violence between the two rival ethnic groups. Thus, on 1
February 2002, Ugandan Minister of State for Defence Hon.
Amama Mbabazi addressed a letter to the President of the
Security Council expressing concern about the deteriorating
security situation in the Ituri region. (UR Annex 75.) Hon.
Mbabazi noted with alarm that once Ugandan forces hadbeen
concentrated at the airport in Bunia, widespread killings of
civilians and of combatants had occurred, ranging from
hijackings on the roads outside Bunia to murders and burnings
of villages. The letter also noted thattribesmen, mainly Lendu,
were organising to attack various nearby villages, and that
groupswere being armed to commit genocide. (Ibid.)
599. Rather than "encouraging" or even tolerating the
deteriorating situation in the Ituri region, as the DRC alleges,
Ugandamadeclear that the stateof affairs wasnot acceptable to
her, for it not only threatened the security of Uganda'sborders
but also had negative implicationsfor the stability and futureof
the DRC. (Ibid.) Hon. Mbabazi invited the UnitedNations
(acting through MONUC) to work to find a solution to the
problem. Hon. Mbabazi further noted the possibility that
Uganda might have to redeploy its troops to stop the carnage,
but asked for the advice and "clear opinion" of the Security
Council before taking such action. (Ibid.)600. Uganda re-deployed her troops back to Bunia to restore
security in the face of escalating violence only after being
specifically asked to do so by Mr. Amos Ngongi Namanga, the
Special Representative of the UN Secretary-General to the
DRC. Contrary to the claims of the DRC, Uganda was, in fact,
extremely reluctant to re-assign her troops to Bunia, and
advised the Security Council that she was only doing so
followingthe specificrequest of Mr. Namanga. Thus, in aletter
dated 5 February 2002 addressed to Mr. Namanga and
distributed to the Security Council via a letter dated 13February
2002, Hon. Mbabaziwrote:
1 acknowledge receipt of your [Mr.
Namanga's] letter dated 2 February 2002
concerning the increase in violence in
northeastern Democratic Republicof Congo.
We had withdrawn our troopsbecause of the
persistent misrepresentation of the Uganda
Peoples' Forces (UPDF) role in the
problems of the area and the consequent
malignment that the Governmentof Uganda
suffered. No one, including the United
Nations, came to Our defence, although it
was clear that the UPDFrole was positive.
The Uganda government, therefore,
welcomes your recognition of this and will
irnrnediatelyre-deploy in the areas of tribal
conflict to restore security.
(UR Annex 76.)
601. Indeed, in addition to the outright acknowledgement by
the UN SpecialRepresentativethat, contraryto the unsupported
allegations of the DRC, UPDF troops are an important
stabilising factor in Bunia and play an essential role in the
protection of human rights in the area, the UN Secretary-
General himself has also recognised Uganda's positive role in
the area. Uganda noted this acknowledgement by the UN
Secretary-General, and put the Hema-Lendu conflict in itsproper historicalcontext, in a letter to the UN Security Council
dated 14March 200 1:
HemaILenduconflict: Uganda is accusedof
direct involvement in the outbreak and
continuationof inter-ethnicfighting between
the Hema and the Lendu. Again the Charge
d'affaires is not being honest about the
history of his country. What are thefacts?
Uganda hasdone its best tostop inter-ethnic
fighting, pacify the affectedareas and unite
the various groups in the Democratic
Republic of the Congo, historical rivalry
between Hema and Lendu notwithstanding.
The Secretary-General acknowledged
Uganda's positive roleIn his report on the
United Nations Organisation Missionin the
Democratic Republic of the Congo
(MONUC) of 12 February 2001
(S/2001/128, para. 27): "Since 22 January
2001 MONUC military observers in Bunia
have reported the situation in town to be
tense but with Ugandan People's Defence
Force (UPDF) in effectivecontrol."
(UR Annex 48, para. 4(c).)
602. Finally, on 6 September 2002, President Yoweri
Museveni of Uganda and President JosephKabila of the DRC
met inLuanda,Angola and reachedan Agreement whichis fatal
to the DRC's allegations that Uganda bears responsibilityfor
the Hema-Lendu conflict. The Presidents reviewed the situation
in eastern Congo and reached an accord setting forth a
methodology to put anend to the conflict,to withdraw Ugandan
troops from the DRC, and to normalise relations between the
two countries. (URAnnex 84.)
603. In Paragraph 3 of the Luanda Agreement, theDRC
explicitly recognises that the continuing presence of Ugandan
troops in the Ituriregion is critical to the maintenance of peace
and public order in that area. Specifically, that paragraphprovides that the DRC, Uganda and MONUC will put in place a
Joint Pacification Committee on Ituri consisting of the parties
(includingboth the DRC and Uganda),other forces active in the
area, and legal grassroots communities. (Ibid., para.3.) Only
after that Pacification Committee has been established and is
operating, and only after the Committee determines a
"mechanism to maintain law and order in Ituri Province,"
establishes "[a]dministrative authority in Ituri Province," and
installs a "law enforcement mechanism to replace UPDF"
would Uganda begin the withdrawal of its troops from Bunia
(the principal town in the Ituri region). (Ibid., Annex A.)'~'
Moreover, only after the Pacification Cornmittee hascompleted
the "establishment of alternative law enforcement mechanism"
would the withdrawal of UPDF forces from Bunia be
completed. (Ibid.)
604. Thus, in the Luanda Agreement even the DRC
recognises that the UPDF, rather than encouraging violence and
chaos, contributes to order in the lturi region. Had the UPDF
actually been the destructive force portrayed in the Reply, the
DRC certainly would have insisted on the immediate
withdrawal of Ugandan troops as theonly means to bring peace
to the area. At the very least, the DRC would have refused to
execute an agreement expressly allowing Ugandan troops to
remain in Congolese territory. But the DRC took exactly the
opposite position in the Luanda Agreement, authorising and
agreeing to the continued presence of the UPDF in the Tturi
region of eastern Congo as a mechanism for maintaining order
in the troubled region pending the creation and installation of a
new and suitable security arrangement.
'" MONUChad earlier, in February200(seURAnnex 76), requested that
the city followingan escalationof violenceduring the withdrawal. (See
supra, paras. 598-600.) E. KesponseToThe DRC'sLegalArguments.
605. In approachingthe legal principles allegedly violatedby
Uganda, the Respondent State has a problem of a general
character. This stems from the fact that Uganda denies the
allegations and, further, considers that the Claimant State has
not satisfiedthe applicable standard ofproof.
606. It must follow that there is not much value in an
examinationby Ugandaof the quality and relevanceof the legal
principles setforthby the DRC in paragraphs 5.52to 5.65 of the
Reply.
607. As a matter of principle Uganda does not necessarily
reject al1the propositions of law offered by the DRC, though
Uganda does reject the mode in which the DRCseeks to apply
the legal principles.
608. In the light of the contents of the Reply,Uganda finds it
necessary to repeat the conclusion reached in the Counter-
Memorial that the DRC has not produced any reliable evidence
of the responsibility of Uganda for the alleged violationsof
human rights. In this connection Uganda confirms the
substance of Chapters VI1 and VI11of the Counter-Memorial
relating tothe serious inadequacies of the Memorial in matters
of proof. The Court is respectfully referredto the passages at
page 94 (paras. 153-55) of the Counter-Mernorial and the
contents of Chapter IX on the role of the politicalorgans of the
United Nations.
609. As the contents of Chapter V of the Reply indicate, the
evidential problems remain unchanged. In particular, the DRC
fails to produce evidence of imputability at the necessary
standard.
610. In these circumstances Uganda reaffirms her position
that the DRC has not satisfied the standard ofproof required in
establishing state responsibility in relation to the claims
concerning violations of human rights. As the Court expressed
the position in the Co$u Channel case (Merits) in reaction to
the second alternative argument of the United Kingdom to theeffect that the minefield was laid with the connivance of the
Albanian govemment:
A charge of such exceptional gravity against
a State would require a degree of certainty
that has not been reachedhere.
(I.C.J. Reports, 1949,p. 17.)
611. In paragraphs 5.14 to 5.20 the DRC invokes events said
to have occurred in Kisangani "during the fighting between the
Ugandan and Rwandan Armies in Kisangani in 1999 and2000."
(DRCR, para. 5.14.) Butissues arising out of these events are
inadmissible in these proceedings, as Uganda explained in
Chapter XV of the Counter-Mernorial. In this connection
Ugandafinds it necessary to affirm her conclusions:
In the light ofhese various considerations,
the Government of Uganda respectfully
submits that the Court lacks competence to
deal with the events in Kisangani in June
2000 in the absenceof consent onthe part of
Rwanda, and, in the alternative, even if
competence exists, in order to safeguard the
judicial function the Court should not
exercise that competence.
(UCM,para. 287.)
612. With respect to the references to the Geneva
Conventions of 1949 and the Additional Protocols contained in
Chapter V of the Reply, Ugandadoes not accept that the various
incidents invokeclby the DRC, assuming they can be proved,
occurred in the context of an armed conflict. The DRC has
made no effort to establish the existence of an armed conflict in
the locations which are indicated in the Reply. CHAPTERVI
REAFFIRMATIONOF THEVALIDITYOF UGANDA'S
COUNTER-CLAIMS
A. The FirstCounter-Claim:TheDRC's
ResponsibilitvforActsCommittedBvArmed
Groups SponsoredOrToleratedBY
SuccessiveCongolese Governments
(1) Introduction
613. Since 1986, Uganda's singlemost important concernin
her dealings withthe DRC and her predecessor Zaire has been
security along the two States' common border. Indeed, attacks
on Uganda byvarious insurgent groups operating from eastern
Congo have been a point of contention between the two States
for almost al1of the last 16years.
614. Throughout this period, Uganda has consistently
expressed her concern about this issue in meetings with
Zairean/Congolese officials, and with the international
community at large. The DRC7s waiver arguments
notwithstanding, it should thereforecome as no surprise to the
DRC that Uganda wouldfile a counter-claim against Zaire's--
and later, the DRC's-- harbouring of these armed groups and
unlawful useof force against Uganda.
615. In this section, Uganda will show that her firstcounter-
claim isjustified and that it is supported by theevidence, which
clearly proves that both the governmentsof Presidents Mobutu
Ssese Seko and Laurent Kabila tolerated and supportedanti-
Ugandaforces in violationof international law.
(2) Theprocedural issuesraisedby theDRC
616. In the Reply the DRC contends that, in spite of the
Court's determination of the question of counter-claims, the
issue of the admissibilityof Uganda7scounter-claims is still at
large. (DRCR,paras. 1.32-1.39,6.01.) This is not the first time
that the DRC has offered unacceptable and bizarre opinions on
the application of the provisions of the Statute of the Court.The Court has made a definitive determination on counter-
claims for the purposes of Article 80 of the Rules of Court and
the matter rests there.
617. With the purpose of assisting the Court, the Government
of Uganda will examine the DRC arguments insofar as they
appear, in substance, to pertain to the merits. This represents
the practical way fonvard.
The argument that the claimsrelatingto
(3)
theperiodprior to President Kabila's
achievementofpower inApril1997 are
inadmissible
618. This argument is presented in the Reply, paragraphs 6.03
to 6.15. It is entirely without merit. The DRC has presented no
preliminaryobjectionrelatingto this issue. Moreover,any such
preliminary objection would have lacked merit because the
Declarations of the Parties contain no reservations ratione
temporis. (See Rosenne, The Law and Practice of the
International Court, 1920-1996, Vol. III, pp. 785-802; the
Mavrommatis Palestine Concessionscase, PCIJ., Series A, No.
2, p. 35.)
(a) In law, Ug-nda never waived its
claim against Zaire
619. The Reply also advances the argument that Uganda has
waived the claims relating to this period asa consequence of her
conduct. (DRCR, paras. 6.04-6.15.) Uganda contends that the
conditions for the existence of a waiver in general international
law are not satisfied.
620. In the first place, at criticaljunctures the Government of
Uganda made its attitude clear in response to the harbouring of
armed bands and support for their activities by Zaire. (Infra,
paras. 631-41 .)
62 1. Secondly, the absence of protest does not, as a matter of
law, validate illegal acts. It may be true that the Government of
Uganda was not in al1respects consistent in its conduct, but as
Fitzmaurice has observed: "Too much account should not betaken of superficial contradictions and inconsistencies." (See
Fitzmaurice, The Lw and Procedure of the International Court
ofJustice, Vol.1,Cambridge, 1986,p. 175.)
622. In the third place, acquiescence is not to be presumed.
(See ibid., p. 174.) The DRC invokes the Phosphate Lands
case. (DRCR, para. 6.12-6.13.) In that case, the Court faced a
situation in which the contacts and representations were
episodic, to Saythe least. The Court took a common sense and
realistic view of the political circumstances, which involved
gaps of many years between contacts. The Court set out the
history (I.C.J. Reports, 1992,paras. 33-35), and concluded:
The Court, in these circumstances, takes
note of the fact that Nauru was officially
informed,at the latestby letter of 4 February
1969, of the position of Australia on the
subject of rehabilitation of the phosphate
lands worked outbefore 1 July 1967. Nauru
took issue with that position in writing only
on 6 October 1983. In the meantime,
however, as stated by Nauru and not
contradicted by Australia, the question had
on two occasions been raised by the
President of Nauru with the competent
Australian authorities. The Court considers
that, given the nature of relations between
Australia and Nauru, as well as the steps
thus taken, Nauru's Application was not
rendered inadmissible by passage of time.
Nevertheless, itwill be for the Court, in due
time, to ensure that Nauru's delay in seising
it will inno way cause prejudice to Australia
with regard to both the establishment of the
facts and the determinationof the content of
the applicable law.
(I.C.J.Reports, 1992,para.36.)
623. This decision related to admissibility, but was carefully
based on the facts and the pertinent objectionwas notjoined tothe merits. The rejection of this preliminary objection based on
the alleged waiver byNauru was by 12votes to one.
624. The Court will take its own view of the evidence of the
alleged waiver. In this respect the documents relied uponby the
DRC appear to prove the opposite of the acquiescence. An
exarnpleconsistsof the following(as presented in the Reply):
La renonciation de l'Ouganda peut non
seulement être déduitede son silence
circonstancié, mais aussi de certaines
positions qu'il a adoptées à l'époque,&
tempore non suspecto. Ainsi, en octobre
1996 encore, il est fait mention dans
certains documents officiels ougandais du
fait que certains des événements survenant
au aire durant cette période risquaientde
"undermin[e] the cordial neighbourhood
relationship." Un tel vocable cadre
évidemment mal avec une quelconque
prétentionde mise en cause formelle de la
résponsnbilité du Zaïrà l'époque. Dans ce
contexte, il est particulièrement significatif
de constater que, le 4 novembre 1996 a
Kampala, le Président ougandais YoweriK.
Museveni et le Vice-Président rwandais
Paul Kagame ont remis au Conseiller
spécial en matièrede sécuritéde Mobutu,
Honoré N'Gbanda Zambo Ko Atumba, un
document en douze points à l'atterztiondu
Président Mobutu, deson Gouvernement et
de l'Union européenne en vued'ouvrir une
négociation directe et immédiatepour uïz
cessez-le-feu. Le point no. 10, de ce
document est particulièrement pertinent
pour laprésente afiire. Il dispose qu:
"L,e Gouvernement zaïrois doit
chasser les Interahamwe, les anciens
dirigeants du Gouvernement
rutandais et leurs militaires du territoire zaïrois. Il doit éloignerde
la frontière ceux des réfugiés
rwandais qui refuseraient de quitter
le Zaïre, et ce, conformément aux
accords internationaux."
Il est piquant de constater que dans ce
document intitulé"Propositions du Rwanda
et de 1'Ougandupour la paix (suggestiondu
PrésidentMobutu), "1'Ouganda,quien était
CO-auteuravec le Rwanda, n'a fait aucune
allusion à un éventuel soutien que le
Gouvenzement Mobutu apporterait aux
rebelles ougandais pour en exiger la
cessation. Aucune protestation ni
revendication n'a, a-fortiori, étéavancéeà
cet égard. Il est exclusivement question de
la cessation d'un prétendu soutien aux
groupes armés rwandais hostiles au
Gouvernement du Rwanda. A contrario,
l'Ouganda exprime très clairement sa
position en s'abstenant de formuler un
quelconque grief à l'égard d'un éventuel
soutien du régime zaïrois à des forces
rebelles situées sur son territoire. Ce
document est évidemment hautement
significatîJ puisqu'il exprimait les griefs
ofJiciels de l'Ouganda et du Rwanda à
l'égarddu Zaïre. Il suffià montrer une très
claire renonciation de 1'Etat ougandais à
vouloir engager la responsabilitédu Zaïre
pour ce qui fera l'objet, bien des années
plus tard, d'une demande adressée à la
~our."'
-
13"Uganda's waiverof the claim can be deduced not only from its silence,
but also from certain positions which it adopted at that time, in tempore non
suspecto. Thus, in Oct1996,certain Ugandan officia1documents
mentioned the fact thatcertain eventsplace in Zaire during that period
werelikely to 'undermine the cordialneighbourhood relationship.'
Obviously such a statement does not agree with the view that there was any(DRCR,para. 6.07;footnotesomitted.)
625. This is a remarkable piece of reasoning. The document
shows that Uganda and Rwanda considered that a serious and
persistent public order problem existed and were employing
diplomacy to seek to ameliorate the difficulties. The passage
quoted by the DRC refers very clearly to these concerns. There
is no waiver. When the document is read as a whole (DRCR
Annex 100), it will be seen that the perspective is that of the
maintenance of public order in the region, and such a
perspective cannot be construed as a waiver of claims.
626. It is suggested that the absence of complaint to the
Security Council is conclusive evidence of waiver. (DRCR,
para. 6.08.) In response, Uganda would point out that it is not
the case that a failureto address complaintsto politicalorgans is
a cause of inadmissibility. Moreover, it is only on a few
forma1invocation of Zaire's responsibility at that time. In this context, it is
particularly important to note that, onovember 1996 in Kampala,
Uganda's President k'oweriK. Museveni and the Rwandese Vice President
Paul Kagame gave a twelve-point document to HonoréN'Gbanda Zambo Ko
Atumba, Mobutu's Special Advisor on Security, addressed to President
Mobutu, his Government and the European Union, with an aim of starting
direct and immediate negotiations for aase-fire. Point nOIofthis
document is particularly relevant to the present case. Itdes that:
'TheZairean Government must expel the Interahamwe, the former
leaders of the Rwandese Government and their soldiers from
Zairean territory. It must keep away from the border,the
Rwandese refugees who may refuse to leave Zaire, in conformity
with the international agreements.'
It is noteworthy that, in this document entitled 'Rwanda and Uganda's
proposals for peace (suggestions to President Mobutu),' Uganda, which-
authored it with Rwanda, did not makeanyreference to any support by
Mobutu's Government to Ugandan rebels soasto demand for its cessation.
No protest or claim wasafortiop rresented in this regard. They only asked
for the cessation of alleged support to thed Rwandese groups that were
hostile to the Government of Rwanda. Uganda did not present any
complaint against any support by the Zairean government to rebel forces on
its territory. This document is important,ce it expressed Uganda and
Rwanda's official complaints against Zaire. It suffices to show a clear
waiver of the claim by the Ugandan State to hold Zaire responsible for what
would become, many years later, a claim addressed to the Court."occasions that the political organs address the legal issue of
imputability. (UCM,paras. 196-206.)
627. A further line of argument adoptedby the DRC involves
reliance on the fact that in the period May 1997to April 1998,
that is,the post-Mobutu period, the conductof Uganda involved
a waiver because relations between the two States improved.
(DRCR, paras. 6.10-6.15.) This reflects the realities of the
diplomatic situation, but thereis no evidence of a waiver of
existing claims.
In fact, Ugandanever waived its
(b) claim against Zaire
628. The DRC's argument that Ugandawaived her counter-
claim targeting Zaire's unlawful use of force against her during
the Mobutuera is also based on severalkey factualmyths, al1of
which arebeliedby reality:
Myth: Ugandawaived hercounter-
claim because Ugandanever
protested Zaireancomplicityto
Zairean officiaisbefore 23 March
1999.
Fact: Uganda complained directly to Zairein
diplomaticnotes as early as 1990.
Myth: Uganda waived her counter-
claim because Ugandanever
protestedto the international
community.
Fact: Uganda complainedto the international
community loudly andoften.
Myth: Ugandawaived hercounter-
claimbecause Uganda'sconduct
led the DRC to believethat
Ugandadid not intendto hold her
accountable forZaire's aid to
anti-Ugandan forces. Fact: Uganda never signaled an intent to the
DRC to forget thepast.
629. A thorough analysis of the evidence will show each of
these myths for what it is and that Uganda has never acted to
undermine the viability of her counter-claim targeting the
wrongs inflictedupon her by Zaire.
(i) Uganda 'sconduct before
the creation of the DRC
did not involve the waiver
of her claim against Zaire
630. The DRC argues in the first instance that Uganda
waived the portion of her counter-claim directed at the
behaviour of the Zairean Government because Uganda
supposedlyfailed to protest or object formallyto Zaire's actions
before 23 March 1999. (DRCR, para. 6.06.) Contrary to the
DRC's assertions,however, Ugandawas never silent in the face
of Zaire's aggression. Indeed,the DRC's argument that Uganda
never protested Zairean involvement in attacks against Uganda
is nothing less than shocking in view of the facts.
631. In reality, Ugandarepeatedly protested Zaire's passive --
and later, active -- support of anti-Uganda forces directly to
Zaire and to the United Nations. (See, e.g., UCM Annex 1;UR
Annexes 7, 10.)'~~ Initially, Uganda attempted to use
diplomaticchannelsto address her securityconcerns with Zaire.
In 1990,for example, Uganda stronglyencouraged Zaire to take
immediate action to increase security along their common
border. (UCM Annex 1.) In a 6-page report entitled
''UgandaIZaireMatters of Security Concern to Uganda," the
Hon. Amama Mbabazi detailed dozens of attacks against
Ugandan nationals, identifying the persons involved, the dates
of the attacks and the circumstances of the attacks. (Ibid.)
Perhaps most importantly, the report contains a section entitled
"Ugandan ~issidents in Zaire." In that section, Mr. Mbabazi
identified each k.nownUgandan rebel group based in eastern
132Manyotherexaniplesexist.(Seee.g.URAnnexes13, 14, 15.)Congo, the locationof its headquarters in Congo and the names
of its leaders.
632. The 1990report also contains a separate section entitled
"Collaboration Between theDissidents and Zairean Authority."
There, Mr. Mbabazi described, among other events, ameeting
on 1June 1990chairedby Zairean MajorTambwe and attended
by several anti-Uganda rebels. The meeting was held at
Mutawa military barracks in eastern Zaire to "discuss a strategy
for fighting theNRM [National Resistance Movement, i.e.the
Ugandan] Government." (Ibid.,p. 5.) Not surprisingly, within
sixty days of that meeting, groups under the leadership of the
anti-Uganda rebelswho had attended launched threeseparate
attacks against Ugandan military posts and an electricity
substation. (Ibid., p. 6.) After each attack, the rebels retreated
into Zaire. Despite requests from the Governmentof Uganda,
Zairean authorities refused to extradite the rebels even though
Uganda specifically identified the perpetrators and the location
of their hideoutin Zaire. (Ibid.,p. 6.)
633. Since Uganda's protests to the ZaireanGovernment fell
on willfully deaf ears, Uganda took her complaints about
Zairean aggression, including Zaire's alliance with Sudan in
support of anti-Uganda rebels, to the international community.
(See, e.g., UR Annexes 7, 10, 13, 14, 15.) The following are
just some examples of Uganda's repeated protests of Zairean
aggression:
634. Letter of 12 June 1996. On 12 June 1996, Uganda
subrnitted a forma1 protest letter to the Security Council
complaining about a 26 April 1996 attack in Kisoro, Uganda.
Uganda initially senta protest note to Zaire regardingthis attack
but, having receivedno response, Uganda submitted herprotest
to the SecurityCouncil. In particular, Uganda charged:
It is equally important to note that on 26
April 1996 a group of Ugandan dissidents
led by one Haji Kabeba based in Zaire
attacked Kisoro, in south-western Uganda,
through Busanza and killed three Uganda
People's Defense Forces (UPDF) soldiers, two soldiers' wives and one child. This
group was repulsed, seven of the bandits
were killed and three captured alive.
Information gathered from those who were
captured revealed that they were linked to
the Sudan-based West Nile Bank Front of
Juma (Iris. We indeed issued a statement
condemning this unprovoked attack and
have since sent a note of protest to the
Government of Zaire who has not responded
to date.
(UR Annex 7.)
635. Letter of 12 December 1996. Uganda again protested
Zairean complicity in attacks launched by anti-Uganda rebels in
a letter to the Security Council dated 12 December 1996. In
that letter, Uganda complained that forces originating from
inside Zaire had invaded on 13 November 1996 and attacked
the Ugandan tom of Mpondwe. In particular, the letter
protested:
On 19November 1996,the Ugandan border
town of Mpondwe was shelled by forces
from the Zairean border town of Kasindi.
Duringthe shellingsome armed groupsfrom
inside Zaire attempted to re-enter Uganda's
territory. UPDF again responded by
destroying positions thatthe invading forces
were using for launching their attacks
againstUganda territory.
(UR Annex 10, p. 2.) Uganda's letter further alleged Zairean
complicity in attacks against Rwanda, as well as her
responsibility for attacksagainst Uganda:
After the 1994 genocide in Rwanda, the
defeated Rwandan soldiers and the
Interahamwe camped along the Zaire-
Rwanda border (two miles inside Zairian territory) withal1the military hardware they
carried from Rwanda.
... For two years, Zaire continued
harbouring armed elements who regularly
made cross-border attacks against Rwanda,
causing perpetual threat to international
peace and securityin theregion.
...Ugandan dissidents have been livingin
Zaire, withthe full knowledgeof the Zairian
authorities. These have taken advantage of
the prevailing situationand attacked Uganda
from Zairian territory. ... Zaire should
muster the courage and acknowledge the
fact that the problem within eastern Zaire is
a result of its own oppressive policies
againsta sectionof its citizenry.
(Ibid pp.,2-3.)
636. There are many other examples of such protests. (See
supra para. 631, n.13 1.) In light of the above, however, it is
unmistakably clearthat Uganda was consistentin raising before
the international community the sufferinginflicted uponher by
attacks launched fromwithin Zaire.
637. In addition to protesting attacks from anti-Uganda
rebels, Uganda also repeatedly protested Zaire's joint efforts
with Sudan to destabilise Uganda, includingtheir collaboration
in supporting rebels launching attacks from Zaire intoUganda.
Forexample, in 1997,Uganda alerted the United Nationsthat:
On 12October 1996rebels of the West Nile
Bank Front(WNBF) estimated at about 120
and commandedby "Captain" Moro sprang
from their base in Kaya in the Sudan,moved
through Zaire and entered Uganda through
Simbiri on the north-eastern borderof Zaire
with Uganda. Later, the rebels attackedthe Uganda People's Defence Forces (UPDF)
position at Maracha. The group was badly
beaten and retreated back intoZaire.
(UR Annex 15,p. 3.)
638. It is thus clear that far from remaining silent in the face
of destabilising acts emanating from Zaire, Uganda was
consistent in attempting to raise the problem first with Zaire
herself and then with the international community as a whole.
Accordingly, there is no argument that Uganda's "silence"
somehow waived her claims against the DRC concerning the
acts of her predecessor State.
639. Conclusive proof that Uganda repeatedly protested to
both Zaire and the United Nations comes from the DRC itself.
In the Reply, the DRC relies upon her 1December 1996protest
letter to the United Nationsto support her unfounded claim that
Zaire, not Uganda, was a victim of aggression. (DRCR, paras.
6.08, 6.20.) While the DRC's letter falls well short of showing
Ugandan "aggression," itflatly contradicts the DRC's argument
that Uganda never protested Zaire's support of anti-Uganda
rebels. In fact, the very purpose of Zaire's 1 December 1996
letter was to respond to Uganda's accusations of Zairean
supportfor anti-Ugandarebels. It states:
4. Notwithstanding the allegations that the
repeated incursions of the Ugandan army
against Zairian territory represent the right
of pursuit against supporters of the
Democratic Allied Front [ADF], a Ugandan
rebel movement which is alleged to be
supported by the Zairian authorities...
6. Besides, the government would like to
deny categorically that it is supportingADF
which is totally known in Beni and Kasindi,
the Zairean government has neither given
support nor recognition to any Ugandan
rebel movement and does not know the Allied Democratic Front whose action
would have led to, according to Ugandan
sources, the right of hot pursuit on the
Zairean territory. It does not entertain nor
has it authorized any base for Ugandan
Moslem rebels on its territory. The
occupation by the Ugandan troops of the
towns of Kasindi and Beni together withthe
statements by the spokesman of the
Ugandan army confirming that the Uganda
troops would stay on the Zairean territory
until the Zairean government stops
supporting the Uganda Moslemrebels in the
borderarea and re-establishesits authorityin
that region is a pretext to justify non
provoked aggression against the Republicof
Zaire...
9. The governmentof the Republicof Zaire
calls upon the serious attention of the
Security Council andthe Secretary General
of the United Nations on theseriousness of
the facts highlightedabove.
(DRCR Annex 39 (U.N. translation); emphasis added.) The
DRC's contention that Uganda failed ever to raise the issue
shouldbe disrnissedas the nonsenseit is.
(ii) Uganda'sconduct after
the creationof theDRC
did not waive her claim
against Zaire
640. Intenton maintainingher waiver argumentin the faceof
the facts, the DRC next argues that Uganda's behaviorin the
post-Mobutu era constitutes a waiver of her right to invoke
Zaire's international responsibility. (See DRCR, paras. 6.10-
6.15.) Like the others beforeit, thisargumenttoo canbe readily
dismissed. Indeed, Uganda'sconduct following the creation ofthe DRC only confimzs her intent to retain her rights arising
from attacksby anti-Uganda forcesduring the Mobutuera.
641. The DRC's first line of argument is to suggest that
Uganda's prior supportto Laurent Kabila's AFDL movement
involved the waiver of her claim against Zaire. Yet, the
evidence clearly shows that a key reason Uganda lent lirnited
moral and political assistance to the AFDL in 1997 was to
improve securitydong Uganda's border with Zaire. (See UCM
Annex 42, p. 14.) Prior to taking power, Mr. Kabila had
assured Presideni. Museveni that, if he was successful in
capturing power, his new government would work side-by-side
with Uganda to bring peace and stability to the border area.
(See ibid. M)oreover, once Mr. Kabila took power inKinshasa,
Uganda's contacts with the new government were likewise
focused on securingorder in the border region.
642. In fact, Uganda made border securitythe most important
issue in the bilateral meetings between the two States. For
example, the two States held at least two high-level meetings to
discuss Uganda's border security concerns,the first 10 to 13
August 1997in Kinshasa, and the second on 6 to 7 April 1998
in Kampala. (UCM Annex 19; UR Annex 18.) During those
meetings, Uganda insisted that the DRC commit to taking
specific steps to address Uganda's security concerns. Uganda
was particularly worried because many of the same individual
antagonists from the Mobutu era were still in eastern Congo
assisting anti-Uganda rebels. (UR Annex 19,p. 2; Annex 23,
para. 7.1.2.) Thus, far from taking border security issues off the
table, Uganda made very clear that they remained her number
one priority.
643. The DRC next argues that the 27 April 1998 Protocol
constituted a renunciation of Uganda's claim against Zaire.
(DRCR, paras. 6.11-6.13.) This contention is spurious. In fact,
the Protocol was simply a proactive step toward addressing
security problems that had their origin during the Mobutu era,
but that continued to plague relations between the two States.
Read objectively, the Protocol simply shows what Uganda has
repeatedly observed --that border security was a key issue for
her. It was another in a series of important steps intended byUganda to make the DRC Government address the security
problemscreated and exploitedby her predecessor.
(4) Ugarzda'scourzter-claimconceming
Zaire's wronRfuluse offorce against
Uganda isfully supported by the
evidence.
644. As an alternative to her waiver argument, the DRC
makes a half-hearted attempt tosuggest that even if Ugandahas
not waived her counter-claim arising from Zaire's historical
conduct, the counter-claimis not supportedby the factsbecause
(1) Uganda supposedlydoes not have sufficientproof, and (2) it
was Zaire, not Uganda, thatwas the victimof aggression.
645. Uganda's counter-claim is fully supported by the
evidence and is not (as the DRC su gests) "contredite par les
sources neutres et indépendantes."13g (DRCR, para. 6.17.) In
fact, the DRC conspicuously fails to identify any source to
support her argument that "neutral" sources have "refuted
Uganda's claim. In contrast, Uganda's counter-claim is
supported by numerous sources that are both individually and
collectivelyreliable.
646. At the outset, it must be pointed out that theDRC's own
admissions provide prima facie proof of Uganda's counter-
claims. As observed in Chapter II, supra, the DRC has
admitted thatvariousanti-Ugandarebel groups haveoperated in
eastern ZaireICongo since at least 1986, often with the
assistance of Sudan. (See, e.g.,DRCR, paras. 3.10,3.15, 3.16,
3.19, 3.21, 3.22.) Moreover, nowhere in any of the DRC's
numerous filings with this Courtdoes she identify a single step
that the Zairean Government took to prevent the attacks
committed by these groups against Uganda. Together, these
two facts -- the admitted presence of anti-Uganda rebelsin the
DRC and Zaire's failure to take any meaningful steps toexpel
them --are dispositive on the question ofZaire's international
legal responsibility.
133"refuted by the neutral andindependent sources."647. As the Court is well aware, in order to prevail on her
counter-claim concerning Zaire's wrongful use of force,
Uganda need only show Zairean acquiescence in the use of her
territory by anti-Uganda forces attacking Uganda. (See supra,
Ch. III, para. 241.) She need not show command and/or
control. Accordingly, the DRC's own admissions present a
primafacie case in favour of Uganda.
648. In addition to this prima facie case, there is substantial
additional evidence proving that Zaire both tolerated and
directly supported anti-Uganda rebels operating from her
territory. The evidence shows that far from being the victim of
a fictitious Ugandan aggression, Zaire was the real aggressor
against Uganda.
(a) Ug-nda-Zaire relations were
nevercordial
649. The DRC's assertion that relations between Ugandaand
Zaire were warm until "l'intervention de l'Ouganda dans les
affaires intérieures de E'Etatzaïrois"'34 is absurd. (DRCR,
para. 6.18.) From the time President Museveni came to power
in 1986 at the conclusion of a successful popular uprising
against an entreiiched dictatorship, the relationship between
Uganda and Zaire was unfriendly. The tense relationship
between the two States emanated in part from President
Mobutu's fear that Uganda's example might inspire the
Congolese people to rise up against their own entrenched
dictatorship. Uganda's rapid economic growth after 1986,
compared with Zaire's decline, exacerbated PresidentMobutu's
preoccupation with the exarnple his smaller neighbour was
setting. Finally, while President Museveni was increasingly
hailed by the internationalcommunity as the standard-bearer of
enlightened new generation of leaders in Africa, President
Mobutu wasincreasinglyregarded, and treated, as a pariah. His
resentment fermentedfor years, and ledhim to give sanctuaryto
the Ugandan Government's enemies, and later, to provide
military assistance to them. Zaire also formed an alliance with
Sudanto destabilise Uganda,their common enemy.
134"Uganda'sinterventionintoZaire'sinterna1affairs"650. The best "evidence" the DRC can identify in support of
her assertion that the two States enjoyed good relations is a
passage in President Museveni's autobiography in which he
refers to his first meeting with PresidentMobutu immediately
following President Museveni's inauguration in 1986. The
problem with the DRC's use of this passage is that it is
incomplete and is taken out of context. When read in its
entirety, the text clearly shows that President Museveni was
wary of President Mobutu and feared the Zairean leader would
assist rebel groups against Uganda's new government. (UR
Annex Il, p. 172.) Including text that was omittedby the DRC
in italics,President Museveni actuallywrote:
Immediately after the swearing-in, 1 had to
go the same day to Goma, in Zaire, to attend
a meeting which President Mobutu had
called. His motive for inviting us was not
entirely clear. Perhaps he was worried by
theforce of example - thepeople ofUganda
overthrowing the established order by a
popular revolution. Hemay have wished to
appear to be a patron of the changes that
were going on. 1 myself was not entirely
confident of President Mobutu's acceptance
of our regime ....
It was a short, courtes)]meeting and 1 was
soon back in Uganda for we still had to
curry onfighting in the east and in the north
of the count y... The 21"'[battalion] had
remained in Kasese because at the time
there was still adanger of Zaire intervening
in the waragainst us.
(Ibid.;emphasis added.)
651. By 1994, relations between Uganda and Zaire had
soured dramatically. Ugandaand the rest of the international
communitywere outragedby PresidentMobutu's activesupport
for the thousands of ex-FAR and Interahamwe militia fighters
who had taken refuge in Zaire after participating in theslaughter of more than 800,000 Rwandese Tutsis. President
Mobutu not only received these génocidaireswith open arms,
but he also allowed them to re-am and to remobilisefor attacks
both against Rwanda and the Congolese Tutsi population.
(UCMAnnexes 8,9,21,42; UR Annex 8.)13'
(b) Zaire was considered a source of
renional instability
652. Contrary to the DRC's arguments, President Mobutu's
Zaire was never viewed by the internationalcommunity as the
victim of anyone's aggression, least of al1Uganda's. As just
indicated, the Mobutu regime was widely viewed by the
international community as an agitator of regional instability
and ethnic unrest. (UR Annexes 6, 8.) In fact, the Embassy of
Uganda in Kinshasa even discovered hand-written documents
by President Mobutu himself approving a plan to assassinate
PresidentMuseveni. (UR Annex 87,para. 14.)
653. Zaire's purported December 1996 protest of Ugandan
"aggression" to the UnitedNations was a thinly veiled effort by
President Mobutu to deflect criticism of his blatant efforts to
rekindle the Rwandan ethnic warfare and to destabilise the
region. (DRCR,paras. 6.08,6.20 & Annex 39.) Indeed, Zaire's
letter exposed the poor relations between the two States and
Uganda's strongbelief that Zaire was actively supporting anti-
Uganda rebels. (DRCR Annex39.)
654. Notably, the only fallout from Zaire's December 1996
letter was increlzsed pressure on President Mobutu by the
United Nations and member States to institute democratic
reforms and to participate in diplornatic efforts to address the
securityconcerns of his neighbours. (SeeDRCR Annex 101.)
13'(SeealsoURAnriex6,pp. 14,20,42.) (c) The evidence showsthat Zaire
was involvedinarmed attacks
againstUganda
655. The Reply argues that Ugandahas not offered sufficient
evidence to establish the link between the Mobutu regime and
the anti-Uganda rebels based in Zaire. This argument can be
disposed of quickly. First, as previously mentioned, Uganda
need not show that Zaire participated ineach and every attack
against Uganda to establish State responsibilityon this portion
of her counter-claim. It is enough under international law to
show that the attacks emanated from the territory of Zaire with
the knowledge of the Zairean government. Nevertheless,as
discussed below, the evidence offered by Uganda does much
more than show knowledge; it shows active collaboration
between the Mobutu regime and anti-Uganda rebels that is
inconsistentwith the mostbasic normsof internationallaw.
656. Moreover, beyond baldly asserting that Uganda has
failed to prove the connection betweenthe Zairean Government
and anti-Uganda rebels, theReply does not bother to contest the
considerable evidence Uganda offered on this score in the
Counter-Mernorial. (DRCR, para. 6.17.) As a result, the DRC
has effectively conceded the forceof that evidence. (UCM,
paras. 15-23; see especiully UCM Annexes 60, 62, 63, 65.)
Ratherthan revisit thatevidence here, Uganda thus incorporates
it by reference.
657. The connections between the Mobutu regime and anti-
Ugandaelementsare furtherunderscoredby additionalevidence
to which Uganda would like to draw the Court's attention.
First, the Court is familiar by now with the name Mathias
Ebamba, the FAZ and FAC officer charged with the
responsibility of coordinating between the Congolese
Government andthe anti-Ugandarebels. In Chapter II, Uganda
reproduced a letter from the ADF's commander to Col.
Ebamba. (See supra, para. 70; UR Annex 21.) Aside from
showing the re-initiation of contacts between the DRC and the
ADF,the letter testifiesto the close connectionto the rebelsthat
existed when Col.Ebamba servedunder President Mobutu: Dear sir since we heard that you were
admitted this way again, we were so glad to
had thatnews because we still hope thatyou
never change your mind even if you are in
another regimeby now.
On Our side we still continue with Our
struggleof liberatingOurmothercountry 'U'
therefore we are in much need of yourhelp
if you never change your mind. We still
beleave that you'reOurfather and we can't
forget these you did for us and we're
praying to God to reward you a good
success in al1yourjobs.
(URAnnex 21 .)
658. The close relations between the Zairean Government
under President Mobutu and the ADF are also shown by the
statement of Haj.ji Sadat, former Director of Records of the
ADF. In his signed declaration, he testified:
In 1994, the UDPF attacked a training camp
in Busemka and overan it causing survivors
to desperse into areas of Lake Albert in the
Eastern part of Uganda and later on
regrouped in the Eastern part ofCongo.
The group later surrendered to the local
authorities in Bunia who later handed the
same group overto the provincial heads.
In Bunia the group allied with ..the
Congolese anny which later introduced
them to the Central government which then
ordered forthe faciliationof the group on al1
ways.In the talks on the Zairean (Congolese)
government were Gen. Eluki and Col.
Ibamba.
While on the ADF side were Lubinga
Moses, the Cobra(Obed Abahallah Birongi
and Kimeewa Kasangaki (Swaib Kigozi).
From these Contacts and meetings the
followingresulted:
- The Kasindiborder post was tobe used
as theentry port for the recruitsfrom
Kampalawho would beheadingto the
ADF bases in Zaire (Congo). The post
was mannedby military personelland
immigrationofficialswho could arrange
for the safe passage to the mountains.
-
Ground bases were provided in the
northern Kivuregion in areas like Beni,
Kasindi,Lugetse amongothers.
- Also provided was thesecurityto
officers andequipmentwhichcould be
movingfrom oneplace to another
especiallybetween Kampala and Beni.
Others could be from Sudanto theDRC.
- The Zairean governmentalsoprovided
free air space and ground foral1
operations forthe ADF.
- Fundsfrom the Zairean government for
the ADF were also released to the
external wing mainlyin Nirobi.
-
An assortmentof armswas also
despatched by the Zairean government
for the ADF.(UR Annex 85; see also UR Annex 20, p. 2.) Thus, the
evidence points to one conclusion -- that Zaire and the anti-
Uganda forces were in active collaboration to destabilise
Uganda.
659. Indeed, officials of the DRC Government have frankly
admitted these facts in meetings with Ugandan colleagues. For
example, in a security meeting with Ugandan officials in May
1998, the Governor of North Kivu Province in the DRC
acknowledged that "NALU [an anti-Uganda rebel group] had
the support of the Mobutu regime and took their members from
the Congolese youths." (UR Annex25, p. 1.)
660. In addition toshowing that Zaire collaboratedgenerally
with anti-Uganda forces operating from her territory, the
evidence also shows Zairean involvement in particular attacks
against Uganda, including the 13 November 1996 attack on
Mpondwe. (SeeUCM, para. 388.) Although the DRC claims
that theCounter-Memorial presents insufficientevidence to link
Zaire to the Mpondwe attack (DRCR, paras. 6.26-6.31), her
argument is off the mark. Uganda offers several separate,
credible sourcesof evidenceto supporther claim.
661. The first is the statement of the ADF Chief of Staff
recorded by the UPDF 55thbattalion in Lhume, DRC on 17
April 2000. (UCM Annex 60.) This document reflects
intelligence information gathered from a high-ranking officia1
within the ADF who quite clearly had first-hand knowledge of
ADF operations. The DRC's criticism of this evidence rests on
the fact that the statement is not signed and dated. However, it
is important to note that this document was not prepared by
lawyers or in anticipation of litigation, but rather for UPDF
interna1intelligence use to better address the continuing threat
caused by ADF and its supporters.
662. The second source is an officia1Ugandan Government
report prepared by the Ministryof Foreign Affairs thatdescribes
in detail the threats to Uganda's security emanating from
eastern Congo. (UCM Annex 31.) The DRC gives no
meaningful response to the facts contained in this document
except toharp on a minor discrepancy in the number of peopleUganda claims were killed in the 13November 1996attack on
Mpondwe, and to proffer conflicting testimony from Col.
Ebamba. (DRCR, para. 6.27.) Neither of these criticisms is
significant. Although there issome discrepancy concerning the
number of casualties in the Mpondwe attack, it is undisputed
that at least 20 Ugandan citizens lost their lives. As for Col.
Ebamba's self-servingdenial that Zairean forces were involved
in the attack, it is as predictableas it is unreliable.
(5) The evidence supports Uganda'scounter-
clairnsconcerïzingtheperiodfrom May
1997through the2August 1998rebellion
by Congolesearmy unitsagainst
President Kabila
663. The Reply argues that Uganda lacks evidentiary
foundation to support her claim that the DRC Government
under President Laurent Kabila aided and abetted anti-Uganda
forces prior to August 1998. Apparently, only authenticated
documents penned by President Kabila himself would satisfy
the DRC. In the real world of internationalpoliticsand conflict,
and taking account of the DRC Government's obviousdesire to
keep its intrigues secret, Uganda has provided more than
enoughevidenceto prove a violationof international law.
(a) Relations betweenUgandaand
the DRCdeterioratedin 1998
664. To supporther argumentthat she had no motive to assist
anti-Uganda forces,the DRC argues that the two States enjoyed
good relationsuntil August 1998. (DRCR,para. 6.36.) Uganda
does not deny that her relations withPresident Kabila's new
government,startedout well, and that inthe beginningthe DRC
Government cooperated with Uganda in efforts to secure the
border areas where anti-Uganda rebels operated. However, the
DRC's cooperation endedin mid-1998, when President Kabila
turned against Uganda (and Rwanda) and made alliances with
their enemies, including the ADF and the Government of
Sudan. (See UCM, paras. 33-51;supra, Ch. II, paras. 64-88.)
Rather than recapitulate material already presented both in the
Counter-Memorialand earlier in this Rejoinder, Uganda merelyreminds the Court that the DRC herself has admitted to this
change in strategic direction and military alliances. (Supra,
paras. 82-86.) According to one of the most oft-cited sources in
the Reply, the relations between Uganda and the DRC
deteriorated, and:
This deterioration was caused by three
issues: Kabila's quest for regional
leadership, his tolerance of rebel groups
aiming to destubilize the governments of his
neighbours on the DRC territory and his
unwillingness to CO-operateon economic
projects.
(How Kubila Lost His Way, supra, p. 21; emphasis added.)
Thus, the contention in the Reply that the two States enjoyed
goodrelations al1the way through August 1998is ridiculous.
(b) The evidence supports Uganda's
counter-claimthat the DRC aided
anti-U-anda forcesbefore 2
August 1998
665. As set forth in detail in Chapter II, supra, there is
abundant evidence that as President Kabila turned away from
Uganda, he embraced both the anti-Uganda forces based in
eastern Congo and the Government of Sudan. Rather than
renew that discussion here, Uganda incorporates herein her
presentation of evidence set forth in paragraphs 64 to 88 of this
Rejoinder. In Chapter II, the evidence was presented in the
context of Ugandan's contention that her actions constituted
lawful self-defence. To establish DRC state responsibility in
the very different context of Uganda's counter-claim, however,
requires only that Uganda show that the DRC Government
knew about and acquiesced in the activities of the anti-Uganda
forcesoperatingfromCongoleseterritory. (c) The evidence supportsUaanda's
claim that the Connolese
authorities were involvedin
particular attacks againstUnanda
666. The DRC's argument that Uganda cannot prove her
involvement in particular attacks against Uganda must be
rejected. As a threshold matter, Uganda need not show direct
Congolese support in each and every rebel attack to establish
liability on her counter-claim. As shown in the Counter-
Memorial and earlier in this Rejoinder, PresidentKabila and his
government were coordinating closelywith the anti-Uganda
rebels prior to August 1998. As a result, the actions of the
rebels, whether or not there was direct Congolese involvement
in particular attacks, are attributableto the DRCGovernment.
667. Moreover, the evidence clearly suggests direct
Congoleseparticipation in someof the rebels' attacks, including
the attacks on Kichwamba Technical Collegeon 8 June 1998
and on Kasese on 1August 1998. The DRC's criticisms of the
evidence fail when the facts are viewed in their entirety. The
DRC admits that both the Kichwamba Technical Collegeand
the Kasese attacks were carriedout by theADF. At least three
high-ranking Congolese army officers, Col. Ebamba, Col.
Mayala, and the Brigade Commanderin Bunia were facilitating
contacts between the ADF and the DRC Government in
connection with these attacks. (UCM Annex 20, p. 3.) After
the attacks, the perpetrators returned to their bases in Congo,
but no effort was made by Congolese authorities toarrest them
or otherwisehold them to account. (6) The evidencesupportsUganda'scounter-
claimscoveringtheperiod after 2August
1998.
(a) The law
668. The Reply contains the following argument:
La demande reconventionnelle viseencore
le soutien que la RDC aurait apportéaux
rebellesougandais après le2 août 1998.Cet
aspect de la demande est, juridiquement,
fort différentde ceux qui ont été traités ci-
dessus. Quels que soient les faits qui
pourraient êtreétablis,il va en eget de soi
que la RDC ne pourrait voir sa
responsabilité engagée pour un soutien
accordé en réaction à l'aggression armée
dont elle a étévictime de la part de
1'0u~anda.'~~
(DRCR,para. 6.48.)
669. This argument is then restated, but without substantial
change, in thetwo paragraphs that follow. (DRCR, paras. 6.49-
6.50.) In response to this argument, Uganda would accept that
in appropriate circumstances, such action would in principle
constitute a form of lawful self-defence.
(b) The facts
670. Although, as just observed, Uganda accepts the DRC's
contention that in proper circumstances aid to rebel forces can
constitute a form of lawful self-defence, the particular
circumstances of this case do not justify the DRC's aid to the
136"The Counter-claim is also directed at the DRC's support to Ugandan
rebels after 2nd August 1998. This aspect of the Counter-claim is
very different from those that we have dealt with above. Whatever the facts
that may be established itwithout saying that the DRC cannot be held
responsible for support provided as a response to the armed aggression
which it wasbeing subjected to by Uganda."ADF and other anti-Uganda insurgent groups. Put simply, the
DRC cannot show that her aidto these rebels wasa response to
the "armed aggression" of Uganda. To the contrary, as Uganda
painstakingly showedin both the Counter-Mernorialand again
in Chapter II above, the DRC's military alliances with theADF
and Sudan, and the activities of al1three in furtherance of that
alliance,preceded Uganda's decision,on 11September 1998,to
send her army into Congo against the DRC's new allies. Thus,
it was Uganda that was subject to the first armed aggression
from the DRC. (UCM, paras. 33-51; supra, Ch. II, paras. 64-
88.)
671. The Reply argues that Uganda has not proved the
Congolese involvement inspecific attacks after 2 August 1998,
but makes only desultory attempts to undermineUganda's
evidence on this score. (DRCR, paras. 6.59-6.62.) Yet, this
effort, directed at bringing out certainminor date discrepancies,
cannot obscure the facts so clearly set out in the Counter-
Mernorial and the Annexes thereto. (See UCM, paras.54, 95-
97 & Annexes 51,54,67.)
672. Indeed, the Reply essentially admits the DRC's
cooperation withanti-Uganda forces after 2 August 1998in its
Chapter III. In that Chapter, the DRC attempts to discredit
Uganda's abundant evidence of collusion between the DRC
Government and the anti-Ugandarebels in the periodbefore the
2 August 1998 rebellion. (DRCR, paras. 3.75-3.77.) A
principal strategyis to argue that Uganda'sevidence only shows
collaboration after 2 August, not before. (Ibid.) Evenif this
argument were true (which it is not), it would still confirm
Uganda's position that theDRC was indeed workinghand-in-
hand with the anti-Uganda elements after 2 August 1998.
Consequently, in her own discussion of Uganda's proof, the
DRC has effectively admitted the facts supporting this element
of Uganda's claim.
673. Finally, additionalroof of the collaboration between
the DRC and the anti-Uganda forces were provided in the
statement of ADF officer Hajji Sadat, cited above. (Supra,
para. 72.) He declared: Even after the fa11of Mobutu the same
arrangements were maintained for example
in October and September 1999 two flights
were allowed to originate from DRC and
drop arms to ADF bases.
Also arms under the same arrangement were
from Sudan through the DRC up to the ADF
bases.
Also an office was put in place in Kinshasa
to cater specifically for the ADF operations
against.the Ugandan government.
The Kinshasa government had also
organised forrecruits for ADF from Somalia
who would pass through Kinshasa and then
be passed over to the ADFbases.
(UR Annex 85.)
674. As the above discussion makes clear, Uganda has been
subjected to uninterrupted cross-border attacks from hostile
armed bands of irregulars based in Congolese territory since at
least 1986. For almost al1of that period, those attacks have
been carried out with the knowledge, acquiescence, complicity
andlor active assistance of whichever government has been in
power in Kinshasa. Ugandais thus entitled to judgment on this
element of its counter-claim, and to reparation in an amount to
be determined at a later stage in these proceedings. B. The Second Counter-Claim: TheDRC's
Responsibilityfor the AttackOn The
Ugandan Embassv,And TheInhumane
TreatmentOfUgandanDiplomaticPersonnel
AndOther UgandanNationals.
(1) First basis of claim: Article 22 of the
Vienna Conventionon Diplomatic
Relatiorzs(inviolabilityof thepremises of
theMission)
Article 22
1. The premises of the mission shall be
inviolable. The agents of the receivingState
may notenter them, except with the consent
of the head of themission.
2. The receiving State is under a special
duty to take al1appropriate steps to protect
the premises of the mission against any
intrusion or damage and to prevent any
disturbance of the peace of the mission or
impairmentof its dignity.
3. The premises of the mission, their
furnishings and other property thereon and
the means of transport of the mission shall
be immune from search, requisition,
attachmentor execution.
675. Both the DRC and Uganda have ratified the Vienna
Convention on Diplomatic Relations. In any event the content
of Article 22isdeclaratory of general international law. In the
words of one authority:
Inviolabilityin modern internationallaw is a
status accorded to prernises, persons or
property physically presentin the territoryof
a sovereign State but not subject to its
jurisdiction in the ordinary way. The
sovereign State -- under the Vienna Convention the receiving State-- is under a
duty to abstain from exercising any
sovereign rights, in particular law
enforcement rights, in respect of inviolable
premises, persons or property. The
receiving State is also under a positive duty
to protect inviolable premises, persons or
property from physical invasion or
interference with their functioning and from
impairment of their dignity.
(Eileen Denza,Diplomatic Law,2ded., Oxford, 1998,p. 112.)
676. Since August 1998, the DRC Govemment has
intentionally and systematically ignored these legal obligations
by:
(i) Permitting the FAC to storm the Ugandan
Chancery on II August 1998,threatening the
Ugandan Ambassador and others at gunpoint,
and stealingmoney;
(ii) Permitting the FAC to break into and enter
the Ugandan Chancery and the Official
Residence of the Ugandan Ambassador in
September 1998, once more stealing
property,including fourEmbassyvehicles;
(iii) Permitting the FAC again to seize and
occupy the Chancery an
Rejoinder of Uganda