INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING ARMED
ACTIVITIES
ON THE TERRITORY
OF CONGO
DEMOCRATIC REPUBLIC OF CONGO
v.
UGANDA
COUNTER-MEMORIAL
SUBMITTED BY
THE REPUBLIC OF UGANDA
VOLUME!
21 APRIL 2001 TABLE OF CONTENTS
FACTUAL AND POLITICAL CONTEXT ...........................1
PARTI
THEFACTS
CHAPTER I CONGOLESE ARMED ATTACKS
AGAINST UGANDA DURING THE PRESIDENCY
OF MOBUTU SSESE SEKO (1994-1997)•..••••••.•..•••.•..•.•.....
A.The Civil War In Rwanda And Its Aftermath ........... 8
B. President Mobutu's Military Alliances With The
Anti-Uganda lnsurgents And The GovernmentOf
Sudan ........................................................................
.... 10
C. The Congolese Govemment's Military And
Logisticat Support For The Anti-Uganda lnsurgents,
And Its Coordination Of Attacks Against Uganda.;..... l3
D. The Increased Frequency And Destructiveness
Of Armed Attacks In And Against Uganda ................. 15
CHAPTER II THE SUCCESSFUL CONGOLESE
REBELLION AGAINST PRESIDENT MOBUTU,
ANDTHE NEW CONGOLESE GOVERNMENT'S
INVITATION TO UGANDA TO DEPLOY ITS
TROOPS IN EASTERN CONGO (1996-1998).•.•••..•.•..•..1 •.8
A.The War Against President Mobutu And His
Govemment .................................................................. 18
B. President Kabila's Internai Problems ...................... 21
C. President Kabila's Invitation To Uganda To
Deploy lts Armed Forces In Eastern Congo................. 22CHAPTER ID PRESIDENT KABILA'S MILIT ARY
ALLIANCE WITH UGANDA'S ENEMIES, AND THE
RESUMPTION OF ARMED AGGRESSION
AGAINST UGANDA (1997-1998).......................................25
A. President K.abila'sStrategie Change Of
Direction, And His Military Alliance With The
Anti-Uganda Insurgents ................................................ 25
B. The Incorporation Of The Ex-FAR And
Interahamwe GénocidaireInto The Congolese
Army.................................................·······
C. President K.abila'sMilitary AlWithcSudan ...30
D. The ResumptionOf Congolese-Supported
Armed Attacks In And Against Uganda....................... 31
E. The DRC's Armed Attacks Against Congolese
Tutsis ..~··············· 32 _. ··-···············································
F. President Kabila's Expulsionhe RPA And
His Severance OfTies With Rwanda ........................... 32
CHAPTER IV THE DIRECT MILITARY THREAT
TO UGANDA, AND THE AUGMENTATION OF ITS
FORCES IN CONGO (1998-1999).......................................34
A. The Congolese Govemment's Extermination
Campaign Against Its Tutsi Citizens And The
Outbreak:fWar .......................................................... 34
B. The DRC's Escalation Of Aggression Against
Uganda, And lts Command And Control Over The
Anti-Uganda Insurgents................................................ 37
C. The Entry Of ForeignForces Into The War ............ 38
D. Sudan's Entry Into The War And Its
Participation With The DRC In Attacks On Uganda ...39
B. Uganda's Exercise Oflts Right Of Self-Defence ....40
iiCHAPTER V EFFORTS BY UGANDA AND OTHER
STATES TO STOP THE FIGHTING AND ACHIEVE
A PEACEFUL RESOLUTION OF THE CONFLICT
(1998-1999) ...............................................44.......................
......
A. Uganda's Call For A Ceasefire And Negotiated
Settlement ..................................................................... 44
B. The Continued Fighting In Eastern Congo .............. 49
CHAPTER VI THE LUSAKA AGREEMENT AND
ITS IMPLEMENTATION (1999-2001) ............................... 51
A. The Terms OfThe Agreement.. ............................... 51
B. Endorsement Of The Agreement By The United
Nations Secretary-General And The Security
Council ........................................................................
. 57
C. Uganda's Compliance With The Agreement ........... 58
D. The Failure Of The DRC Govemment To
Comply With Its Commitments Under The
Agreement .................................................................... 63
E. The Continuation Of Armed Attacks Against
Uganda........................................................................
..
F. The Change Of Leadership In The DRC And Its
Impact On The Lusaka Process .................................... 73
PARTll
THE PROCEDURAL AND SUBSTANTIVE
ECCENTRICITIES OF THE MEMORIAL
CHAPTER VII THE ABSENCE OF ADEQUATE
PROOF .....................................................77.................
............
A. Introduction .............................................................. 77
B. The Absence OfDocumentary Evidence
Relating To Imputability .............................................. 78
l1l C. The Policy In Respect OfProofDeclared In The
Text OfThe Memorial.................................................. 81
D. The Content Of The Memorial ................................ 85
E. Reliance By The DRC Upon Matters Of Public
Knowledge .................................................................... 95
F. The Burden ofProof and Standard ofProof ...........96
G. Conclusion ............................................................... 98
CHAPTER VDI THE PROCEDURAL ANOMALIES
EXH:IBITED DYTHEMEMORIAL...................................9!)
A Introduction.......................................99.....................
B. The Absence Of Any Or Any Adequate Proof Of
The Imputability Of The Conduct Alleged To The
Respondent State .......................................................... 99
C. The Fundamental Confusion In The Memorial
Between The Proof OfVwlations Of Legal
Obligations And The Issue Of Quantum OfDamage 102
D. There IsNo Link In The Memorial And
Submissions Between.The Bases Of Claim And The
ProofOfDamage ........................................................ 104
E. The Consequence Of The Breaches Of The Rules
Of Court: The Role Of The Claimant State As An
lneffective Appearing State ........................................ 107
iv PART III
THE ROLE OF INTERNATIONAL ORGANISATIONS
CHAPTER IX The Role of the Political Organs of the
United Nations ............................................111.......................
A. The General Issue: The Probative Value Of
Determinations OfFact By The Political Organs.......Ill
B. Resolutions Of The Security Council Invoked By
TheDRC ..................................................................... 114
C. Statements Of The President Of The Security
Council .......................................................................
120
D. Reports By The Secretary-General.. ...................... 121
E. Reports Of The Special Rapporteur Of The
Commission On Human Rights.................................. 121
F. Conclusion ............................................................. 122
CHAPTER X THE ROLE OF THE ORGANISATION
OF AFRICAN UNITY ••••••••••.••••••.•••
.•.•••••••.•••.
1...•...•.••
CHAPTER XI THE ROLE OF THE SOUTHERN
AFRICAN DEVELOPMENT COMMUNITY ••••••...•••••1 •2•6
CHAPTER XII OTHER REGIONAL SUMMIT
MEETINGS ..................................................130...................
...
CHAPTER XIII THE ROLE OF THE EUROPEAN
UNION ........................................................................
........... 131
PART IV
QUESTIONS OF CAUSATION AND IMPUTABILITY
CHAPTER XIV THE IMPUT ABILITY OF CERTAIN
INCIDENTS TO UGANDA ................................................. 134
CHAPTER XV THE ROLE OF RWANDA••••.••..•..•••••.. lSO•
A. The Issues .............................................................. 150
v B. The Relevance Of Security Council Resolution
1304 (2000) ................................................................ 151
C. The Effect OfThe Legal Interest Of Rwanda On
The Admissibility Of Issues Concerning The Events
In Kisangani................................................................ 152
D. The Necessity To Safeguard The Judicial
Function ...................................................................... 156
E. The Principle OfProcedural Faimess ..·-····-········58
F. Conclusions............................................................ 159
PART V
CIRCUMSTANCES PRECLUDING WRONGFULNESS
AND RELATED ISSUES
CHAPTER XVI THE LEGAL ASPECTS OF THE
PRESENCE OF THE UGANDA PEOPLE'S
DEFENCE FORCES ON THE TERRITORY OF THE
DRC .............................................................1...........
..........1
A. The Express Invitation And Consent Of The
Government Of The DRC .......................................... 161
B. The Multilateral Recognition By The States Of
The Regiori That Uganda Has Security Concems
Relating To The Endemie Civil Strife In The DRC ... 164
C. The Recognition Of The Security Concems Of
Uganda By The Govemment Of The DRC In April
1999 ........................................................................
.... 169
D. The Multilateral Recognition OfUganda's
Security Concems Are Codified In The Lusaka
Ceasefire Agreement Of 10 July 1999....................... 174
E. The Multilateral Recognition OfUgandan
Security Concems: The Pertinent Resolutions Of
The Security Council .................................................. 177
vi F. The Purpose And Character Of The Ugandan
Presence ...................................................................... 178
G. The Factual Assertions In The Memorial Of The
DRC ........................................................................
.... 179
CHAPTER XVII LAWFUL SELF-DEFENCE: THE
RELEVANCE OF ARTICLE 51 OF THE UNITED
NATIONS CHARTER .............................................ISO.........
A. The Position OfThe Uganda Government.. .......... l80
B. The Long-Term Problem OfBorder Security,
1990- Apri11998 ....................................................... 181
C. The Short-Term Problem OfBorder Security,
April1998 To The Present ......................................... 187
D. The Legal Elements: The Application Of Article
51 OfThe United Nations Charter ............................. 190
E. The Application Of The Law To The Facts........... 211
CHAPTER XVIII THE STATE RESPONSffiiLITY
OF THE DRC AND THE COUNTER-CLAIMS OF
THE REPUBLIC OF UGANDA ......................................... 217
A. The State Responsibility Of The DRC .................. 217
B. The Availability Of Counter-Claims ..................... 218
C. The Counter-Claims............................................... 219
D. Specifie Examples Of Congolese Aggression .......221
E. The Attack On The Ugandan Embassy And The
Inhumane Treatment OfUgandan Diplomatie
Personnel And Other Ugandan Nationals................... 224
F. The DRC's Violations Oflts Obligations Under
The Lusaka Agreement............................................... 228
SUBMISSIONS .................................................231.................
viiPERSONALIA AND ABBREVIATIONS .......................... 232
INDEX OF ANNEXES IN
CHRONOLOGIC.ALORDER............................................241
MAPS
Mapl. The Democratie Republic Of Congo And
Neighbouring States
Mapll. PlacesIn Uganda Mentioned InThe Counter
Memorial
Mapill. PlacesIn The Democratie Republic of
Congo Mentioned InThe Counter-Memorial
viii FACTUAL AND POLITICAL CONTEXT
1. This Counter-Memorialis being filed pursuant to
the Order made by the President of the Court on 21 October
1999 fixing 21 April2001 as the time-limit for the :filingof the
Counter-Memorial of the RepublicofUganda.
2. Ugandais pleased finallyto have the opportunity
to respond formally to the unfounded charges launched against
it by the Democratie Republic of the Congo (DRC) in the
Applicationof23 June 1999 and the Memorialof21 July 2000,
~d to present evidence establishing that the party in this case
thatis guilty of armed aggression is the DRC itself, and that
Uganda is its victim.
3. The evidence shows that Uganda has been the
victim of armed aggression emanating from Congo
continuouslysince 1994. For seven years, without interruption,
Uganda has been subjected to devastating cross-border attacks
on a regular basis from armed insurgents based in eastern
Congo. Except for a brief period, their activities have been
coordinatedby, and subject to the command and control of, the
Congolese govemment. The purpose of these attacks has been,
and remains, to terrorise northern and western Uganda, seize
territory, and destabilise and ultimately overthrow thedan
govemment by force of arms.
4. Various anti-Uganda insurgent groups - sorne
professing loyaltyto IdiAmin, the notorious former Ugandan
dictator now exiled in Saudi Arabia - have operated from
Congolese territory during this period, with the full support
successive Congolese govemments headed, respectively, by
Presidents Mobutu Ssese Seko, Laurent Kabila and Joseph
Kabila. These armed groups cali the'mselves: the Allied
Democratie Forces (ADF); Lord's Resistance Army (LRA);
Uganda National Rescue Front II (UNRF Il); Former Uganda
National Army (FUNA); West Nile Bank front (WNBF); and
National Army for the Liberation of Ugahda (NALU). The
Govemment of the DRC has officially aclmowledged the
presence of ali ofthese groupson its territory.
1 5. The damage inflicted on Uganda by the
Congolese-based insurgent groups and their Congolese
government sponsors is both enormous and horrendous.
lllustrative is the 8 June 1998 attack on Kichwamba Technical
School, in the Kasese District of western Uganda. ADF
terrorists, armed and directed by the Congolese government,
crossed into Uganda and herded scores of students into their
dormitories, locked the buildings and set them on fire. More
than 50 bumed to death, at least that many were shot and killed
trying to escape, and over 100 were abducted and forced to
retum with the attackersto their Congolese sanctuaries. In ali,
such cross-borderattackshave killed thousands ofUgandans
the vast majority innocent civilians 1ike the students at
Kichwamba- displacedover 120,000persans, and decimated
the economy ofnorthem and western Uganda. In contrast with
the DRC's Memorial of 21 July 2000 - which alleged a
number of "attacks" by Ugandan armed forces without
supplying any evidence that these "attacks" occurred, or that
Uganda forces were responsible- the events set forth in this
Counter-Memorial, including the identification of the
responsible parties, are fully evidenced by contempora.D.eous
official documents and reliab1etestimony from knowledgeable
and objective sources, presented in the annexes submitted
herewith.
6. As described below, the evidence demonstrates
that Uganda's responses tothese armed attacks from Congolese
territory have always been measured, and fully consistent with
international law. Between 1994 and late 1997, Uganda
confined its actions to its own side of the Congo-Uganda
border, by reinforcing its military positions along the frontier
and doing its best to repel the cross-border assaults that grew
increasingly frequent and destructive during this period. In
May 1997, at the invitation of the DRC government, Ugandan
troops crossed into eastern Congo and established bases on
Congolese territory, for the purposef arresting the activities of
the anti-Uganda insurgents who were operating in that region,
and preventing further attacks against Uganda. This invitation
was reaffirmedin a written Protocolof 27 April 1998,executed
by the internai security ministers of both states, which
authorised theUgandan armed forces to maintain a presence in
2eastern Congo to combat the insurgents, by means of ')oint
action" with Congolesegovernmentforces.
7. White this Protocol was stili in effect, and
without provocationby Uganda, the DRC government suddenly
reversed course and entered into a military alliance with the
very same anti-Uganda insurgents it had committed itself to act
against jointly with Uganda. At the same time, the DRC
government entered into a military alliance with the
Government of Sudan, which had long been hostile to Uganda.
The express purposeofthese allianceswas to attack Uganda. A
Sudanese army brigade, consisting of 2,500 troops, arrived in
Congo andjoined the Congolese government army and the anti
Uganda insurgents in a combined military force of more than
15,000, whose objective was to overwhelm the smali Ugandan
military presence in Congo, seize control of the border region,
and use it as a staging ground for major armed assaults in and
against Uganda. In response to this grave threat, and in the
lawful exercise of its sovereign right of self-defence, Uganda
augmented its forces in Congo, and stopped the
Congolese/Sudanese/insurgent attackers before they reached
Uganda's borders.
8. The fighting was halted by the Lusaka Ceasefire
Agreement of 10 July 1999, signed by the Heads of State of ali
of the States that were fighting in Congo, including President
Laurent Kabila of the DRC and President Yoweri Museveni of
Uganda. The Lusaka Agreement recognised the right of
Uganda to maintainits troops in Congo for its own self-defence
pending the disarmament and demobilisation of ail anti-Uganda
insurgents located on Congolese territory. It provided for the
orderly withdrawal from Congo of Ugandan and ali other
foreign military forces, but not until after the disarmament and
demobilisation of the insurgents who threatened Uganda's
security. The Lusaka Agreement remains in force. Ali of the
parties, including Uganda and the DRC, have repeatedly
reaffirmed their commitments to it. And the United Nations
Secretary-General and Security Council have consistently
supported it and called it the only viable process for achieving
peace in Congo and the region. Uganda has pledged to comply
with it, and to withdraw alif its remaining troops from Congo
3according to its tenns, upon the stipulated disannament and
demobilisationof the insurgent groups.
9. Uganda basnever had territorial ambitions in
Congo, and has never asserted any claim to any part of
Congolese territory. The demarcation of the Congo-Uganda
border is entirely undisputed. Uganda's limited military
presence in Congo has been pursuant to the invitationf the
DRC govemment, for the sole and legitimate purpose of its
necessary self-defence, and as sanctioned by the Lusaka
Agreement, with which Uganda is, and has pledged to remain,
in full compliance. Accordingly, as demonstrated below,
Uganda's actions have been, and are, fully consistent with
international law.
1O. The present Counter-Memorial of the Republic
ofU ganda is organised as follows:
PARTI
THEFACTS
Chapter 1 Congolese Anned Attacks Against Uganda
During The Presidency Of Mobutu Ssese Seko
(1994-1997).
Chapter II The Successful Congolese Rebellion Against
President Mobutu, And The New Congolese
Govemment's Invitation To Uganda To Deploy
Its Troops In Eastern Congo (1996-1998).
Chapter ill President Kabila's Military Alliance With
Uganda's Enemies, And The Resumption Of
Armed Aggression Against Uganda (1997-
1998).
Chapter N The Direct Military Threat To Uganda, And The
Augmentation Of Its Forces In Congo (1998-
1999).
Chapter V Efforts By Uganda And Other States To Stop
The Fighting And Achieve Peaceful Resolution
OfThe Conflict (1998-1999).
4Chapter VI The Lusaka Agreement and its hnplementation.
PART II
THE PROCEDURAL AND SUBSTANTIVE
ECCENTRICITIES OF THE MEMORIAL
ChapterVII The Absence Of AdequateProof.
ChapterVill The Procedural Anomalies Exhibited By The
Memorial.
PART III
THEROLEOF
INTERNATIONAL ORGANISATIONS
ChapterIX The Role Of The Political Organs Of The United
Nations.
Chapter X The RoleOf The Organisation Of AfricanUnity.
Chapter XI The Rote Of The SouthernAfrican Development
Community.
ChapterXII OtherRegional SummitMeetings.
ChapterXill The Role Of The EuropeanUnion.
PART IV
QUESTIONS OF CAUSATION AND
IMPUTABILITY
Chapter XIV The hnputability Of Certain Incidents To
Uganda.
ChapterXV The Role Of Rwanda.
5 PART V
CIRCUMSTANCES PRECLUDING
WRONGFULNESS AND RELATED ISSUES
Chapter XVI The Legal Aspects Of The Presence Of The
Uganda People's Defence Forces On The
Territory Of The DRC.
Chapter XVII Lawful Self-Defence: The RelevanceArticle
51 Of The United Nations Charter.
Chapter XVIIITheState Responsibility Of The DRC And The
Counter-Claims Of The Republic OfUganda.
6 PARTI
THEFACTS
7 CHAPTERI
CONGOLESE ARMED ATTACKS AGAINST
UGANDA DURING
THE PRESIDENCY OF MOBUTU SSESE SEKO
(1994-1997)
A. The Civil WarIn Rwanda And lts Aftermatb
11. The Congolese government's military alliance
with theanti-Ugandainsurgent groups grew out of the civil war
in Rwanda in 1994, where Congo (then Zaïre) and Uganda
supported different outcomes.· Pre8ident Mobutu gave
substantial military assistance to the government of President
Juvenal Habyarimana to help it crush the opposition Rwandan
Patriotic Fron(RPF). Uganda gave political support to the
RPF's cali for a negotiated settlement and a power-sharing
arrangement that would guarantee the rights of ali ethnie
groups, includingboth the Hutus ande Tutsis. In Apr1994,
as the RPF advanced on Rwanda's capital, the government's
armed for.ces (the FAR) and government-controlled
"lnteraha m lti~s,composed ofviolentHutu extremists,
launched a massive campaign of genocide against the Tutsi
population. Between April and July 1994, they slaughtered
more than 800,000 unarmedcivilians (as well as.a contingent of
United Nations peacekeepers who tried to stop the violence),
until the RPF:finallycaptured power and ended the massacre.
More than a million Hutus, fearing revengey the RPF, fied
·across the frontier to eastern Congo, where they settled in
refugee camps close to the border. Among them were tensof
thousands of armed génocidaires- ex-FAR and Interahamwe
who had carried out the abominable mass slaughter of the
country's Tutsi populace. (Uganda Counter-Memorial
(''UCM")Annex 9, p. 39).
12. President Mobutu continued Congolese
government support for the ex-FAR and Interahamwe in exile.
lnsteadof disarming them, he reorganised them and helped
them establishtight control over the refugee camps. He rejected
calls by the new governmentin Rwanda, echoed by Uganda and
most of the international community, to deliver the leading
8perpetrators of the genocide for trial by the United Nations
established International Criminal Tribunal for Rwanda. He
refused to repatriate the remainder of the Hutu refugees to
Rwanda, where the govemment pledged there would be no
reprisais. And he steadfastlyresisted appeals to relocate farther
from the border the refugee camps (especially the ones at
Katale, Kibumba and Mugunga) that the ex-FAR and
Interahamwe were increasingly using as bases for cross-border
attacksagainstRwanda and Uganda(whichthey saw as the new
Rwandan govemment's main ally). Instead, President Mobutu
pennitted these elements to conduct military training activities
and stockpile anns on Congolese territory, and he provided
them with military and logistical assistance, for the ultimate
purpose of helping them retum to power in Rwanda. (UCM
Annex 7, pp. 3-5; UCM Annex 12, p. 1; UCM Annex 48, p. 2;
UCMAnnex 66,p. 4).
13. With President Mobutu's support, the ex-FAR
and Interahamwe expanded their military strength dramatically
between 1994 and 1996, increased the size and frequency of
their attacks inside Rwanda and Uganda, and became a serious
military threato both countries. They were also a menace to
the Tutsi population native to eastern Congo, where the camps
were located. In early 1996, the ex-FAR and Interahamwe
launched a new genocide campaign, this time against the
Congolese Tutsis. They slaughteredhundreds of Tutsi civilians
in Masisi, and caused the remainder of the population, sorne
17,000, to flee to Rwanda. In August 1996, they attacked
another Congolese Tutsi community, known as the
Banyamulenge, and murdered hundreds more. President
Mobutu's govemment did nothing to stop these ethnie
massacres; instead it heaped fiirther persecution upon the
Banyamulengeby issuing an expulsion order requiring them to
leave the country within a week, despite their being Congolese
citizens. (UCM Annex 8, pp. 15-19; UCM Annex 14, p. 9;
UCMAnnex 21, pp. 8-10;UCM Annex 66, p. 4).
14. Thus, the Rwandan civil war did not end when
President Habyarimana's govemment collapsed in July 1994
and the RPF took power in Rwanda. The same forces- the
RPF (now the RPA, for Rwandan Patriotic Anny) on one side
9and the Congo-based ex-FAR and Interahamwe on the other
continued to fight each other (and are still fighting each other,
as of the presentation of this Counter-Memorial). Since July
1994,however, the majority of the fighting has taken place, not
inside Rwanda, but across the Rwanda-Congoborder and inside
Congo itself. Nor did the faUof the Habyarimana government
and the triumph of the RPF end the tensions between Congo
and Uganda. To the contrary, from 1994 to 1996 the conflict
deepened, as President Mobutu continued to support the
military and parami1itary forces of the former Rwandan
government, exiled in eastern Congo, and Uganda forged close
ties with the new Rwandangovernment. PresidentMobutu, like
his ex-FAR and Interahamwe allies, saw Uganda as the new
Govemment m Rwanda's main supporter, and therefore as a
major obstacle in his path to ousting that government and ·
returning the former government to power in Kigali. For this
reason, President Mobutu and the ex-FAR and Interahamwe
jointly resolved to bring military pressure on Uganda, to tie it
down with the need to protect its own territory; and thereby to
render it incapablef comingto the aid ofRwanda.
B. President Mobutu's Military Alliances With The
Anti-Uganda Insurgents And The Govemment Of
Sudan
j
15. President Mobutu's chosen means of exercising
military pressure againstganda were the disparate groups of
anti-Uganda insurgents operating, until then, sporadically and
ineffectively from scattered positions in the Rwenzori
Mountains along the Congo-Uganda border. Such groups had
existed intermittentlysince 1986,when the present Government
of Uganda came to power. They were able to operate
unimpeded in this region becauseof its mountainous terrain, its
remoteness from Kinshasa (more than 1,500 kilometers), and
the almost complete absence of central governmentpresence or
authority in the region during President Mobutu's 32-year term
in office.Uganda protested to President Mobutu on numerous
occasions about the existence of these groups and their
activities, and his government'sfailure to take action to restrain
them. Bilateral meetings had been held and promisesmade, but
the Congolese government never fulfilled its obligation to
10prevent its territory from being used to carry out attacks against
a neighbouring State. Nevertheless, prior to 1994, the Congo
based anti-Uganda insurgents were not a major threat, and
Uganda's response to them, other than filing periodic protests
with President Mobutu, was to strengthen its border defences
against occasional insurgent attacks.See, e.g., UCM Annex 1;
UCM Annex 3,pp. 1-2;UCM Annex 11).
16. Throughout this period, however, the anti-
Uganda insurgents received direct support from the Government
of Sudan. Hoping to spread its radical Islamic ideology to
Uganda, Sudan bad allied itself with ldi Amin during the dark
years when the tyrant presided over a bloodthirsty dictatorship
that ruthlessly repressed the Ugandan people; and it gave
sanctuary to most of Amin's ministers, army officers and
soldiers when Ugandans finally rose up and chased them out of
the country. Sudan took a hostile and aggressive stance against
Uganda's present government from the beginning. Engaged in
a decades long civil war provoked by its subjugation of its own
Afr:ican population - for which it bas been condemned
repeatedly by the international community (UCM Annex 38) -
the Sudanese government was deeply troubled by the example
that Uganda, its neighbour directly to the south, provided to its
rebellious African citizens: an African-led state that had
overthrown a horrible dictatorship and established a broad
based, non-sectarian government that was tolerant and inclusive
of all political, religious and ethnie forces in the country. Thus,
Sudan endeavored to weaken Uganda by organising, training,
arming and giving sanctuary to insurgent groups that would
attack Uganda often and hard enough to destabilise large
portions of the country, impede economie development, and
negate its status as a "good example," or inspirational model,
that could be emulated by Sudan's African population. (UCM
Annex 31, p. 10; UCM Annex 78, p. 1).
17. The largest anti-Uganda insurgent groups
organised by the Govemment of Sudan were the West Nile
Bank Front (WNBF) and the Lord's Resistance Army (LRA).
The WNBF, which was initially based in Juba, in southem
Sudan, was commanded by Taban Amin and Col. Juma Oris -
respectively, Idi Amin's son and Minister of Information. With
11Sudanese government support, it eventually grew to 7,000 men.
The LRA, also based in southem Sudan, terrorised civilians in
Uganda's northem districts, and eamed an international
reputation for especially barbarie attacks on innocent civilians,
which typically included mutilationof limbs, tongues, ears and
other body parts; immolation; rape and enslavement of young
girls; and abduction of children. (UCM Annex 15, p. 3). It
numbered 2,000. These groups caused serious problems for
Uganda, especially in the northem part of the country, adjacent
to the Sudanese border, and economie development there was
almost totally arrested. In addition to the WNBF and LRA,
Sudan also supported anti-Uganda groups based in Congo,
sorne ef which consisted of former Amin soldiers and
govemment officiais who had fled to that country. Sudan
financed, trained and supplied them as the Former Uganda
National Army (FUNA), the Uganda National Rescue Front TI
(UNRF ll)and the National Army for the Liberation ofUganda
(NALU). (UCM Annex 31, pp. 10-13; UCM Annex 66, p. 4)
Ail three claimed to be fighting to overthrow Uganda's
government. As indicated, however, the Congo-based groups
were unable to inflict major damageon Uganda prior to 1994.
18. The situation changed dramatically in 1994 and
thereafter, when President Mobutu and his ex-FAR and
lnterahamwe allies decided to make use of the Congo-based
anti-Uganda insurgents to tieUganda down defending its own
territory, and thus prevent it from coming to the aidRwanda.
They hoped that by cutting off the Rwandan government from
its main ally, they might succeed in isolating and destroying it,
and in restoring the former government to power in Kigali.
They attempted to execute this plan by two means. First, they
began to provide arms, training and logistical support to the
anti-Uganda insurgents directly, to coordinate their military
activities, and to engage in joint operations against Uganda.
Second, acting on the theory that ''the enemy of my enemy is
my friend," President Mobutu entered into an anti-Uganda
military alliance with the Government of Sudan, which he
invited to occupy and utilise airfields in northeastem Congo for
two purposes: delivering arms and other supplies to the
insurgents; and conducting aerial bombardment of Ugandan
towns and villages. With President Mobutu's approval, Sudan
12also established new bases for the WNBF and LRA inside
Congo, across the border from northwestern Uganda, especially
in Garamba National Park. (UCM Annex 48, pp. 1-3; UCM
Annex 66, p. 4).
C. The Congolese Government's Militarv And
Logistical Support For The Anti-Uganda Insurgents,
And lts CoordinationOf Attacks Against Uganda
19. As reported by Lyavala Ali, a founding member
of the Allied Democratie Forces (ADF), the successor
organisation to NALU, in 1995 "[w]e established a base at
Bunia [in eastern Congo, 30 kilometers from the Uganda
border]. Ali this was under the direct authority of President
Mobutu ...." As the ADF began to grow, "we opened up a
camp at Buhira [20 kilometers from the border]," which was
''where we were carrying out training for most of the
combatants. Our main bases were those at Buhira, Bunia and
Beni [50 kilometers from the border]. We continued getting
support from President Mobutu until he was overthrown by
Kabila." (UCM Annex 71, p. 1). This support included the
Congolese/Zairean govemment's coordination of the ADF's
military operations against UgandAs reported by Bwambale
Ali, the ADF's Deputy Secretary-General, ''During Mobutu's
regime,lt's Zairean troops who were providing us with security
and they were the onecoordin~ otronerations. They were
the ones escorting our commanders to Kinshasa for meetings
with Mobutu and Sudanese govemment officiais." Congolese
coordination of operations was routinely performed at the
ADF's headquarters in Beni: "Zaïre generais never visited our
hattie field but they could always come to coordinate our
operations at our Hqs in Beni." (UCM Annex 62). This is
confirmed by Vihamba Kule, Director of the ADF's Extemal
Security Organization: "During the reign of Mobutu, very
many military generais used to visit our camps, most especially
Beni where the Hqs of the ADF were." (UCM Annex 63, p. 2).
Officers of the Zairean Armed Forces (FAZ) also coordinated
the military activities of the WNBF"Itshould be noted that
Zaïre Govt forces are involved though not physically. There is
definitely coordination with WNBF of [Col. Juma] Oris."
(UCM Annex 5, p. 2). A letter from the WNBF High
13Command to Major Motindo of the F AZ further evidences the
military coordination between the AZ and the WNBF: "This
letter will cement our good relationship existing since our
movement started. We shall continue communicating through
our coordinator, Yusuf Abdallah of Imgbokolo, in case of
delicate security issue." (UCM Annex 4).
20. Both the ADF and the WNBF received their
arms from the Sudanese and Congolese governments. As
reported by the ADF's Deputy Secretary-General:
"At fust wehad got 200 gunsfrom 'NALU' [one
of the original Congo-based anti-Uganda rebel
groups supported by Sudan]. Later on, our
commanders went to Sudan and got sorne guns
i.e 82 mm [and] 60 mm mortars, 125 mm
[machine] guns. (GPMGs, RPGs, MMGs,
LMGs, MGLs, and SMGs, grenades, mines and
ammunitions. These weapons were being ferried
on Zaïre government trucks escorted by Mobutus
soldiers to our location in Buhira." (UCM
Annex 62, p.1).
WNBF documents, including minutes of a meeting of "eiders"
dated 19 August 1995, confum the Sudanese government's
provision of arms to the WNBF. (UCM Annex 2, p. 1). An
official Ugandan military intelligence report from this period
describes the"massive logistical and ground support offered to
these rebetsby both the Sudanese and Zairean govemment .... "
(UCM Annex 10, p. 1). A report by the Ugandan delegation to
the second Uganda/Zaire meeting details the collaborationof
the Sudanese and Congolese govemments in recruiting,
training, arming and dispatching WNBF forces to attack
Uganda:
"In a bid to raise manpower, the sudan
govemment with the authority/knowledge of
Zaïre Govt has [through] her allies been
mobilising, recruiting and transporting Ugandan
youth and soldiersof the defunct Uganda anny
[i.e., ofldi Amin] ... from refugee camps in N.E.
14 HAUT Zaïre into West Nile Bank Front
(WNBF) Uganda rebel organisation of Lt Col
Jurna Oris. These WNBF recruits and others
mobilized from N. Western Uganda cross into
Sudan through IMGOKOLO [INGBOKORO]
and BAZI.. .. [T]rained West Nile Bank rebels
leave the Sudan, and enter Zaire through Baazi
and go through Mbokolo, Gombe and Aruu and
enter into Uganda with anti-tank mines through
our Western border with Zaire." (UCM Annex
3, p. 1).
21. Manpower for the anti-Uganda insurgents was
also raised from among the ex-FAR and lnterahamwe
génocidairesheadquartered in refugee camps in eastern Congo.
Anti-Uganda insurgent leader Hajji Kabeba, in particular,
established "links with the Interahamwe officers who mak:e
joint planning against Uganda withim. He is always at Gatare
Camp, the headquarters of Interahamwe in Zaïre." (UCM
Annex 6, p. 2). Kabeba "enjoys cooperation of the
Interahamwe whorn he bas assured of leadership to kill Tutsis in
Uganda and Rwanda." (UCM Annex 5, p. 2). To this end, ex
FAR, Interahamwe and anti-Uganda insurgents were brought
together for combined military training exercises at Garamba
Park, in the northeast corner of Congo, adjacent to its borders
with Sudan and close to the Ugandan frontier. Training was
provided by Sudanese and Congolese military officers. (UCM
Annex 66, p. 4).
D. The Increased Freguency And Destructiveness Of
Armed Attacks In And Against Uganda
22. The result of combined Congolese and Sudanese
govemment support, and ex-FAR and lnterahamwe manpower,
for the anti-Uganda insurgents was a dramatic increase in their
troop strength and military effectiveness, which manifested
itself in an equally dramatic rise in the nurnber, frequency and
destructiveness of their armed attacks inside Uganda. In
support of sorne of these attacks, the Sudanese air force carried
out bombing missions inside Uganda. (UCM Annex 31, pp. 10,
13). By 1996, the insurgent attacks across Uganda's northern
15and western borders were singularly bold and effective. On 22
April of that year, just prior to Uganda's presidential elections,
120 ADF insurgents and Interahamwe crossed the border into
western Uganda and attacked Kisoro, killing seven Ugandan
soldiers and three civilians. On 29 May, over 100 WNBF
insurgents entered Uganda from Congo and blew up a bridge at
Maracha. On 4 July, the ADF crossed into Bugoye, bumed
bouses and killed threeUgandans. (UCM Annex 66, pp. 4-5;
UCM Annex 91, pp. 6-7). As serious as these attacks were,
they proved to be a mere buildup to the major assault
coordinated by the Congolese and Sudanese govemments, and
carried outby the ADF on 13 November 1996. A massive and
heavily-anned force of more than 800 insurgents launched a
sophisticated, three-pronged assault that overwhelmed the
Ugandan customs post at Mpondwe and the town of Bwera in
western Uganda, and simultaneously attacked the nearby town
of Karambi. The objective, developed in collaboration with
Congolese and Sudanese military officers, was to seize and hold
the major regional centerof Kasese, and especially its airfield,
which the Sudanese air force would then use to resupply the
insurgents for their planned assault on Mbarara, the biggest and
most important city in western Uganda. The insurgents
managed to hold Ugandan territory for two days, during which
they killed more than50 people, most of them civilians, before
the Uganda People's Defence Forces (UPDF, Uganda's national
anny) drove them back across the border into Congo. (UCM
Annex 31, p. 8; UCM Annex 66, p. 5; UCM Annex 91, pp. 10-
13). As reported by the ADF's Chief of Staff, immediately
prior to this attack and preparation for it, the Congolese and
Sudanese govemments collaborated to provide the insurgents
with ''more than 1500 AK 47, 20 12.7mm AAC, GPMGs,
RPGs, G2s, 60/ 82 mm mors and a lot of assorted ammo."
(UCM Annex 60, p. 6). ADF units were transported by F AZ
troops in AZ vehicles from various camps in eastern Congo to
the staging point for the attack.
23. Thus, by late 1996, Uganda was under siege by
an unholy alliance consisting of anti-Uganda insurgents faith:ful
to former dictator Idi Amin (ADF and WNBF, as weil as FUNA
and UNRF Il);the perpetrators of the Rwandan genocide (ex
FAR and Interahamwe); the Govemment of Sudan, widely
16condemned by the international cornmunity for its sponsorship
of international terrorism, as well as its brutal treatment of its
own African population; and the brutal and corrupt Congolese
dictatorship of President Mobutu. Uganda resisted their
aggressions as best it could - essentially by reinforcing its
borders with more troops and weaponry, and bracing itself to
endure and repel larger and more frequent armed attacks
emanatingfrom Congo and Sudan.
17 CHAPTERII
THE SUCCESSFUL CONGOLESE REBELLION
AGAINST PRESIDENT
MOBUTU, AND THE NEW CONGOLESE
GOVERNMENT'S INVITATION
TO UGANDATO DEPLOY ITS TROOPS IN
EASTERN CONGO (1996-1998)
A. The War Against President Mobutu And His
Government
24. Uganda was not the only victim of Congolese
aggression during the Mobutu period. Rwanda, too, was
plaguedby armed attacks emanating from Congolese territory,
which were carried out by the ex-FAR and Interahamwe in
close coordination with President Mobutu and his government.
By virtue of their sheer numbers (more than 40,000), as well as
their malicious mission to annihilate every last Tutsi in Central
Africa, the ex-FAR and Interahamwe constituted as great a
threat to Rwanda as the allied Congolese and Sudanese
government forces and the anti-Uganda insurgents did to
Uganda. In the face of this aggression, Rwanda took a more
proactive posture than Uganda. In 1996, it created a military
forceof 2,000 Congolese Tutsis, who bad sought refuge in
Rwanda after the Masisi massacre, and incorporated them into
the Rwandan Patriotic ArmyRPA) T~en, when the ex-FAR
and Interahamwe, supported by the FAZ, attacked and
threatened exterminationthe Banyamulenge, Rwanda sent its
forces to protect them and, together with severa! thousand
Banyamulenge fighters, resoundingly defeated theidaires
and Congolese soldiers. The combined RPA/Banyamulenge
force went on to capture and secure ali the major Congolese
towns in the border region, including Goma, Bukavu, and
Uvira. (UCM Annex 21, pp. 8-10).
25. That was the beginning of the first Congolese
war, which ended President Mobutu's dictatorship and installed
a new government under the leadershipf President Laurent
Kabila. For many years, Mr. Kabila bad led a small armed
force opposed to the Mobutu dictatorship, without success.
18Prior to the capture of the three towns by the
RPA/Banyamulenge,he came to Uganda and requested military
assistance for his group. President Yoweri Museveni turned
him down. Mr. Kabila next went to Rwanda, and had more
success. Under the guidance of Major General Paul Kagame,
then Rwanda's Vice President and currently its President, four
different Congolese groups, including the Banyamulenge
fighters, were united under the umbrellaof the Armed Forces
for Democratie Liberation of the Congo {AFDL), ofwhich Mr.
Kabila (with Rwandan support) was installed as leader.
Following the capture of Goma, Bukavu and Uvira, an
extensive recruitment of fighters from other civic and ethnie
groups opposed to the Mobutu dictatorship ensued. The RPA
intervened massively and directly, and carried out mostof the
fighting, assisted primarily by the Banyamulenge, although,as
time went on, fightersfrom ail regions of the countryjoined the
rebellion. (UCM Annex 21, pp. 6-7, 9-10, 12-14). The Zairean
Armed Forces (FAZ) simply disintegrated, for the most part, or
took refuge in sympatheticcountries (Central African Republic,
Chad, Congo-Brazzaville);the central govemment, which never
exercised much authority outsideof Congo's capital and a few
major cities, quickly collapsed. The fiercest resistance was
supplied by the ex-FAR and Interahamwe. However, the
advance of the RPA and assorted Congolese fighters, under the
command of RPA Colonel (later Brigadier) James Kabarebe,
was swift and unstoppable. In May 1997, they reached
Kinshasa and the war was over; and Laurent Kabila became
Presidentofthe renamedDemocratieRepublic of Congo.
26. Uganda was sympathetic to the struggle against
President Mobutu. But it did not send troops into Congo to
fight against his government, and it strongly opposed the use
foreign troops in the Congolese war. Uganda's only military
activity in connection with the conflict was against Sudan,
which sent its troops close to the Congolese border in March
and April of 1997. In President Museveni's words, Uganda
was-
"forced to tak.e decisive action against the
Sudanese army because of the criminal terrorist
attacks on civilians in Northern Uganda, West
19 Nile and also Rwenzori mountains going through
Mobutu's Congo. We also destroyed the
Sudanese anny in western Equatoria [in
southwest Sudan] because they were directly
threatening the Rwandan troops in Congo and
the Congolese freedom fighters from their bases
in Kaaya, Baazi, Morobo and others." (UCM
Annex 21, pp. 13-14).
27. President Museveni counseled the Government
of Rwanda not to send Rwandan troops into Congo to fight
against the Congolese government. He opposed "using outside
troops" in internai conflicts as a matter of principle because-
"It artificially distortthe outcome of the
conflicts; one gets artificial 'winners' and
'losers'; the political problems, therefore remain
unresolved because the winners win artificially
and the 'losers' lose artificially. This could,
however, be compensated for, if the artificial
'winners,' brought in alithe legitimate political
forces ·so that they ail plan for the future
together. ~ however, one combines a scenario
of artificial 'winners' and political exclusion, one
is setting a stage for future political problems.
Furthermore, since somebody is relying on
externat support primarily, he neglects internai
political integration. He neglects making the
necessary compromise intemally because he is
relying on externat support to muffie internai
fissures." (UCM Annex 21, p. 14).
28. President Museveni's advice was not accepted.
Both the Govemment of Rwanda and Mr. Kabila wanted the
RPA to lead the armed struggle against President Mobutu, and
that is what occurred. Nor did Rwanda or Mr. K.abila heed
President Museveni's advice to bring into the anti-Mobutu
effort"ali the legitimate [Congolese] political forces so they ali
plan for the future together.Mr. Kabila, in particular, rejected
this advice, which President Museveni offered when he -
20 "invited Mr. Kabila to Uganda. We had
discussions for hours on this one subject, and,
then, parted. To my amazement, H.E. Kabila
refused to retum the second time; and when I
contactedhim on satellite telephone, he engaged
me in a shouting match on the telephone."
(UCMAnnex21, p. 12).
B. President Kabila's Internai Problems
29. The triumph of the Congolese rebels and the
ousterof President Mobutu were widely hailed in Congo and
around the world. However, the problems faced by the new
government were daunting. After 32 years of despotic rule,
Congo was in a shambles. The treasury was empty, basic
infrastructure was destroyed, government institutions were
corrupt and inefficient, and public services were nonexistent.
These would have posed enormous challenges for any new
leader. However, President Kabila's problems were
exacerbated by two additional shortcomings foreseen by
President Museveni. First, he came to power with no army or
security force other than the RPA and the Banyamulenge,
because of his (and Rwanda's) insistence that they lead the war
against the Mobutist forces. Followinghis triumphal entry into
Kinshasa and formation of a new government,President Kabila
appointed Col. Kabarebe of Rwanda as Army Chief of Staff.
As time went on, President Kabila grew increasinglydependent
on the RPA. Security was never firmly established, as
intermittent fighting by Mobutist elements, ex-FAR and
Jnterahamweand other enemies of the new government broke
out in various regions. At the same time, large concentrations
of ex-FAZ and ex-FAR encamped in neighbouring countries
plotted a counter-revolution. Faced with such security threats,
President Kabila relied on thePA to keep his government in
power. As a consequence, the government was perceived by
the populationat largeo be dependent on foreign forces,which
deeply offended nationalist sentiments and drained popular
support for the new regime. The second shortcomingwas that
President Kabila had no broad-based political mandate or
support from Congolese civil society because of his refusai,
bothduring and afterthe war againstPresidentMobutu,to bring
21into government or otherwise give voice to any groups other
than his own AFDL. Within a short time, political parties and
civic organizations not deemed sufficiently loyal to the
govemment were effectively banned, and their leaders - like
Etienne Tshisekedi of the Union for Social Progress and
Democracy- were silenced by imprisonment or banishment to
remote regions of the country. Promised elections were never
held. (UCM Annex 37, pp. 17-19).
C. President Kablla's Invitation To Uganda To Deploy
Its Armed Forces In Eastern Congo
30. Although President Kabila's govemment was
growing increasingly insecure, Uganda's security, by contrast,
was improving. President Kabila was grateful for Uganda's
diplomatie support during the war and its offer to train his new
govemment's police force. (UCM Annex 16). With his support,
the new Congolese army, under the leadership of Col. Kabarebe
and other RPA officers, not only broke off collaboration with
the anti-Uganda insurgent groups but helped Uganda by hunting
them down. As·reported by the ADF's Director of Externat
Security: ''WhenKabila started fighting Mobutu and eventually
overthrew bim, supplies stopped coming in and he even
deployed troops to fight us in the mountains." (UCM Annex
63, p. 2).An official UPDF military situation report in August
1997 (three months after Mr. Kabila came to power) reported
that the"security situation" along Uganda's border with Congo
"has gradually been improving. Though there is still ADF
activitiesf Raiding, Killing, abducting and looting food stuffs
registered in theegion." (UCM Annex 13, p. 1).
31. President Kabila recognised that the Congolese
anny would not be able to shut down anti-Uganda insurgent
activity completely, because it did not have the human or
material resources to control such a vast country, and especially
its remote eastern provinces. Accordingly, to :6.this vacuum,
eliminate the anti-Uganda insurgents (who were also, at that
time, anti-Kabila) and secure the border region, President
Kabila, upon assuming power in May 1997, invited Uganda to
deploy its own troops in eastern Congo. They were needed,
because insurgent attacks against Uganda continued. On 23
22July 1997, ADF raiders killed 28 Ugandan civilians and
abducted 14 others at Ntokoro, in Bundibugyo District. The
following month, they killed 35 at Karambi, in Kabarole
District. On 14 September, they murdered 30 displaced persons
at a refugee camp in Nyakahuka, Bundibugyo District. (UCM
Annex 32, pp. 5-6). In response to these attacks, and at
President Kabila's further invitation in December 1997, Uganda
sent two UPDF battalions (approximately 1,200 men) into
eastern Congo, to supplement the much smaller force that had
been sent in May. The two battalions set up camps near Beni
and Butembo, close to Ugandan border, and together with sorne
of the Kinshasa govemment's army units in the region they
began to root out ADF and WNBF insurgents from their
Congolese bases. Pursuant to President Kabila's invitation, a
third UPDF battalion was deployed to eastern Congo in April
1998, the same month that a Protocol was signed by the two
govemments formalising the invitation and committing the
armed forces of both countries to jointly combat the anti
Uganda insurgents in Congolese territory and secure the border
region. The Protocol, signed by Hon. Tom Butime, the
Ugandan Minister of Internai Affairs, and H.E. Gaetan Kakudji,
the Congolese State Minister in Charge of the Interior,
expressly recognised the existence of armed irregulars
·conducting military activities across the Congo-Uganda border,
characterised them as a security threat to both States, and
provided for joint action by Ugandan and Congolese armed
forces to stop them. (UCM Annex 19). Thus, it cannot be
denied that Ugandan troops entered Congolese territory by
invitation of the Congolese government,and that their presence
in Congo pursuant to that invitation was entirely lawful. The
DRC made no mention of the invitation in its Application of 23
June 1999, or in its presentation to the Court on Interim
Measures in June 2000. However, Uganda submitted the
Protocol of 27 April 1998 to the Court as part of its presentation
on Interim Measures, and the DRC subsequently admitted, in its
Memorial of 21 July 2000, that Ugandan troops entered the
DRC by govemmental invitation. (See the Memorial, paras.
5.23, 5.37). (The legal aspects of the DRC's invitation to
Uganda to deploy its troops in eastern Congo are further
discussedin Chapter 16 ofthis Counter-Memorial).
23 32. Despite the invitation and the Protocol, there was
little ')oint action" by Ugandan and Congolese forces against
· the anti-Uganda insurgents, because the Congolese government
under President Kabila maintained a limited military presence
in the region, and depended almost entirely on Uganda to
maintain security there. The DRC's dependence on Ugandan
forces was compounded by the local Congolese forces'
reluctance to fight the anti-Uganda insurgents. According to a
contemporaneous UPDF military situation report, joint action
was impeded by the fact that the Congolese had "poor
Commandees who are inexperianced and lack committment."
(UCM Annex 17, p.l). The Congolese army's refusai to fight
the insurgents drew a visit from theArmy Chief of Staff, Col.
Kabarebe, who-
"convened a Meeting in Beni and explained to
the ANC [Armée Nationale du Congo, later
renamed Forces Arméesdu Congo, or FAC] and
their Commandees that the enemy in Rwenzori
Mountains is not a Ugandan problem as
propagatted by negative elements. Col.
Kabarebécautioned those who are not willing to
fight to surrender their uniform.... This
explained to ANC to notice that they should fight
the war because it is on Congoterritory." (UCM
Annex 17,p. 2).
Despite Col. Kabarebe's commitment to joint action with
Uganda against the insurgents, the FAC soon had another
reason not to join Uganda in fighting them: a new military
alliance between President Kabila and the insurgents.
24 CHAPTERill
PRESIDENT KABILA'S MILITARY ALLIANCE
WITH UGANDA'SENEMIES, AND THE
RESUMPTION OF ARMED AGGRESSION
AGAINST UGANDA (1997-1998)
A. President Kabila's Strategie Change Of Direction,
And His Militarv Alliance With The Anti-Uganda
Insurgents
33. President Kabila's inevitable failure to meet the
high expectations unleashed by the ouster of the Mobutu
dictatorship, popular Congolese revulsion at the heavy-handed
influence wielded by Rwanda and the RPA, and the
concentrationof political power in his narrowly-based AFDL,
steadily eroded support for his govemment.By tate 1997, the
govemment was in danger of collapsing. Popular support had
almost completely evaporated, political opposition was rapidly
spreading (despite the govemment's attempts to repress it), and
rebellious outbreaks of groups formally loyal to the govemment
were occurring with greater frequency various regions. With
the survival of his govemment in grave jeopardy and no
obvious way out of the crisis, President Kabila adopted a bold
(albeit cynical) strategy: decided to exchange his allies for
his enemies, and his enemies for his allies. In concrete terms, he
chose to seek support for his beleaguered government from
Congolese ultra-nationalists and anti-Tutsi elements, outraged
by his government's dependence on Rwanda and the
Banyamulenge, by severing his alliances with the latter. Since
this meant depriving himself of the most effective elements of
his army and security forces, he had to create a new army and
negotiate new military alliances before he could sever his
existing relationships. He begany releasing hundreds of ex
FAZ from incarceration, inviting thousands more to return from
exile in neighbouring countries, and incorporating them into the
Congolese army, including those units stationed close to the
Uganda border. (UCM Annex 90, p. 8).
34. BY September 1997, President Kabila had
appointed, as the commander of Congolese armed forces in
25eastern Congo, ex-FAZ colonel Mathias Ebamba, who had
servedin a similarcapacityunder formerPresidentMobutu,and
who had facilitatedthe latter's military and logistical assistance
to the ADF. Col. Ebamba replaced a Banyamulenge officer,
sympathetic to Uganda, as commander of the FAC's Fifth
Brigade, headquartered in Bunia. According to a
contem.poraneousUPDF intelligence report issued in February
1998:
''The former operational brigade commander,
Col. Ebamba, ·has been posted back here as the
brigade commander, plus many of the former
officers. This officer was directly in charge
NALU [predecessor of .ADF] organisation,
training, financecontrol and operations to the
last moment [NALU] attacked Uganda on
13/11/96 at Bwera. [This is a reference to the
ADF'smassive assaulton the Mpondwecustoms
post and the town of Bwera of 13 Novem.ber
1996, described in paragraph 22.] People are
wondering if he is not coming to supply the
enemy with arms and ammunitions especially
when among the enemy we have sorne FAZ.... "
(UCMAnnex 18,pp. 2-3).
They did not have to wonder long. As reported by ADF
Commander Issa Twatera Embundu, shortly ··fter Col.
Ebamba's return to the region as military commander of
Congolese forces, ''Theysent an emissary called Fatuma (beer
sellerin Busange)to tell ADF that theywere readyto cooperate
with them and provide logistics. ADF was thus bad to stop
hostilities against FAC (Kabila's army)." (UCM Annex 76, p.
1). The ADF responded positively to this Congolese overture,
and a meetingwas arrangedwith threeFAC commanders. ''The
three comds expressed disappointment with Museveni's
government and pledged support to ADF. After this meeting
they reportedto Col. lbamba of FAC in Bunia who took the
message to President Kabila.... who agreed to support to
ADF...." (UCM Annex 76, p. 1). According to another ADF
Commander: "ADF agreed to take on the same agreement to
Kabila government to fightUganda government. Col. lbamba
26representing Kabila government agreed to support ADF.... "
(UCM Annex 64, p. 1). As a direct result, the following FAC
officers delivered anns and ammunition to the ADF: Col.
Ebamba, Lieutenant Colonel Mayara, Captain Kascereka and
Captain Pangole." (UCM Annex 76, p. 3). Another ADF
combatant identified"Col. Ebamba (Beni) and Lt Col. Mayara,
Bde comdr, Bunia" as collaborators that would "act as go
between the rebels and the DRC gov't for logistical support and
sanctuary .... " (UCM Annex 20, p. 3). Uganda protested to
President Kabila about the activitiesthese officers, and urged
that they be replaced -to no avail.
35. The new alliance between the DRC government
and the ADF was cemented at the highest level. The ADF's
Chief Director, Yusuf Kabanda, met frequently with President
Kabila in Kinshasa, and dealt directly with Cabinet Ministers
and AFDL leaders to coordinate strategy and arrange supplies
and support. (UCM Annex 60, p. 7). President Kabila himself
introduced Kabanda to one Kasereka Solomon of !saale
Mutendero, Butembo. Solomon brought Congolese combatants
into the ADF, from local "Mai Mai" militia groups and
Katangese gendarmes loyal to President Kabila. (UCM Annex
65, p. 3). As reported by ADF Commander Junju Juma, who
headed the ADF's Presidential Protection Unit, the following
DRC military offi.cers (in addition to Colonel Ebamba)
coordinated the ADF's recruitment, training, weapons, supplies
and operations during this period: Brigadier Bambu
("Responsible for ferrying anns from Kinshasa to ADF in
Beni"), Colonel Mayara (''Responsible for receiving ADF
contacts/logistics from Sudan and delivering them to ADF in
the Rwenzori mountains"), Major Wamulamba ("Charged with
coordinating ADF activities between Sudan-Kinshasa and
Kisangani"), Major Abdallah Kule ("Charged with overseeing
operations in Butembo, received a consignment of anns air
dropped by Kinshasa government destined to ADF"), Captain
James Kaseru ("Charged with linking up lnterahamwe with
ADF ... with the blessing of the Kabila government"), Army
Officer Benjamin ("Chief coordinator of ADF activities i.e.
transportationof anns from Sudan to ADF camps via DRC"),
RSM Masereka John ("Coordinated ADF in the Rwenzori
mountains with the Kabila government. Conduit of intelligence
27logistics and manpower from Kinshasa government to ADF
rebels''}, Kasareka Solomon (civillan who served as "[c]hief
link between ADF, K.abila government and Congolese
civilians...[c]oordinates movement of troops and logistics
from Kabila government and ADF''). (UCM Annex 64, pp. 2-
6). Thus, by the end of September 1997 -
''AC started supplying arms and ammo in big
quantities...A team of 5 people led by Moses
was sent to Kinshasa to negotiate with Kabila
through Khartoum. This was followed by two
air droppings of arms and ammo in Rwenzori
ADF bases. This was followed by a pledge from
K.abilato provide troops who would fight along
side ADF. At first a senior Mai Mai cmd with
25 troops were received.... The troops were
integrated intoDF." (UCM Annex 76, p. 2).
36. The DRC govemment made a similar alliance
with the WNBF. President K.abila met regularly in Kinshasa
with Taban Amin, the former Ugandan dictator's son, and
included Amin inplanning discussions with Congolese military
officers. The Congolese government arranged living
accommodations for Amin inKinshasa, at the Diplomate Hotel.
After Congolese security forces seized the Ugandan Embassyin
Kinshasa (in September 1998), the DRC govemment gave the
Embassy building and apartments to Amin to serve as his
official headquarters and residence. (UCM Annex 89, p. 4;
UCM Annex 87). (The legal implications of the DRC's seizure
of the Ugandan Embassy are addressed in Chapter 18 of this
Counter-Memorial.)
B. The Incorporation Of The Ex-FAR And
lnterahamwe Génocidaires loto The CongoleseArmy
37. As part of his strategie shift in alliances,
President K.abilanot only incorporated former FAZ officers and
soldiers into the FAC, and allied the DRC govemment with the
ADF in the latter's fight against Uganda;he also brought into
the FAC's ranks thousands of ex-FAR and Interahamwe
génocidaires. This was an especially difficult measure for
28President Kabila to take, because it was bound to be, and was,
strongly opposed by Col. Kabarebe and the other RPA officers
and soldiers who dominated the FAC's High Command and
constituted its most reliable combat units. President Kabila was
obviously aware that it was impossible for the two opposing
Rwandan forces - the RPA and the ex-FAR/Interahamwe -
to coexist within the same Congolese army. Thus, he waited
until March 1998,by which time he was almost ready to declare
an end to his alliancewith Rwanda andthe RPA, to continue the
process of building a Congolese army independent of the RPA
by incorporatingex-FAR and Interahamweunits. In May 1998,
President Kabila issued a directive that sorne0 captured ex
FAR and Interahamwe would be retrained at the Kamina
barracks in Katanga Province and subsequently integrated into
the FAC. (UCM Annex 90, p. 16). Among those sent for
retraining pursuant to this directive wereInterahamwe who
had been captured incombat by RPA soldiers, and held prisoner
pending their return to Rwanda to stand trial for genocide.
Thousands more ex-FAR and Interahamwe from refugee camps
in Congo-Brazzaville were transported to the DRC for
integration into the FAC,as well. (UCM Annex 42, p. 15).
Even more ex-FAR and Interahamwe, who had never been
captured or exiled and were still :fightingRwandan forces and
the FAC in eastern Congo, were brought into the F. (UCM
Annex 90, pp. 9-11). The incorporation of ex-FAR and
Interahamwe into the DRC's armed forces was widely
condemned by the international community; typical is the
reactionof the Governmentof the United States of America:
"We are gravely concemed about reports that
insurgent groupsmotivatedby ethnie hatred such
as the Interahamwe milita and the ex-Rwandan
armed forces are actively involved in the
conflict. We condemn the Congolese
govemment's efforts to recruit and train these
groups and view with alarm the fact that this
conflict is strengthening the band of the
perpetratorsof the 1994 Rwanda genocide."
(UCMAnnex 29).
29C. President Kabila's Militarv AllianceWith Sudan
38. Also in May 1998, President Kabila secretly
visited Sudan, met with Sudanese President Omar Bashir, and
concluded a military alliance sÏinilar to the one that President
Mobutu had made with Sudan four years earlier. The Sudanese
promised to help President Kabila militarily against Rwanda
and Uganda, with troops, arms and equipment. Ugandan
military intelligence subsequently confirmed that President
Kabila agreed to put atSudan's disposai ali of the airfields in
northem and eastern Congo, and Sudan agreed to use them to
deliver arms, supplies and fresh troot~ the FAC in Kinshasa
and elsewhere, and toanti-Uganda insurgents near the Congo-
Uganda border. The two governments also agreed to resume
direct military collaboration with the anti-Uganda insurgents,
and to coordinate the insurgents' military operations(UCM
Annex 66, p. 6). As reported to the United Nations General
Assembly by Uganda's Minister of State for Foreign Affairs,
Hon. Amama Mbabazi:
"As the situation of rebellion in the Democratie
Republic of the Congo worsened, 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 rebets on the
territoryof the Democratie Republic of the
Congo. Indeed, after that, more Ugandan rebel
groups were mobilized by the Sudan and moved
to the Democratie Republic of the Congo."
(UCM Annex 42, p. 14).
39. The Court cannot fail to appreciate the
tremendous alarm in Uganda caused by President Kabila's
alliance with Sudan, a govemment that had been conducting
hostile actions against Uganda since 1986, through its
sponsorship of insurgent groups, terrorist actions and direct
aerial bombardment of Ugandan towns and villages. Uganda
promptly complained to President Kabila, who dismissed the
protest. Shortly thereafter, high-level Ugandan and Rwandan
securityofficiais arrived in Kinshasa for one of their periodic
30meetings with their Congolese government counterparts, and
found that the Congolese bad also invited Sudan to the meeting
- without previously notifying Uganda or Rwanda. More
visits by President Kabila to Khartoum and by Sudanese
officiaisto Kinshasa followed. Uganda's worst fears bad
materialised; President Kabila bad followed in President
Mobutu's footsteps by allying his government with Uganda's
enemies - the anti-Uganda insurgents, the ex-FAR and
Interahamwe,and the Government of Sudan. lt braced itself for
renewed attacks. In fact, following President Kabila's May
1998 agreementwith President Bashir - and as a direct result
of it- the frequency, intensity and destructiveness of cross
border attacks by Congo-based anti-Uganda rebels increased
significantly.
D. The Resumption Of Congolese-Supported Armed
Attacks In And Against Uganda
40. The most immediate accomplishmentof the new
DRC/Sudan alliance was the brutal ADF attack on Kichwamba
Technical School on 8 June 1998. As described in paragraph 5
of this Counter-Memorial,a force of more than 100 insurgents,
armed by the DRC and Sudan, carried out this heinous assault
on innocent secondary school students. According to ADF
participants, the attackers divided themselves into three units:
one group of 24 staged an ambush on the way to the school to
prevent Ugandan soldiers from rescuing the students; a second
unit of 36 attacked the school, armed with high-powered
weapons and "8 jerricans ofpetrol"; and the third unit attacked
the UPDF detachmentat nearby Kanyamura. The studentswere
either bumed alive in their donnitories, shot and killed while
trying to escapethe flames, or abducted and forcibly taken back
to Congo. (UCMAnnex 20, p. 1). The ADF attackedthe same
area on 10June, killing five more Ugandans. They struck again
on 26 June at Banyangule village, in Bundibugyo district,
killingor wounding 11; and again on 5 July at Kiburara, in
Kasese District, where they abducted 19 seminarians from St.
John's Seminary. On 1 August, the ADF launched an attack on
Kasese town, burning bouses and stores and killing three.
(UCMAnnex 91, pp. 16-17).
31 41. Thus, as a direct consequence of President
Kabila's alliances with the ADF and other anti-Uganda
insurgent groups, with the ex-FAR and Interahamwe, and with
the Government of Sudan, anned aggression against Uganda
from Congolese territory began again on a major scale in June
1998.
E. The DRC's Armed Attacks Against Congolese Tutsis
42. Uganda was not the only victim of President
Kabila's new alliances. At the same time that Uganda came
under renewed attack, President Kabila's new allies among the
ex-FAR and Interahamwe, recently incorporated into the FAC,
began attacking Banyamulenge civilians and other ethnie Tutsis
in eastern Congo, near the borders with Rwanda and Uganda.
(UCM Annex 90, pp. 16-17). Uganda was deeply concerned
not only about the anned aggression from Congolese territory
that it suffered,t also the renewed outbreak of ethnie fighting
in eastern Congo between Hutus (now part of the FAC) and
Tutsis. President Museveni himself feared thatthis could lead
to a new civil war in Congo, with disastrous consequences not
only for Congo but for neighbouring States, as well. Because
President Kabila had broken off dialogue with him, President
Museveni sought the intermediation of other States in the
region, especially members of the Southern African
Development Community (SADC) friendly to the DRC, to head
off the impending crisis. To this end, he traveled to Windhoek,
Namibia, to attend a meeting of Heads of State of SADC
countries on 26-29 July 1998. A productive discussion of
President Museveni's concerns about Congo was thwarted,
however, by President Kabila's decision not to attend. As a
consequence, the participants scheduled anotherSummit, on 7-8
August 1998 in Victoria Falls, Zimbabwe, to discuss the
situation in Congo.
F. President Kabila's Expulsion Of The RPA And His
Severance Of Ties With Rwanda
43. lnstead of attending the Windhoek Summit,
President Kabila remained in Kinshasa where, on 28 July 1998,
he issued a decree expelling ali RPA units from Congolese
32territory, and ali Rwandan military personnel from the
Congolese armed forces-; the decree invited ali of them to leave
the country forthwith. The RPA and the Rwandan soldiers in
the FAC complied with President Kabila's decree. His
severance of ties with Rwanda, his former ally, was thereby
accomplished. However, the decree of 28 July 1998 did not
affectUganda. It was addressed only to the RPA and Rwandan
elements in the Congolese armed forces. It said nothing about
the Ugandan armed forces that were then in Congo pursuant to
President Kabila's earlier invitation and the Protocol7 April
1998(see the Memorial, paragraphs 2.10, 2.11). There were no
Congolese government protests or demands for their removal.
Accordingly, the three UPDF battalions stationed in eastern
Congo with the DRC's consent remained in their positions.
33 CHAPTERIV
THE DIRECT MILITARY THREAT TO UGANDA,
AND
THE AUGMENTATION OF ITS FORCES IN
CONGO (1998-1999)
A. The Congolese Government's Extermination
Campaign Against Its Tutsi Citizens And The
Outbreak Of War
44. At the same time that he expelled Rwandan
military forces from Congo, President Kabila dismissed all
Banyamulenge and other ethnie Tutsis from the Congolese
army and government, and from positions in his AFDL. Then,
in the wake of the Rwandan withdrawal from Congo, the
President and senior Congolese government officiais launched a
vicious, ethnie hate campaigniinilar to the one that preceded
the 1994 genocideinRwanda. (UCM Annex 37, pp. 10-11). In
public broadcasts, speeches and interviews, Congolese leaders
repeatedly denounced Rwanda, people of Rwandan descent,
Banyamulenge and other Congolese Tutsis in the harshesand
most vitriolicterms, calling them "viruses, mosquitoes,
garbage" and urging the Congolese people to eliminate them.
(MDRC Annex 42, para. 45). In sorne towns, like Isiroin
eastern Congo, Congolese government officiais distributed
machetes (the weapon of choice in the Rwandan genocide of
1994), and urged that they be used to eradicate Tutsis and other
suspected Rwanda sympathisers. Broadcasts on 8 August 1998
by a govemment regional radio station in the eastern town of
Bunia called upon listeners to use "a machete, a spear, an arrow,
a hoe, spades, rakes, nails, truncheons, electric irons, barbed
wire, stones, and the like, in order, dear listeners, to kill the
Rwandan Tutsis." (UCM Annex 22). On 12 August 1998, a
local Congolese army commander called upon Bunia residents
to ''takerevenge" on the Tutsis and "massacre them without
mercy." (UCM Annex 22, p. 1). Egged on by their leaders,
mohs of angry Congolese seized innocent Tutsis (or bystanders
they assumed to be Tutsis) and massacred hundreds of them in
Kinshasa and across the country. Many others were
34imprisoned, tortured and eventually executed by the
government's security forces. In eastern Congo, where most
Congolese Tutsis resided, ex-FAR and Interahamwe militias
(now officially incorporated into the Congolese armed forces)
rampaged against the Tutsi population. (MDRC Annex 42,
paras. 47,50; UCM Annex 37 pp. 11-13). ''Therewas a real
policy of ethnie cleansing," according to the United Nations
Special Rapporteur on Human Rights. (MDRC Annex 42, para.
45). Even after the passage of more than two years, Congolese
government leaders remained unrepentant about their racist
diatribes and the slaughter they unleashed. In an interview,
former Foreign Minister (and currently Minister of Education)
Yerodia Ndombasi, a psychoanalyst, defended his anti-Tutsi
diatribes:
"[A] psychoanalyst must refuse rabbie. A
psychoanalyst cannot perform miracles. When
there are rabbie, one has to condernn them to be
rabbie, and the psychoanalyst can do nothing.
And when one says 'vermin' - and 1 repeat
again, these are vermin -- a vermin is
something that introduces itself insidiously into a
body, or a piece of wood, or a plant, or clothes,
and moves on. That's what they did." (UCM
Annex 75, p. 6).
45. In the faceof such verbal and physical attacks by
the Congolese government and its new allies, the
Banyamulenge and other Tutsis of eastern Congo took up arms
to defend themselves. They formally declared themselves in
rebellion on 2 August 1998, and later organised themselves
politically and militarily as the Rassemblement Congolais pour
la Démocratie(RCD). The Congolese government left them no
alternative. It had, in effect, declared war on them based on
their ethnicity and suspected sympathies with Rwanda, and their
only means of survival was to fight against the government.
Four FAC brigades in eastern Congo (based in Goma, Bukavu,
Kindu and Kisangani) mutinied against the government and
aligned themselves with the Tutsi rebels, and the Government
of Rwanda quickly came to their support, just as it did in 1996
when the same hostile forces, then allied with President
35Mobutu, threatened the Congolese Tutsis with extermination.
AB in 1996, the rebel forces, supported by Rwanda,
overwhelmed their attackers, and swept across the entire region
adjacent to the Congo-Rwanda border. The fissiparous
tendencies of the dysfunctional Congolese state inherited from
President Mobutu, which President K.abila's government had
barely papered over, were set loose by the rebellion, and the
central government soon lost effective control over the eastern
half of the country. Uganda deliberately assumed a posture of
strict neutrality toward the fighting between the DRC
government and the Congolese rebets. AB reported to the
United Nations General ABsembly by Uganda's Minister of
Foreign Affairs:
''Thechoice Uganda had was either to put down,
by force, this mutiny in support of Kabila or to
remain neutra! as long as whoever was in control
understood our primary objective of pursuing the
ADF rebels. Uganda chose the latter. Precisely
because the Uganda government did not want to
interfere in the internai affairs of the DRC."
(UCM Annex 42, p. 4).
Thus, as set forth in Chapter XIV of this Counter-Memorial,
Ugandan troops played no role in the attacks or other events
described in theDRC's Application of 23 June 1999, and were
not even present at the places or times that these incidents are
alleged to have occurred.
46. President Kabila and his government refused to
recognise the rebellion for what it was - an uprising against
the government by discontented Congolese - and branded it
instead an "invasion" by Rwanda, further whipping up
Congolese nationalist (and anti-Rwanda and anti-Tutsi)
sentiments. At that time, the DRC government accused only
Rwanda, and not Uganda, of invading its territory. Indeed, at
the Victoria Falls Summit, which was held as scheduled on 7-8
August (five days after the outbreak of fighting), President
Kabila's Minister of Justice accused Rwanda alone of
instigating the rebellion and invading Congolese territory. He
made no such accusations against Uganda. The Summit was
36attended by the Heads of State of Uganda, Zimbabwe,
Tanzania, Zambia, Namibia, Rwanda and the DRC. In response
to the DRC's accusations against Rwanda and Rwanda's
deniais, the Headsof State decided to appoint a commission to
investigate whether the fighting was the product a Rwandan
invasion, or a Congolese rebellion and F AC mutiny. The
commission immediate!y set out for the capitals the DRC and
its neighbours to conduct its investigation.
B. The DRC's Escalation Of Aggression Against
Uganda, And lts Command And Control Over The
Anti-Uganda Insurgents
47. Notwithstanding its neutrality, the military threat
to Uganda escalated dramatically. As indicated, with FAC
support, the ADF launched a major attack on Kasese, a regional
center in western Uganda and the site of a strategically
important airfield, on 1 August, the day before the Congolese
rebellion broke out. A similar attack was made on the townof
Kyarumba, near Kasese, on 6 August; the ADF killed 33 people
in that attack. (UCM Annex 91, pp. 16-17). The DRC
govemment sent six FAC battalions, composed of Katangese
troops from southem Congo who had remained loyal to
President Kabila, to the border region across from Uganda.
Theyjoined forces with the ADF and Interahamwe operating in
that region and, on 7 August, near Beni, attacked the UPDF
troops that were still in Congo pursuant to the Congolese
govemment's invitation; the attackers were repelled and, after
the UPDF secured Beni, they retreated northward to Bunia,
where they were to be resupplied by Sudan (Bunia, like Beni,
has a strategie airfield). This was a clear indicationganda
that the FAC and the ADF were now in open military alliance
against it. At the same time, Ugandan military intelligence
reported that the Govemment of Sudan had airlifted sorne 3,500
WNBF to Kinshasa, from camps in northeastem Zaïre and
southem Sudan,where they were incorporatedinto the FAC and
sent to fight against the RPA and Congoleserebets of the RCD.
Both actions- the joint attack against Ugandan forces by the
FAC and ADF, and the use of the WNBF to fight alongside the
FAC against the RPA and Congolese rebets- demonstrated
that the anti-Uganda rebels were no longer just working in
37coordination with the FAC, but were now incorporated into the
FAC and its comrnand structure. (The legal implications of
these facts are discussed in Chapter XVII of this Counter
Memorial).
C. The Entrv Of Foreign Forces Into The War
48. On 9 August 1998,the commission appointed by
the Heads of State at Victoria Falls to investigate the causes of
the fighting in Congo arrived in Kampala to meet with officiais
of the Government of Uganda. Before the commission
completed its investigation or submitted its report, President
Robert Mugabe of Zimbabwe announced that SADC bad
concluded that the DRC bad been invaded, and that SADC
members should send troops to Congo to repel the invasion. In
fact, SADC bad made no such conclusion or recomrnendation.
Nevertheless, President Mugabe announced that he bad ordered
10,000 Zimbabwean troops to the DRC. Angola and Namibia
also sent troops tKinshasa, and other major cities in western
and central Congo, to defend the DRC government. Upon
arrivai in Congo, these foreign forces started advancing
eastward, in the directionof Rwanda and Uganda. At the
outbreak of the fighting, Sudan airlifted to Kindu, in Maniema
Province,itsown army units plus severa!thousand anti-Uganda
insurgents from the WNBF and LRA, to fight alongside DRC
govemment forces against the RPA and RCD rebets. (A
number of Sudanese soldiers and WNBF troops were taken
prisonerby the RPA in this fighting). Soon thereafter, Ugandan
military intelligence learned thatdan badarranged for even
more forces to be contributed to the anti-Rwanda/anti-Uganda
effort: the Sudanese governmentpersuaded the Govemment of
Chad to enter the war as its ally. The Sudanese air force
transported an entire Chadian brigade, consisting of 2,500
troops complete with armor and artillery, including 10 tanks,
from Ndjamena to Gbadolite, in northern Congo; their mission
was to attack the three UPDF battalions stationed in eastern
Congo, which were growing increasingly vulnerable, and to
take effective control eastern Congo. To defend its positions,
the UPDF occupied Bunia and took over its airfield on 13
August. This maneuver prevented the Sudanese air force from
airlifting hostile troops directly into eastern Congo, and from
38resupplying the combined ADF/Interahamwe/FAC force that
had attacked the UPDF troops in Beni. As of then, there still
was no Congolese attempt to terminate the Protocolof 27 April
1998; nor was there a demand that Ugandan forces withdraw
from Congo.
D. Sudan's Entry lnto The War And Its Participation
With The DRC In Attacks On Uganda
49. Uganda still had hopes that a major
confrontation could be avoided and a peaceful solution found.
President Museveni called upon ali the parties involved to
observe a ceasefire, and he lobbied his feliow African Heads of
State to join him in this cali. But Uganda's efforts to forestall a
widening of the conflict were in vain. The other parties were
not amenable to a ceasefire, and the war continued. Of
particular danger to Uganda was the growing military
involvement of Sudan. On 14 August 1998, Brigadier Saladin
Khalil of the Sudanese Armed Forces supervised the delivery of
three planeloads of weapons to the FAC in Kinshasa. Sudan
stepped up its training of FAC troops (including ex-FAZ, ex
FAR, WNBF, ADF and Interahamwe) at its own camps in Kit,
Frangosika, Tanamule, Rajafu and Kodokonyo; upon
completion of their training, Sudan airlifted these troops to
different points in Congo as requestedy the DRC govemment.
(UCM Annex 90, p. 16; UCM Annex 31, p. 10). President
Museveni's last hope of avoiding further conflict rested in an
East African Summit Meeting, scheduled for 20 August 1998 in
Nairobi. He hoped to reach an accommodation directly with
President Kabila at that meeting. However, President Kabila
never arrived; he went to Khartoum instead.
50. By 23 August 1998, Ugandan military
intelligence had learned that, while in Khartoum, President
Kabila had reaffirmed his military alliance with Sudan, and
arranged for more Sudanese military assistance to his
government, including the contributionof a Sudanese brigade to
the DRC's war effort in eastern Congo. The foliowing day,
President Kabila met with Sudanese Vice President Ali Othman
Taha in Gbadolite, where they agreed onjoint military measures
againstUganda, including a direct combat role for the Sudanese
39anny and air force, the further incorporation of Sudanese
trained anti-Uganda insurgents into the FAC, and an increase in
weapons and logistical support to the insurgents operating in
eastern Congo. On 26 August, Sudanese Antonov aircraft
bombed UPDF positions at Bunia. On 2 September, Sudanese
Colonel Ibrahim lsmail Habiballah delivered a planeload of
weapons to the FAC in Gbadolite for use bUNRF II units that
badbeen incorporated into the FAC. Days later, a Sudanese
anny brigade of approximately 2,500 troops, under the
command of Sudanese Lieutenant General Abdul Rahman Sir
Khatim arrived in Gbadolite; it quickly deployed to Businga,
and prepared to engage the UPDF forces in eastern Congo.On
14 September, President K.abila'saides announced that the DRC
and Sudan bad agreed to jointly reinforce their deployment
along the DRC's borders with Uganda and Rwanda. On 18
September, President K.abilaagain went to Khartoum, where he
received pledges of additional Sudanese troops and military
equipment; he also met there with leaders of the ADF, WNBF,
UNRF II and LRA. (UCM Annex 90, pp. 16-18).
51. As the DRC and Sudan prepared to ·attack ·
Ugandan forces in eastern Congo, the DRC govemment
unleashed its army against the Ugandan Embassy in Kinshasa
In September 1998, Congolese soldiers forcibly seized the
Ugandan Embassy, occupied it and looted its contents. This
followed earlier incidents, including that of 11 August 1998,
when DRC soldiers stormed the Embassy, forced their way
through the main gate, held the Ugandan Ambassador and
another diplomat at gunpoint, robbed them of their money and
demanded that they surrender any Rwandese nationals who bad
taken refuge in the Embassy to escape the government-inspired
killings of people of Rwandese or Congolese Tutsi origin.
(UCM Annex 33; UCM Annex 89). (The legal implications of
Congolese violations of Uganda's diplomatie mission and
representatives are addressed in Chapter XVIII of this Counter
Memorial).
E. Uganda's Exercise Of lts Right Of Self-Defence
52. Uganda's security situation bad become
untenable. Its three battalions in eastern Congo, a total of
40approximately 1,800 troops, were extremely vulnerable. The
combined Congolesegovernmentand allied forces - including
FAC, ADF, WNBF, Interahamwe, and Chadian and Sudanese
brigades - positioned between Gbadolite and the Congo
Uganda border outnumbered them by more than ten to one.
Faced with this enormous and direct threat, Uganda had two
choices: either withdraw its three battalions from Congo and
suffer the consequences of conceding the entire eastern region
of Congo to Sudan and the anti-Uganda insurgents, who were
certain to use itto launch even larger, more aggressive and
more damaging attacksinside Uganda; or reinforce its troops in
Congo and deny Sudan and the insurgents the strategie
positions they required to escalate their armed aggression
againstUganda. Uganda rejected capitulationin favour of self
defence. To defend its borders against numerically superior
forces,Uganda had no alternative but to deploy more troops to
eastern Congo and to gain control of the strategie airfields and
river ports in northern and eastern Congo before the
Sudanese/Chadians/F AC and other allied forces could occupy
them. Since there are no highways in this region, transportf
military supplies and equipment is necessarily by airplane or
river boat. Controlf the airfieldsandports was vitalto prevent
the resupply of FAC units, anti-Uganda insurgents and
In.terahamwe operating in the border region, and to deny
forwardbases to Sudanese,Chadianand other FAC troops from
which they could strike at Uganda directly. As Uganda's
Minister of State for Externat Mfairs reported to the United
Nations General Assembly: "Against the perceived threat of
increased destabilisation of Uganda especially by the Sudan
using Congolese territory as it had previously done, Uganda
deployed additional forces to counter this threat." (UCM
Annex 42, p. 15).
53. Uganda's decision to augment its forces in
eastern Congo and deny Sudan control of the region's airfields
and river ports was made on 11 September 1998, following the
arrivai and deployment in Congo of hostile Sudanese troops.
The Government of Uganda's decision was recorded in a
confidential,internai document entitled: "Position of the High
Command on the Presence of the UPDF in the DRC." The
41reasons for the government's decision to "maintain forces of the
UPDF in the DRC" were stated as follows:
"1. To deny Sudan the opportunity to use the
territory of the DRC to destabilize
Uganda.
2. To enable UPDF neutralize Uganda
dissident groups which have been
rece1vmg assistance from the
Govemment of the DRC and the Sudan.
3. To ensure that the political and
administrative vacuum, and instability
caused by the fighting between the rebets
and the Congolese Anny and its allies do
not adversely affect the security of
Uganda.
4. To prevent the genocidal elements,
namely: the lnterahamwe, and ex-FAR,
which have been launching attacks on the
people of Uganda from the DRC, from
continuing to do so.
5. To be in position to safeguard the
territorial integrityof Uganda against
irresponsible threats of invasion from
certainforces." (UCM Annex 27).
54. The additional Ugandan troops were deployed to
Congolese territory over time, and in response to the demands
of the military situation. The march to take control of key
airfields and river ports begann 20 September 1998, with the
occupation of !siro. Buta and its airfield were taken on 3
October. On 6 October, the Chadian brigade attacked the
UPDF at Aketi and was repelled. On 27 October, at Dulia, the
UPDF routed the Chadians, who fied in disarray, leaving ali of
their armour and artillery behind. During October, Sudan
airlifted another 3,500 WNBF into Congo to be incorporated
into the FAC. As reported by a member of the WNBF
contingent:
42 "In October 1998, we ... were put into lorries
and taken to Juba by the Sudanese government.
Juma Oris the leaderf the WNBFcame with the
Sudanese government and military officiais and
addressed us. He told us that we were being
taken to Congo to fight alongside the Congolese
and on victory, we would return to our
motherland Uganda. We spent only one day in
Juba and were loaded onto a big Sudanese
aircraft and flown to Kinshasa inngo."(UCM
Annex 51, p. 2).
From Kinshasa, the WNBF troops were sent wherever the DRC
government needed them, including combat missions against
the UPDF. On 17 November, a combined force of 18,000 -
consisting of Sudanese, Chadians, FAC, WNBF and
Interahamwe (the latter organisedas the 8000-member "Hutu
Brigade" of the FAC) - was defeated by UPDF forces at
Bumba. Ugandan and Sudanese forces clashed directly on 11
December, at Businga, in major fighting that lasted until early
February 1999. The Sudanese were defeated, and fied to
Gbadolite, where they regrouped. With the exception of
Gbadolite, which had the best airfield in Congo (President
Mobutu had maintained a residence there, and the airfield was
big enough to accommodate ali types of aircraft), Ugandan
forces succeeded in oècupying ali the key airfields and river
ports that served as gatewayso eastern Congo and the Uganda
border.
43 CHAPTERV
EFFORTS BY UGANDAAND OTHER STATES TO
STOP THE FIGHTING AND ACIHEVE A
PEACEFUL RESOLUTION OF THE CONFLICT
(1998-1999)
A. Uganda's Cali For A Ceasefire And Negotiated
Settlement
55. Even as the fighting raged, Uganda undertook an
ali-out diplomatie effort to bring the war to an immediate end.
At a succession of Summit Meetings of countries involved in
the Congo conflict, members of SADC, and other States,
President Museveni called repeatedly for a ceasefire and a
negotiated solution to the conflict. Starting with the Summit in
Victoria Falls, Zimbabwe, on 7-8 August 1998 (''VictoriaFalls
f'),Uganda's Head of State emphasised that Uganda had no
territorial interests or claims in Congo, that its troops were in
that country solely in the exercise of Uganda's legitimate right
to self-defence and specificaliy to defend itself against armed
attacks from Congolese territory, and that they would be
withdrawn promptly as part of a peace settlement that took into
account Uganda's security concerns. To àchieve such a
settlement, President Museveni urged the Congolese rebets and
the Government of the DRC to accept a ceasefire, and negotiate
a political solution to the conflict that broadened the
government to include representation of ali Congolese political
and social forces. This is the same message President Museveni
had delivered in vain to President Kabila and his allies during
the previous war against the government of President Mobutu.
Uganda's message to ail parties was the same: the internai
conflict in Congo can only be resolved by the Congolese
themselves, tbrough negotiation among the warring parties and
representatives of civil society, and the establishment of a
broad-based, multi-ethnic coalition government inclusof ali
the main political and social forces of the country; armed
irregular groups using Congolese territory to threaten the
security of neighbouring states must be d.isarmed,demobilised
44and repatriated; and ail foreign military forces, including those
ofUganda, must then be withdrawn.
56. Two weeks after Victoria Falls 1, a Summit of
SADC Heads of State, together with those of Kenya, Rwanda
and Uganda, took place in Pretoria, South Africa. The
participants accepted the commitmentto seek an immediate end
to the military conflict in the DRC, and they resolved that any
solution should be based upon, inter alia, the premise that:
"the independence and securitv of ali the
countries in the respective regions is an
important objective which ail agreed to pursue."
(UCM Annex 24, para. 4.6, underlining added).
57. There followed a second Victoria Falls Summit
on 7-8 September 1998("Victoria Falls Il''). The participants,
including the Presidents of Uganda and the DRC, released a
Joint Communique indicating that the security concerns of
neighbouring States, as weil as those of the DRC needed to be
addressed as part of a settlement of the conflict in theDRC:
"We agreed on the need to address the security
concerns of the Democratie Reoublic of Congo
and those of the neighbouring countries. In this
regard, we declare our preparedness to assist in
whatever ways possible, to achieve that
objective." (UCM Annex 26, p. 2, underlining
added).
58. Victoria Falls II was followed by the East
African Co-operation Heads of State Summit on the Security
Situation in the Democratie Republic of Congo, which was held
in Nairobi on 18 October 1998. This Summit was attended by
the Presidents of Uganda, Kenya and Tanzania. The
Communique adopted by the participants explicitly "re-affirmed
the need to address the genuine security concerns of the
countries neighbouring D.R.C." Foreshadowing the framework
that eventually would be set forth in the Lusaka Agreement in
July 1999,the Communiquecalled for:
"i. immediate cessationofhostilities.
45 ii. Immediate negotiation of a ceasefire
agreementand a troop standstill.
iii. Securityfor marginalizedgroups.
iv. Take measures to address securitv
concerns of neighbouringcountries.
v. Orderlywithdrawalof ali foreigntroops.
vi. Initiatean ali inclusivepolitical dialogue.
vii. Emplacement of a neutral international
peacekeeping force underthe auspices of
O.A.U. and U.N." (UCM Annex 28,
para. 6, underliningadded).
59. The securityconcems ofUganda and other DRC
neighbours were also among the principal issues addressed at
the Regional Meeting of Ministers of Foreign Affairs and
Defence on the Situationin the DemocratieRepublic of Congo,
held in Lusakaon 26-27 October 1998. Accordingto the Media
Statement issued by the participating govemments, including
the DRC and Uganda:
"The meeting focused on issues relating to the
cessation of hostilities in the DRC, the
establishment of a Ceasefire Agreement, the
mechanisms for implementing the Ceasefire
Agreement, the withdrawal of foreign forces,
addressingthe securitv concerns of the DRC and
the neighbouring countries as well as other
follow-up mechanisms for facilitating the peace
process in the DRC." (UCM Annex 30, p. 1,
underliningadded).
At the next Regional Meeting of Ministers of Foreign Affairs
and Defence, held in Lusaka on 14-16 January 1999, the
securityconcerns ofDRC's neighbourswere deemedto be such
an essential component of a solution to the confl.ict that a
separateWorkingGroupwas establishedto addressthem:
46 "After extensive deliberations, the meeting
agreed on the mechanisms for moving the peace
process forward. To this end, the meeting
establishedthe followingWorkingGroups:
A. Committeeon SecurityConcerns in the
DRC and neighbouringcountries comprising:
Zambia
Kenya
Botswana
Mauritius
UN
OAU
SADC."
The Ministers agreed that the Working Group would "begin
work immediately and submit reports to the next regional
Ministerial meeting which should be convened as soon as
possible." (UCMAnnex 35).
60. On 18 April 1999, President Kabila formally
acknowledged that the anti-Uganda insurgents operating from
Congolese territory constituted a threat to Uganda's security,
and that Uganda's concerns in this regard were legitimate. The
occasion for this acknowledgment was a Summit Meeting at
Sirte, Libya, convened by Libyan President Muamar Gaddafi.
The Summit produced a document, known as the Sirte
Agreement, which was signed by Presidents Laurent Kabila of
the DRC and Yoweri Museveni of Uganda, as weH as the
Presidentsof Libya, Chad and Eritrea. The Sirte Agreement
recognised the validityofUganda's securityconcerns by calling
for the deployment in the DRC of neutral peacekeeping forces
to protect Uganda's borders from attacks by anti-Uganda
insurgents. It emphasisedthe needor, inter alia:
• réaffirmation de la sécurité et de
l'intégritèdes frontières politiques de
tous lesÉtats;
47 • cessation immédiate des hostilités afin
d'ouvrir la voie au dialogue et à un
règlementpacifique;
• déploiement de paix africaines neutres
dans les zones où se trouvent des
contingents ougandais, rwandais et
burundais à l'intérieur de la République
démocratiquedu Congo;
• retrait de tous les soldats ougandais et
rwandais parallèlement à l'arrivée des
forces de paix africaines.1"
At the invitation of the Govemment of Uganda, a delegation
from the DRC, led by Minister of Justice Mwenze Kongolo,
visited Uganda from 28 May to 1 June 1999 to discuss
mechanisms for implementing the Sirte Agreement. Following
these meetings, the two delegations issued a Joint Communique
that characterised the Agreement as "a declaration of
commitment to the ongoing Lusaka regional peace process."
(UCM Annex 44, para. 2(a)). This regional peace process led
ultimately to the signing of a comprehensive peace accord at
Lusaka on 10 July 1999.
An English translation of the above excerpt from the Sirte
Agreement foliows:
• "Restoration of the security and integration of
political borders of ali States;
• Immediateending ofhostilitietolead to dialogue
and a peaceful solution;
• Deployment of Neutral African Peace forces in
zones where there are contingents of Ugandans,
Rwandans and Burundians in the DRC;
• Withdrawal of ali Ugandan and Rwandan soldiers
at the time of the arrivai otheAfrican Peace
Forces." (MDRC Annex 65).
48B. The Continued Fighting In Eastern Congo
61. While these meetings and negotiations were
taking place, the fighting in Congo continued. The
Rassemblement Congolais pour la Démocratie (RCD) rebel
group, fighting alongside the Rwandan army, drove swiftly
westward across the center of Congo until it confronted the
main body of Zimbabwean and Angolan forces defending
President Kabila's government at Kabinda and Mbuji Mayi.
There, the rebel drive stalled and a long stalemate ensued.
Internai divisions among the rebets themselves led to a split,
and the creationof a rival faction that took the name RCD-ML
(for Rassemblement Congolais pour la Démocratie-Mouvement
pour la Libération), which established its headquarters at
Kisangani, in Orientale Province. The original RCD rebel
organisation set up its headquartersat Goma, in South Kivu
Province, on the border with Rwanda. An entirely separate
rebel group, the Mouvement pour la Libération du Congo
(MLC), organised itself in the north, under the leadershipof
Jean-PierreBemba, a Congolesebusinessmanbased in Equateur
Province. Thousands of FAC troops voluntarily joined the
MLC's ranks; others joined after being captured in battle.
Eventually, the MLC's forces grew to more than 20,000.
Collectively, the three rebel groups controlled approximately
one-half of ali Congolese territory. Bach group established its
own civil administration in the territory it controlled, or
exercised authority through the local administration that
previouslybad takenits instructionsromKinshasa.
62. In eastern Congo, the UPDF pursued ADF and
WNBF forces that were still carrying out cross-border assaults
against targets insideganda. Most of the insurgents' bases
and infrastructure were destroyed, but by splitting up into
smaller units and keeping themselves constantly on the move,
many managed to escape capture, and they continued to carry
out armed attacks insideUganda, although with less frequency
and destructiveness. Nevertheless, in February 1999, the anti
Uganda insurgents and lnterahamwe crossed into western
Uganda and raided Busanza and Busigyi villages, killed seven
eivilians at Rubara and abducted20 from Kinyamahoro. On 1
March, 130 ex-FAR and Interahamwe génocidaires armed with
49assult rifles crossed into Uganda and abducted 14 foreign
tourists from Bwindi Impenetrable Forest, a national park that is
home to one of the world's few remaining colonies ofmountain
gorillas. The génocidaireskilled ali eight American and British
tourists because of their hostility to the United States and the
United Kingdom, explaining that those States bad "supported
the Tutsi minority in Rwanda in oppressing and massacring the
Hutus without constraint." (UCM Annex 39; UCM Annex 40).
63. On 3 July 1999, Ugandan forces finally gained
control of the airport at Gbadolite, and drove ali Sudanese
forces out of Congo. The Sudanese had entrenched themselves
at Gbadolite, and as long as they controlled that vital airfield
they posed a serious threat to Uganda's security. With them at
Gbadolite were a FAC brigade, the WNBF (commanded by
Taban Amin),the ''HutuBrigade" of ex-FAR and Interahamwe,
and the Chadians. Zimbabwean forces provided air defence,
artillery and communications. Operational command of ali of
these elements was exercised by Sudanese Lieutenant General
Abdul Rahman Sir Khatim. Fighting in and around Gbadolite
began in May 1999, and lasted almost two months. In ali, 12
UPDF battalions were in Congo, totaling approximately 7,200
troops; maximum UPDF troop strength in Congo never
exceeded this figure.Afterconsiderable fighting, the UPDF
took control of Gbadolite and itairfi aendthe Sudanese,
Chadians, FAC, WNBF and "Hutu Brigade" fied across the
Ubangi River to Bangui, in the Central African Republic. From
there, the Sudanese and Chadian troops were flown home. The
rest of the Congolese government's forces, accompanied by
Taban Amin and the Sudanese Lieutenant General, were
evacuated by the Zimbabwean Air Force to Kinshasa. The
WNBF contingent was then redeployed to Kananga, near Mbuji
Mayi, to support the Zimbabwean, Angolan and other FAC
forces defending that city against theRPA and the RCD rebets.
64. The battle at Gbadolite was the last major
encounter between Ugandan forces and those allied with the
DRC government. Within a week of the battle'sen~ the
regional Heads of State, including Presidents Museveni of
Uganda and Kabila of the DRC, met in Lusaka, Zambia and
signed a comprehensive peace agreement.
50 CHAPTERVI
THE LUSAKA AGREEMENT AND ITS
IMPLEMENTATION (1999-2001)
A. The Terms Of The Agreement
65. On 10 July 1999, the efforts of the parties to the
conflict to achieve a ceasefire and a permanent settlement
finaliy bore fruit. that date, an agreement was signed by the
Heads of State of Uganda, DRC, Rwanda, Zimbabwe, Angola
and Namibia. lt was later signed by the heads of ali three
Congolese rebel groups. The Lusaka Agreement (UCM Annex
45), as it came to be known, established a detailed framework
for achieving a peaceful resolution of the two inter-related
armed conflicts taking place in Congo: the internai conflict
between the Govemment of the DRC and the three anned
Congoleseopposition forces; and the externat conflict involving
the DRC and other States, includingUganda. In its Preamble,
the Agreement expressly recognised that the war in Congo was
not simply a case of "invasion" by foreign forces, as the
Congolese govemment earlier tried to pretend, but that "the
conflict in the DRC bas both internai and externat dimensions."
The text of the Agreementaddressedboth dimensions.
66. To resolve the internai conflict between the
Govemment of the DRC and the Congolese rebets, the Lusaka
Agreement obligated both the govemment and the three anned
Congolese opposition groups to stop fighting, disengage their
forces, and participate in a ''national dialogue" with all
Congolese social and political forces for the purpose of
establishing a "new political dispensation" in the DRC. (Lusaka
Agreement, paras. 19 and 20). The Agreement defined
"national dialogue" as ''theprocess involving ali stak:eholdersin
the inter-Congolese political negotiations with a view to
installing a new political dispensation which will bring about
national reconciliation and the early holdingf free and fair
democratie elections." (Annex C to the Lusaka Agreement).
The Agreement placed the three rebel groups and Congolese
civil society on an equal footing with the DRC govemment in
the national dialogue,y providing that "ail the participants in
51the inter-Congolese political negotiations shaH enjoy equal
status." (AnnexA to the Lusaka Agreement, Ch. 5, para. 5.2b).
The Agreement further provided that the national dialogue
would be conducted onder the guidance of a neutral facilitator
appointed by the Organization of African Unity (OAU).
(AnnexA to the LusakaAgreement,Ch. 5,para. 5.3).
67. The Agreement specified that, after completion
of the national dialogue, a new national army would be formed,
and that it would incorporate the forces of the three armed
opposition groups:
''Uponconclusion of the national dialogue, there
shaH be a mechanism for the formation of a
national, restructured and integrated army,
including the forces of the Congolese Parties
who are signatories to the Agreement, on the
basis of negotiationsbetween the Government of
the DRC and the RCD and MLC." (Lusaka
Agreement,para. 20).
68. ln add:ressingthe external conflict between the
DRC and other States, the parties to the Lusaka Agreement
recognised that the heart of the problem was the use of
Congolese territoryby armed irregulars seekingto destabilise or
overthrow neighbouring governments, and the support given to
these irregulars. To resolvethe problem, they agreedon a series
of specifie measures to prohibit the signatories from aiding or
abetting irregular groups, to prevent them from continuing to
operate from Congolese territory, and to eliminate them by
disarmament, demobilisation, resettlement and reintegration
into civil society. Thus,the Agreementprovided that:
''DETERMINED further to put an immediate
hait to any assistance, collaboration or giving of
sanctuaryto negative forcesbent on destabilising
neighbouringcountries ...." (Lusaka Agreement,
Preamble).
52 "The Parties to the Agreement shall take all
necessary measures aimed at securing the
normalisation of the situation along the
internationalborders of the DemocratieRepublic
of Congo, including the control of illicit
traffickingof anns and the infiltration of anned
groups." (LusakaAgreement,para. 17).
"Normalisationof the securitysituationalongthe
common borders between the Democratie
Republic of Congo and its neighbours requires
each country:
(a) Not to ann, train, harbour on its territory,
or render any form of support to subversive
elementsor anned oppositionmovements for the
purpose of destabilisingthe others;
(b) To report all strange or hostile
movements detected by either country along the
commonborders;
(c) To identify and evaluateborder problems
and cooperate in defining methods to peacefully
resolvethem;
(d) To address the problem of anned groups
in the Democratie Republic of Congo in
accordance with the terms of the Agreement."
(Annex A to the Lusaka Agreement, Ch. 12,
para. 12.1).
''There shall be a mechanism for disanning
- - - - ~ - - -
militias and anned groups.... In this context, all
Parties commit themselves to the process of
locating, identifying, disanning and assembling
all members of anned groups in the DRC."
(LusakaAgreement,para. 22).
69. The Agreement established a Joint Military
Commission,composed of senior military officers representing
each of the parties, and charged it with the responsibility for
53disarming the particular armed groups identified in the
Agreementitself as tbreats to the securitycountriesbordering
theDRC:
''TheJMC [Joint Military Commission] with the
assistance of the UN/OAU shaH work out
mechanisms for the tracking, disarming,
cantoning and documenting of an armed groups
in the DRC, including ex-FAR, ADF, LRA,
UNRF IT,Interahamwe, FUNA, FDD, WNBF,
UNITA ..." (Annex A to the Lusaka
Agreement,Ch. 9, para. 9.1).
70. Of the nine groups identified, five used
Congolese territory to mount cross-border attacks against
Uganda, with the support of the Congolese govemment: ADF,
LRA, UNRF ll, FUNA and WNBF. Annex C of the Agreement
added a sixthanti-Ugandairregular group to the list of those to
be disarmed by the Joint Military Commission: NALU. The
Agreement's emphasison thepresence ofthese armedgroups as
the principal cause of the externat conflict in Congo, and its
prescription for their disarmament, were a vindication of
Uganda'sposition that the groups constituted a serious tbreat to
its security, and that its self-defensive actions against them in
Congolese territorywere fullyjustified.
71. The tbreat to security and peace posed by these
armed groups, and the need to disarm them, were recognised,
not only by the six States and tbree rebel organizations that
signedthe Lusaka Agreement,but also by the Secretary-General
of the United Nations and the Security Council. In his Report
of 15 July 1999, the Secretary-General emphasised: ''The
problem of armed groups is particularly difficult and sensitive.
It lies at the core of the conflict in the subregion and
undermines the securityof ali the states concerned. Unless it is
resolved. no lasting peace canome." (UCM Annex 46, para.
21, underlining added). In a similar vein, the Security Council
Statement of 26 January 2000 provided: "The Council
recognizes that disarmament, demobilization, resettlement and
reintegration (DDRR) are among the fundamental objectives of
54the Lusaka Ceasefire Agreement." (UCM Annex 57, p. 3,
underlining added).
72. The Agreement recognised that the presence in
Congo of externat forces, including those of Uganda, was
caused by the presence of the armed irregular groups. Thus,
withdrawal of the externat forces depended upon, and bad to be
preceded by, the disarmament of these groups. This was
explicitly set forth in the implementation calendar:
"The final withdrawal of ali foreign forces from
the national territory the DRC shall be carried
out in accordance with the Calender in Annex
'B' of this Agreement and a withdrawal schedule
to be prepared by the UN, the OAU and the
JMC." (Lusaka Agreement, para. 12).
''The final orderly withdrawal of ail foreign
forces from the national territoryof the DRC
shall be in accordance with Annex B of this
Agreement." (Annex A to the Lusaka ·
Agreement, Ch. 4, para. 4.1).
''The Joint MilitaryCommission/OAU and UN
shaH draw up a definitive schedule for the
orderly withdrawalof all foreign forces from the
Democratie Republic of Congo." (Annex A to
the Lusaka Agreement, Ch. 4, para 4.2).
73. Annex B to the Agreement is entitled "Calendar
for the Implementation of Ceasefire Agreement." It lists 21
"Major Ceasefire Events" and establishes dates for each of
them, starting wit"1. Format signing of the Ceasefire" on "D
Day." Among the most significant of the other events are the
following:
"5. Establishment ofJoint D-Day + 0 hours to
Military Commission D-Day + 7 days
and Observer Groups.
6. Disengagement of D-Day + 14 days
Forces.
55 7. Selection of a D-Day + 15days
Facilitator.
12.Beginning ofNational D-Day +45 days
Dialogue.
13.Deadline for the closure D-Day +90 days
of the National Dialogue
14. EstablishmentofNew D-Day +91 days
Institutions.
15.Deployment ofUN D-Day + 120 days
Peace Keeping Mission.
16.Disarmament of Anned D-Day +30 days to
Groups. D-Day + 120 days
17. Orderly Withdrawal of D-Day + 180days"
ali Foreign Forces.
(Annex B to the Lusaka Agreement, pp. 2-3).
74. Thus, the parties to the Lusaka Agreement
expressly agreed that foreign forces would remain in their
positions in Congo until, inter alia: the conclusion of the
national dialogue and· the establishment of new Congolese
institutions; and, especially, the disannament of armed groups.
Until the occurrence of these ''Major Ceasefire Events," ali
foreign forces were directed to "remain" in their "declared and
recorded locations":
"Ail forces shall remain in the declared and
recorded locations until:
(a) In the case of foreign forces, withdrawal
has started in accordance with the
JMC/OAU and UN withdrawal
schedule.... "(Annex A to the Lusaka
Agreement, Ch. 11,para. 11.4).
75. While in their declared and recorded locations,
and pending theirfinal withdrawal, the foreign forces (as weil
as the other parties to the Agreement) were charged with the
responsibility of cooperating with the Joint Military
Commission in disarming the armed groups in their respective
zones of operation:
56 "...The Parties asswne full responsibility of
ensuring that anned groups operating alongside
their troops or on the territory under their control
comply with the processes leading to the
dismantling of those groups in particular."
(LusakaAgreement, para. 22).
B. Endorsement Of The Agreement By The United
Nations Secretarv-General And The Security
Council
76. The Lusaka Agreement repeatedly has been
endorsed by the Secretary-General and the Security Council:
"... it cannot be too often repeated that the
Lusaka Ceasefire Agreement remains the best
hope for the resolution of the conflict in the
Democratie Republic of Congo and, for the time
being, the only prospectf achieving it." (UCM
Annex 56, para. 86).
" the Lusaka Ceasefire Agreement
(S/1999/815) represents the most viable basis for
the resolutionof the conflict in the Democratie
Republic of Congo...." (UCM Annex 52
Preamble).
''The Lusaka Ceasefire Agreement remains the
most appropriate framework for reaching a
negotiated settlement of the conflict in the
Democratie Republic of the Congo." (UCM
Annex 83, p. 2).
77. The Security Council has issued eight separate
resolutions expressing its full support for the Agreement and
calling upon ail the parties to complywith its terms:
• Resolution 1258, 6 August 1999(UCM Annex 47)
• Resolution 1273, 5November 1999(UCM Annex
50)
• Resolution 1279, 30 November 1999(UCM Annex
52)
57 • Resolution 1291,24 February 2000 (UCM Annex
58)
• Resolution 1304, 16 June 2000 (UCM Annex 70)
• Resolution 1316,23 August 2000 (UCM Annex 72)
• Resolution 1332, 14December 2000 (UCM Annex
81)
• Resolution 1341,22 February 2001 (UCM Annex
86)
Typical of these resolutions is Resolution 1258, inwhich the
Security Council-
"Calls upon ali parties to the conflict, in
particular the rebel movements, to cease
hostilities, to implement fully and without delay
the provisions of the Ceasefire Agreement, to
cooperate fully with the OAU and the United
Nations in the implementation of the Agreement
and to desist from any act that may further
exacerbate the situation." (UCM Annex 47, para.
4).
Similarly,in Resolution 1291, the Security Council-
"Expressing its strong support for the Lusaka
Ceasefire Agreement (S/1999/815), which
represents the most viable basis for the peaceful
resolution of the conflict in the Democratie
Republic of the Congo,
Calls on ali parties to fulfill their obligations
under the Ceasefire Agreement." (UCM Annex
58, Preamble and para. 1).
C. Uganda's Compliance With The Agreement
78. Uganda has remained faithful to the Lusaka
Agreement, and complied with its terms, as well as the terms of
ali Security Council resolutions calling for implementation of
58the Agreement. Inparticular, Uganda has repeatedly committed
itself to withdraw ali its troops from Congo in accordance with
the Lusaka Agreement and the relevant Security Council
Resolutions. Neither the Agreement itself, nor any of the
resolutions requiresganda to withdraw its forces unilaterally,
or in any fashion other than in accordancewith the Calendar set
forth in Annex B of the Agreement and the withdrawal plan to
be drawn up by the JMC/OAU and UN. As explained by the
Secretary-General in a February 2001 Report to the Security
Council:
''The Lusaka Ceasefire Agreement
acknowledged the concems of Rwanda, Uganda
and Burundi over the presence of the armed
groups which threaten the security of their
borders, and recognized that the withdrawal of
Rwandan and Ugandan troops would be linked
directly to progress made in the disarmament and
demobilization of the militias. The Agreement
called for a mechanism for the disarming of
militias and armed groups, including the
genocidal forces." (UCM Annex 84, para. 88,
underliningadded).
79. Pursuant to the Agreement, on 8 April 2000 a
formai plan for the disengagement of ali contending forces in
Congo was agreed to at Kampala. The Kampala
Disengagement Agreement, signed by ali of the parties to the
Lusaka Agreement, provides for the initial disengagement of
forces to a distance of 30 kilometers, and subsequent
deployment"to defensivepositions within Congo. (UCM Annex
59, para. 13.a). MONUC was charged with drafting specifie
disengagement/redeployment sub-plans for each of the four
regions of the country, and a timetable for execution of each
plan. The Kampala Agreement states that: ''No PartYshould be
placed at a tactical disadvantage the disengagement" (UCM
Annex 59, para. lO.a); and ''TheParties understand and agree
that within DRC ali parties shall apply the obligations
undertaken in this Planequally." (UCM Annex 59, para. 2.b).
Thus, it is a fundamentaltenetf the plan that disengagement of
forces is to be equal,mutual, reciprocal and simultaneous- not
59unilateral, or in such manner as to put any state at a tactical
disadvantage vis-à-vis the others.
80. The Security Council bas endorsed this plan by
calling for the withdrawal of foreign forces from Congo
express/y in accordance with the timetable of the Lusaka
Agreement and the Kampala Disengagement Agreement. In
Resolution 1304, issued on 16 June 2000, the Security Council
called on Uganda and Rwanda, in particular, to-
"withdraw ali their forces from the territory of
the Democratie Republic of the Congo without
further delay, in conformity with the timetable
the Ceasefire Agreement and April 2000
Kampala disengagement plan." (UCM Annex
70, para. 4(a), underlining added).
In the Frenchversion-
"retirent toutes leurs forces du territoire de la
République démocratique du Congo sans plus
tarder, conformément au calendrier prévudans
l'Accord de cessez-le-feu et le Plan de
désengagementde Kampala en date du 8 avril
2000;" (MDRC Annex 6, para 4(a), underlining
added).
81. The Memorial of 21 July 2000, filed by the
DRC, quotes the French version of Resolution 1304 at
paragraph 1.75, but the quotation in the DRC Memorial stops
after the words "sans plus tarder" (''without further delay'').
This drastically changes the meaning of the text. The intent of
the paragraph is :fullyand properly revealed, however, if it is not
abbreviated (or enlarged) to suit the interests of either of the
parties to this case, but is quoted in its entirety.
82. Confirming that this paragraph was not intended
to imply that Uganda or Rwanda was to withdraw its troops
from Congo immediately or unilaterally, subparagraph b of the
same paragraph requires that -
60 "each phase of withdrawal completed by
Ugandan and Rwandan forces be reciprocated
by the other parties in conformitv with the same
timetable." (UCM Annex 70, para. 4(b)).
83. Subsequent Security Council resolutions have
made the same point. In Resolution 1332, for example, the
Security Council calledor-
''the withdrawal of Ugandan and Rwandan
forces, andof all other foreign forces, from the
territory of the Democratie Republic of the
Congo in compliance with resolution 1304
(2000) and the Lusaka Ceasefire Agreement, and
urges the forces to take urgent steps to accelerate
this withdrawal." (UCM Annex 81, para. 10,
underlining added).
Similarly, Resolution341-
"Demands once again that Ugandan and
Rwandan forces and all other foreign forces
withdraw from the territory of the Democratie
Republic of the Congo in compliance with
paragraph 4 ofits resolution 1304 (2000) and the
Lusaka Ceasefire Agreement, and urges these
forces to take urgent steps to accelerate this
withdrawal." (UCM Annex 86, para. 2,
underlining added).
84. Thus, contrary to the assertion in the DRC
Memorial of 21 July 2000, Security Council Resolution 1304
did not require Uganda to withdraw its forces from Congo, and
Uganda has not violated that resolution. Nor has any
subsequent Security Council resolution required such
withdrawal. To be.sure, Resolution 1304 required Uganda and
Rwanda "immediately and completely" to withdraw their forces
from the Congolese city of Kisangani. (UCM Annex 70, para.
3). However, this was quickly accomplished, as confirmed by
the Secretary-Generalin his Report of21 September 2000:
61 "Pursuant to resolution 1304 (2000), Rwanda
and Uganda have withdrawn their forces to a
distance of sorne 100 kilometres from the centre
ofKisangani." (UCMAnnex 74,para. 28). 2
As of the date of the submission of this Counter-Memorial,the
Secretary-General'smost recent Report to the Security Council
confinned that,in accordance with Resolution 1304, Rwandan
and Ugandan forcesremained in these distant locations. (UCM
Annex 84,para 29).
85. Uganda has gone far beyond satisfying the
requirements of Resolution 1304. Between June and August
2000, it withdrew five battalions completely from Congolese
territory. Accordingto the Secretary-General:
"On 22 June Uganda began withdrawing five
battalions from the Democratie Republic of the
Congo, which it characterized as a unilateral
gesture in support of the Kampala
disengagement plan. The Ugandan authorities
undertook to withdraw the remaining troops in
accordance with the provisions of the Lusaka
Ceasefire Agreement." (UCM Annex 84, para.
30).
86. In compliance with the Kampala Disengagement
Plan, MONUC prepared disengagement/redeployment sub
plans and corresponding timetables for each of the four front
line areasof the DRC. These sub-plans, known collectively as
the Harare Disengagement Plan (UMC Annex 79), required ali
military forces in Congo to"simultaneously" execute specified
15-kilometerdisengagementsover a two-weekperiod beginning
on 21 January 2001. (Annex B to the Harare Disengagement
Plan). The JMC considered the Harare Disengagement Plan at
its plenary meeting in Lusaka on 17-18 November 2000, but
2Ugandanforcesbadbeenat Kisanganisincetheirarrivaiin September
1998,afterthecitybadbeencapturedbytheRwandanPatrioticAxm(RPA)
and theRCDrebels,to securethe city'stwoaiiportsandpreventtheiruseby
Sudan.
62was prevented from adopting it at that time due to the absence
of the DRC delegation. (UCM Annex 80, para. 45). However,
on 6 December 2000, the Harare Disengagement Plan was
signed by the Military Chiefs of Staff of all of the States Parties
to the Lusaka Agreement, including the DRC and Uganda, and
adopted by the Political Committee. (UCM Annex 79, p. 15).
On 22 February 2001, the Security Council adopted Resolution
1341, which extended the date for the beginningf the mutual
disengagementsto 15March 2001. (UCM Annex 86, para. 3).
D. The Failure Of The DRC Government To Comply
With Its Commitments Under The Agreement
87. The DRC bas repeatedly made pronouncements
affirming its commitment to the Lusaka Agreement. On 15
June 2000, for example, the Congolese Foreign Minister told
the Security Council that his government supported the Lusaka
Agreementand its full implementation:"We are in favourof the
Lusaka Agreement and call for its full implementation...."
(UCM Annex 69, p. 11). However, the actions of the DRC
governmentunderthe late President Kabila tell a different story.
It prevented the national dialogue called for by the Agreement
from taking place by refusing to cooperate with the neutral
facilitatorappointedby theAU, former President of Botswana
Sir Ketumile Masire, whom aU parties (including the DRC
government) bad previously accepted. As reported by the
Secretary-Generalon 21 September 2000:
"The Governmentof the Democratie Republic of
the Congo bas continued to reject the neutral
facilitatorf the inter-Congolese dialogue, Sir
Ketumile Masire. After withdrawing its
confidence from Sir Ketumile and requesting
OAU to propose a new facilitator, the
Government temporarily sealed off his Kinshasa
office on20 June. In an attempt to overcomethe
impasse, President Bouteflikaof Algeria, in his
capacityas Chairman of OAU, triecitvain to
organise a mini-Summit in Algiers on 4 July.
Likewise, the absence of sorne dignitaries,
including President Kabila, at the thirty-sixth
63 ordinary session of the OAU Assembly of Heads
of State and Government, held in Loméfrom 10
to 12 July, frustrated efforts to address this issue
at the highest level. The summit adopted a
decision urging the Congolese parties, and
particularly the Government of the Democratie
Republic of the Congo, to extend full
cooperation to the neutra! facilitator. However,
at subsequent meetings the Government of the
Democratie Republic of the Congo indicated that
it was not ready to modify its position regarding
the facilitator.
On 25 July, the Minister for Foreign Affairs of
the Democratie Republic of Congo stated in a
press conference that the decision not to
cooperate with Sir Ketumile was irrevocable....,,
(UCM Annex 74, paras. 18-19).
On 12 October 2000, the DRc•s Permanent Representative to
the United Nations informed the President of the Security
Council thatthe DRC's rejection of Sir K.etunnle Masire was
"final." (UCM Annex 80, para. 21). In a subsequent
communique, the Minister of Information of the DRC
announced that his government might ''takeaction" against Sir
Ketumile Masire ifhe continued to cali for the convening of the
inter-Congolese dialogue. (UCM Annex 80, para. 22).
88. In further demonstration of its rejection of the
national dialogue, the Government of the DRC incarcerated
Congolese citizens who called upon the government to
participate in it. According to the Secretary-General:
"Another matter of concern is the recent
announcement by the Minister of the Interior that
the government will prosecute for 'high crimes
against State security' persons not affiliated with
a registered political party who make political
statements. The Director of the special branch of
the national police announced that any individual
involved in unauthorlzed political activities
64 would be arrested. As a consequence,the leader
of People's Revolutionary Movement was
arrested on 22 July for calling upon President
Kabila to meet with the political opposition and
participate in the inter-Congolese dialogue....
Also, 10 members of the DemocratieUnion and
Social Progress Party have been arrested and
detained for holding party meetings. These
targeted restrictions on freedom of expression
and freedom of association are completely at
odds with :fundamentalhuman rights, as well as
the express reguirements of the Lusaka
Agreement." (UCM Annex 74, para. 64,
underliningadded).
As reported by the Special Rapporteur on the Situation of
Human Rightsin the DRC:
"... Althoughthe main moral, religious, political
and civil institutions are clamoring for
democracy - in the sense of Commission on ·
Human Rights resolution 2000/47 - and
demanding the dialogue provided for at Lusaka
as a means thereto, President Kabila has shown
no interestin the matter.
Indeed, the President has always rejected the
national dialogue. The facilitator designated by
OAU, the distinguished former president of
Botswana, Sir Ketumile Masire, was accepted
and later rejected by the government; the latter
has consistentlyprevented himfrom fulfillinghis
delicatemission; (it has leveledvague chargesof
'duplicity of roles' against him; prevented him
from travelling to towns under tebel control;
rejected his work plan; failed tQ attend, and
prohibitedpolitical parties and civil societym
attending, the preparatory meeting in Benin;
withheldtickets and passports; refusedto receive
him,closedhis office and so forth).
65 In addition, the ban on political parties and civil
organizations that do not meet the draconian
conditions set by Decree Law 194 and Decree
Law 195 (see E/CN.4/20Q0/42,para. 33 and 70)
remains;personswho are not membersof a party
constituted in accordance with the new law are
not permitted to make political speeches; pro
govemment parties (the only ones recognized)
have been established; and ali political activity
has been suppressed, resulting in hundreds of
arrests and persona}attacks.... The agreements
regarding the democratization of the 'national
consultation' which had been called for by the
religious leaders and which demanded that the
Lusaka Agreement and the inter-Congolese
dialoguebe respectedhave been rejected; limited
dialogues have been convened (January,
February and May 2000) but are limited to
supporters,etc.
On 21 August 2000, notwithstandingthe Lusaka
accords, a Constituent and LegislativeAssembly
was established; under the sole directionof the
President and without any consultation and
without consensus, it was decided that the
Assembly's headquarters would be in
Lubumbashi. Although a few opponents were
called, in their personal capacity, the Assembly
was not accepted by the country's best known
leaders. In any event, its mandate is purely
consultative and it in no way diminishes the
absolutepowers of the President." (UCM Annex
73, paras. 39-42).
89. The Secretary-Generalstressedthe importanceof
the national dialogue to peace in Congo, and expressed deep
concern about the consequences of the govemment's refusai to
allowit to takeplace:
"In this context, the importance of the inter
Congolese dialogue cannot be underestimated.
66 Clearly, there will be no durable solution to the
conflict without a meaningful political dialogue
between the Congolese parties leading to a new
politicaldispensation. Efforts shouldintensify
help overcome the current apprehensions
blockingprogress in this regard. Otherwise,lack
ofprogress in the inter-Congolesedialogue could
result in the fragmentationof the country, with
all the consequencessuch a prospect would have
for the whole region." (UCM Annex 74, para.
83).
90. In addition to frustrating the national dialogue,
the Govemment of the DRC reneged on its obligations under
the Lusaka Agreement by obstructing the work of the UN
Observer Mission to the Congo (MONUC), which has
important observation and verification functions under the
Agreement and is a precursor to the Peace Keeping Mission
called for by the Agreement. According to the Secretary
General:
"... the efforts of the United Nations to assist the
parties in implementing the Lusaka Agreement
have been frustratedby persistent restrictions on
the Mission's freedom of movement, lack of
compliance with the provisions of status of
forces agreement and opposition, until recently,
to the deployment of United Nations troops. In
addition, a propaganda campaign directed
against MONUC increased concems regarding
the safetyof the Mission's personnel." (UCM
Annex 74, para. 77).
91. The Secretary-General also found that the DRC
govemment impeded the disengagementof forces called for by
the Kampala Disengagement Plan and the Harare
Disengagement Plan by boycotting meetings of the Joint
MilitaryCommission:
"Progress in developing the disengagementplan
adopted in Kampala on 8 April has been stalled
67 since late July, when the Government of the
DRC decided to withdraw from the Joint
Military Commission deliberations on this
subject." (UCMAnnex74, para. 75).
92. On 14 August2000, President FrederickChiluba
of Zambia convened and chaired a Summit of the parties to the
Lusaka Agreement and SADC countries. The meeting was
attended by the Heads of State of the DRC, Ugattda, Rwanda,
Zimbabwe, Namibia, Botswana, Malawi, Mauritius,
Mozambique, Lesotho, South Africa, Swaziland and Tanzania.
Despite 18 hours of continuous discussion, the Summit "failed
to make any progress" on implementation of the Lusaka
Agreement, ''principally because of the reluctance of the
Government of the DRC to allow the deployment of MONUC
troops to government-controlled territory and to accept Sir
Ketumile Masire as the neutral facilitator." (UCM Annex 74,
paras.4-5).In the final communique:
''The Summit recalled the guarantees that the
signatories to the Lusaka Agreement bad given
on 23 February 2000 to ensure the safety,
protection and freedom of movement of United .
Nations personnel, and appealed to the
Government of the Democratie Republic of
Congo to cooperate fufly with MONUC and to
satisfy the conditions necessary for deployment.
With the exception of the Government of the
Democratie Republic of Congo, the participants
in the Summit reaffirmed their support for the
neutra! facilitator. appeal was made to the
Government of the Democratie Republic of
Congo to reconsider its position in order to
ensure the speedy finalizationof arrangements
for the convening of the inter-Congolese
dialogue." (UCMAnnex 74,para. 6).
93. The Governmentof the DRC responded to these
appeals, in an official statement dated 26 August 2000, by
callingtherecently-completedSummit "completelyout of touch
with reality," and denouncing the ''tendency that became
68apparent at the Surnmitto lay the biarne for the blocking of the
agreements on the DRC, by focusing excessively on such a
small detailas who the facilitator was to be, and by distorting
the facts regarding the attitude the Government of National
Unity towardsMONUC."
94. Thus, the Government of the DRC prevented the
Congolese national dialogue from taking place, and thereby
precluded a resolutionof the internai Congolese conflict in the
manner prescribed by the Lusaka Agreement. It also blocked
progress in resolvingthe externat conflictbetween the DRC and
its neighbours by dishonoring its commitment to permit
MONUC to deploy its forces in Congo in such a way as to
facilitate a disengagementf the contending forces and a buffer
along the borders between Congo and Uganda, and between
Congo and Rwanda. Further, the DRC government failed to
carry out its express commitments regarding the disarmament
and demobilisation of the "armed groups" on its territory,
including the anti-Uganda insurgents. lt thereby prevented
fulfillmentof this critical element of the Lusaka Agreement.
Pursuant to the Agreement, the Political Committee established
thereunder agreedupon and unanimously adopted, at Lusaka on
8-9 June 2000, certain "Mechanisms for Disarming, Tracking
and Quartering of Armed Groups as weil as Procedures for
Handing Over Mass Killers, Perpetrators of Crimes Against
Humanity and Other War Criminals and Elaboration of
Procedures of Disarmament of Ali Congolese Civilianswho are
IllegallyArmed." (UCM Annex 68). These Mechanisms
include:
"1. DISARMING, TRACKING AND
QUARTERING OF ARMEDGROUPS
1.1 The process of disarming, tracking and
quartering of a.nhed groups shaH be
carriedout in eight (8) stages,viz,:
1.1.1. Identification
1.1.2. Verification
1.1.3. Disarming
1.1.4. Quartering
69 1.1.5. Amnesty
1.1.6. Tracking
1.1.7. Repatriation
1.1.8. Reintegration."
In the fust stage, "Identification":
"1.2.2. Bach Party to the Agreement shall be
required to declare
(a) Ali armed groups operating in the territory
under its control; and
(b)Ali armed groups, even if allied to it, whether
or not operating the territory under its control
which, to its knowledge, are operating
anywhere on the DRC territory.
1.2.3. The declarations envisaged shall, among
others, indicate, ifknown,
(a)The name or names of the armedgroups;
(b)Theperiod for which the groupshave been in
existence or operation or both;
(c) The Political objectives and organization of
the groups;
(d) The military command, structure and
organization of the groups
(e) Their positions and locations from time to
time;
(f)Information on the groups' allegiance and/or
alliances;
(g) The strength of armed groups;
(h)The types and quantities. of arms in their
possession or ownership;
70 (i) Details of any other equipment and property
belonging to thegroups."
The DRC govemment bas failed to carry out any of these
agreed measures and, as a consequence, not even the fust stage
of disannament, "Identification" of anned groups in Congolese
territory, has been accomplished.Since the Lusaka Agreement
makes disannament of these groups an express precondition for
withdrawal of foreign forces, Ugandan and other foreign forces
have properly remained in Congo pending the satisfaction of
this precondition.
E. The Continuation Of Armed Attacks Against
Uganda
95. The DRC's failure to honor its commitments
underthe Lusaka Agreement to cooperate in the disannament of
the anti-Uganda insurgents operating from Congolese territory
has had a direct impact on Uganda: anned attacks by these
forces against Uganda have continued. According to the U.S.
Committee for Refugees, a humanitarian organization:
"In the southwest [region ofUganda], attacks by
ADF insurgents against civilian targets escalated
dramatically during the year [1999], leaving a
path of killing, mutilations, abductions, and
looting that Ugandan govemment forces
struggled to hait despite regular troop
reinforcements." (Annex 67, p. 125)..
Thus, on 10 August 1999, ADF insurgents raided Kibuku
village in Rwebisengo sub-couq.ty and killed two civilians.
Three days later, they attacked Katumba camp for displaced
persons in Bubukwanga sub-county and killed three civilians.
On 17 October, the ADF ambushed a civilian vehicle at Mweya
junction, near Kasese, and killed the medical superintendentf
BweraHospital. On 20 October, ADF attackersraided Bwanike
village in Kinyamaseke Parish, killed a home guard and
abducted four people. On 12 November, they raided Butyoko
village in Kabarole District and killed two. On 16 November,
the ADF attacked Bihondo camp for displaced persons in
71K.abaroleDistrict and killed two civiliaOn.9 December, the
ADF attacked the town of Fort Portal, in western Uganda, killed
a civilian and a UPDF soldier and abducted more than 360
prisoners from K.atojo jail.The next day, ADF insurgents
staged simultaneous attacks on six UPDF detachments in
Bundibugyo District, killing five Ugandan soldiers and
wounding ten more. On 12 December, they killed a Ugandan
soldier and six civilians in an ambush on a vehicle at
Mantoroba. On 23 December, the ADF attacked Nyahuka camp
for displaced persons, killetwo civilians and wounded two
Ugandan soldiers guarding the camp. The next day, they
attacked Hakitura village in Bundibugyo District and killed :five
civilians. (UCM Annex 54, pp. 2-3).
96. To be sure, the counter-insurgency activities
Ugandan troops in border regions of eastern Congo reduced the
frequency of ADF attacks into Uganda, but did not eliminate
them. To the contrary, the ADF has continued to launch
destructive cross-border attacks against Uganda from its
Congolese bases in the Rwenzori Mountains. On 11 August
2000, for example, heavily-armed ADF combatants abducted 25
Ugandan civilians in K.aseta,HoimaDistrictand killed 12.On
3 September, they attacked a camp for intemally displaced
persons at Kyabitaka, Hoima District, and killed twoOn 26
December, a force of over 50 ADF insurgents attacked
Kitagwenda, in Kamwenge District, and killed six civiliaOn.
17 March 2001, as preparation of this Counter-Memorial was in
its final stages, a large ADF force attacked the town of Kasese,
killing 15 civilians, and buming 60 vehicles.
97. The U.S. Committee for Refugees bas reported
that-
''The LRA and other rebets in the north,
including the West Nile Bank Front, have killed
5,000 to 10,000 civilians during the 1990's,
according to local estimates. ADF rebels have
reportedly killed nearly 1,000 people since 1996
in the southwest.
72 Insurgents regularly have abducted children,
tortured and mutilated civilian victims, pillaged
local villages, and planted landmines along roads
and footpaths.... (UCM Annex 67, p. 125).
In 1999alone-
''Rebel attacks 'caused rapid and massive
displacementand re-displacement of the majority
of the residents' in sornesouthwestem areas, UN
aid workers reported. Rebel raids uprooted
50,000 to 70,000 people during March-April and
pushed an additional 10,000 persons from their
homes later in the year.
The newly uprooted families joined tens of
thousands of persons displaced in previous years.
Approximately 100,000 or more uprootedpeople
congregate at more than 35 sites in and near the
southwestem town of Bundibugyo, which grew
to five times its normal size. An additional
20,000 or more people remained uprooted in the
nearbyKasese District.
The displaced population in southwestem
Uganda was 'scared, traumatized and paranoid'
after years of rebel atrocities, aid workers
reported. Rebels targeted civilians, particularly
residents of displacement camps...." (UCM
Annex 67,p. 126).
Thus, as long as the ADF and other anti-Uganda insurgents
remained armed and mobilised in Congolese territory, the
security of Uganda and its citizens - especially the most
helpless and vulnerableof them- remained tenuous.
F. The Change Of Leadership In The DRC And Its
Impact On The Lusaka Process
98. On 16 January 2001, President Laurent Kabila
was shot and fatally wounded by one of his bodyguards. His
son, Major General Joseph Kabila, was subsequently appointed
73Head of State and Commander-in-Chief of the FAC. In
February 2001, President Joseph Kabila promised that his
government would honor its compritments under the Lusaka
Agreement, and took significant steps toward fulfilling that
promise. He told the Security Council on 2 Februarythat-
"in accord with and in consultation with the
allied countries that support us in facing the
aggression, we are going to examine ways and
means of relaunching the Lusaka Agreement so
that itill not only lead to an effective ceasefire
but will also restore peace to the Great Lakes
region ...." (UCM Annex 83, p. 5).
In particular, he pledged to move forward with a national
dialogue, and to cooperate with MONUC to facilitate the
deployment of United Nations forces to Congolese territory.
(UCM Annex 83, p. 5).
99. On 15 February 2001, in Lusaka, the new DRC
President appeared to reverse his father's position by advising a
Summit of the parties to the Lusaka Agreement that he would
allow Sir Ketumile Masire to serve as the neutral facilitator of
the national dialogue. President Kabila also stated that his
government would remove ail obstacles to MONUC's full
deployment in Congolese territory, as prescribed in the Lusaka
Agreement and Security Council resolutions.
100. Following these encouraging announcements,
the Security Council addressed the situation in Congo on 21-22
February, and on 22 February unanimously adopted Resolution
1341-
"Reaffirming its support for the Lusaka Ceasefire
Agreement... as weil as the Kampala plan and
the Harare sub-plans for disengagement and
redeployment." (UCM Annex 86, Preamble).
With a view toward implementing these agreements, the
Security Council extended the deadline for the parties' initial
15-kilometer withdrawals of their forces under the Harare
Disengagement Plan until15 March 2001. The Resolution also
74urged the parties to prepare and adopt, not later than 15 May
2001, a plan and schedule for the orderly withdrawal of all
foreign troops from the DRC in accordance with the Lusaka
Agreement, as well as a plan for the disarmament,
demobilisation, reintegration, repatriation or resettlementll
armed groups specified in Annex A, Chapter 9.1 of the
Agreement. (UCM Annex 86, paras. 3, 6, 8).-Recognising that
the presence of Ugandan (as wll as Rwandan and Burundian)
troops in the DRC is driven by Uganda's (and Rwanda's and
Burundi's) legitimate security concems, the Security Council
emphasisedthe importance of enablingMONUC-
"to monitor and verify the withdrawal of foreign
troops and the implementation of the plan [for
disarmament, demobilisation, repatriation and
reintegration of armed groups] and, in
coordination with existing mechanisms, to
enhance securityon the borderof the Democratie
Republic of the Congo with Rwanda. Uganda
and Burundi...." (UCM Annex 86, para. 20,
underliningadded).
101. In response to these measures by the DRC and
the SecurityCouncil,and in furtherdemonstrationofUganda's
commitment to a successful implementation of the Lusaka
Ceasefire Agreement and in order to encourage further
progress," Uganda announced on 20 February 2001 that it
would withdraw two more battalions (approximately 1,200
troops) from the DRC. (UCM Annex 85, p. 3). MONUC
subsequently confirmed the withdrawal of the two UPDF
battalions.On 29 March 2001,MONUC furtherconfirmedthat,
in full conformitywith the Kampala and Harare Disengagement
Plans, as wells Security CouncilResolution 1341,Uganda had
disengaged its front-line forces and redeployed them to points
15 kilometers to the rear. (UCM Annex 88). Uganda hereby
reiterates its pledge fully withdrawthese and all other UPDF
troops remaining in Congo (five battalions, totalling
approximately 3,000 soldiers, as of the submission of this
Counter-Memorial)in compliancewith the terms of the Lusaka
Agreement.
75 PARTll
THE PROCEDURAL ANDSUBSTANTIVE
ECCENTRICITIES
OF THE MEMORIAL
76 CHAPTERVII
THE ABSENCE OF ADEQUATE PROOF
A. Introduction
102. The DRC has in its Memorial adopted a policy
essentially similar to the policy adopted during the oral hearings
relating to the Request of the DRC for interim measures of
protection. This policy can be described as a combination of
the following elements:
First: the deployment of a number of serious accusations
without any reference to documents or other evidence referring
to specifie incidents.
Second: extensive reference to findings in general terms on the
partof the organs of the United Nations and other international
organisations.
Thirdly: reliance on the principle that the pertinent facts are
matters of public knowledge.
103. The approach of the DRC involves the omission
of two necessary constituents in a case which is concemed with
State responsibility. The first such constituent is the
presentation of evidence to establish a link of imputability
between the Respondent State and alleged delictual conduct.
The second such element is the provision of specifie evidence
of the imputabHityand of any damage caused by the conduct of
the Respondent State.
104. The claima.QtState omits these elements from its
Memorial and, in doing so,.presentsa series of difficulties both
for the Court and for the Respondent State. In this Chapter
the nature ofthese difficulties will be analysed.
77B. The Absence Of Documentary Evidence Relating To
Imputability
105. At this stage of the examination of the case
presented by the DRC it is necessary to review the contents of
the volumes of Annexes forming part of the Memorial.
Volume ll of the DRC Memorial
106. This volume consists of thirty-eight documents.
The contents are Security Council resolutions, Summary
Records of the Security Council, Declarations of the President,
Reports of the Secretary-General, Reports of the Security
Council Mission to the DRC, and other Security Council
documents.
107. With certain exceptions, the preponderance of
these documents are in general tenns and make no reference to
the involvement of individual States. Very few of these
documents relate to issuesof State responsibility.
108. Two examples of the documents included Willbe
given. The firstexample is taken from the Security Council
Record for 24 January 2000. (MDRC Annex 11). At pages 14
to 15, we :find the beginning of the speech of the French
representative. What he said was this:
''Mr.Josselin (France) (spokein French): At the
outset, 1 wish to thank the presidency of the
Security Council for having taken the initiative
of converiing this open meeting of the Council
on the Democratie Republic of the Congo.
White the international community is well aware
of the gravity of the crisis and of its important
implications for the peace, stability and
development of the Democratie Republic of the
Congo and the Great Lakes region, it must now
fully assume its responsibilities and strongly
support the processbegon with the signing of the
Lusaka Agreement. For its part, France stands
ready.
78 The Lusaka Agreement,the basis of a negotiated
solution agreed by ali the parties, is today the
sole complete consensual instrument that can
lead to the restorationf peace. Although it has
encountered certain problems and is not running
according to the very ambitious timetable set by
the signatories, the implementation of the
Agreement has begun. The Political Committee
and the Joint Military Commission, the
keystones of the Agreement, have been
established. They are meeting regularly and
have tak:enimportantdecisionson both their own
internai organization and on how to monitor the
implementation of the Agreement.
Although unacceptable ceasefire violations -
particularly those occurring in recent weeks -
are to be deplored, the overall military situation
has stabilized. The international community -
particularly the United Nations, through the
creation of the United Nations Organization
Mission in the Democratie Republic of the
Congo and the announcement of an imminent
peacekeeping operation - the Organization of
African Unity (OAU) and the European Union
have ali rapidly committed themselves to
supporting the process, thus lending it additional
credibilityand legitimacy.
We must recognize that the implementation of
this Agreement bas been too slow - as many
speakers this morning emphasized - due
certainly to a lack of trust and cooperation
among the signatories and because a certain
number of elements remain to be clarified or
investigatedfurtherbefore ali the belligerentsare
fully convinced that this is the right approach,
inter alia,o ensuringtheir own security."
109. For present purposes it is sufficient to point to
the fact that this speech, and others like it, are not concemed
79with the attribution of responsibilito individual States, or,
indeed, at ali. The focus of the speech is the peace process
based upon the Lusaka Agreement and the threats to its
efficacy.
11O. Similar considerations apply to the Report of the
Secretary-Generalon the Mission to the DRC (MONUC) dated
17 January 2000 (MDRC Annex 23). This important document
is concernedwith the implementationof the Lusaka Agreement
and the specifie issues of the protection of human rights,
disarmament and demobilisation. The Report is not concemed
with issuesof Stateresponsibilityand imputability.
Volume illof the DRC Memorial
111. This volume of annexesconsists of the following
types of documents:
(a) GeneralAssemblyresolutions;
(b) Report of the Special Rapporteur on the
Situationof Human Rights in the DRC, dated 17
Sept~m 19e r;
(c) Documents of the Human Rights Commission;
and
(d) Variouspress communiques.
112. These documents are not concemed with
appropriate legal assessments of responsibility and, when
individualStates are implicated,no evidence is presented. This
is the casewith itemb) above.
Volume IV of the DRC Memorial
113. This volume consists of a large number of OAU
documents, together with sorne EU documents and two United
States documents. Very few of these documents refer to the
responsibilityof individual States. The EU documents are
typical in this regard. The exception consistsMDRC Annex
85,which refers to the fighting in Kisangani in June.
80 Volume Vofthe DRC Memorial
114. This volume consists of reports on the situation
in the DRC published by non-governmental organisations, and
also the ICRC.
115. None of these documents refers to the question
of the imputability of violations of legal obligations to
individual States.
Volume VI ofthe DRC Memorial
116. This volume includes press reports and various
documents compiled by the Government of the DRC in
connectionwith these proceedings.
117. These documents consist of multiple hearsay and
are of very limitedreliability. The Republic ofUganda reserves
the rightto comment further in the next phase of the written
pleadings. The documents in this volume produced by DRC
government sources are in any event not relevant to this phase
of the proceedings.
C. The PolicyIn Respect Of Proof Declared In The Text
Of The Memorial
118. In a series of passages the Government of the
DRC gives a clear statement of its method of presenting the
case against Uganda. Thus, in Chapter ITthe following appears:
"2.01 La Républiquedémocratiquedu Congo a
déjà exposébrièvement les faits qui sont à la
base de sa requête(supra, introduction, section
1). L'Ouganda est intervenu militairement en
Républiquedémocratiquedu Congo le 2 août
1998, occupe depuis lors une partie substantielle
du territoire congolais, y exploite les ressources
naturelles,s y approprie indûment des biens et se
livre des exactions à l'encontrede la population
civile.
81 2.02 Avant de développerces élémentsplus
avant, la Républiquedémocratiquedu Congo
rappelle qu'elle ne se livre ici qu'à un
établissement des faits nécessaires à la
démonstration de la violation par l'Ougandades
diverses obligations internationalesmentionnées
dans sa requêteet détailléesdans le présent
mémoire. Ce n'estquà un stade ultérieurde la
procédure que le détail d'élémentsde fait
indispensables à la détermination exacte de
l'étenduedu dommage subi sera nécessaire.
C'est pourquoi il ne s'agira pas à ce stade de
reprendre les·modalitéspréciseset détaillées de
chaque action militaire et paramilitaire de
l'Ouganda. ou de chaque exaction ou pillage,
mais de montrer de manière générale et
incontestable gue ces actions se déroulent 3e
manièrecontinue depuis prèsde deux années. "
(underliningadded).
119. ln this and indeed throughout the Memorial the
DRC faits to distinguish proof of imputability for particular
conduct and proof of the measure of damages. ln the passage
3<'2.1 The Democratie Republic of the Congo bas already briefly outlined
the factsn wbich its application is based (see above, Introduction, Section
1). Uganda intervened militarily in the Democratie Republic of the Congo
on 2 August 1998 and bas since been occupying a substantial part of
Congolese territory,exploiting its natural resources, unlawfully
appropriating its assets and committing actsf oppression against the
civilian population.
"2.02 Before discussing these matters in greater detail, the Democratie
Republic of the Congo would stress that here it bas confined itself to
establisbing those facts necesstodemonstrate Uganda's violation of the
various international obligations referred to in its Application and detailed in
this Memorial. Only at a later stage of the proceedings will it be necessary
to provide detailsof the factual circumstances essential for a precise
determination of the extent of the damage sustained. That is why we shall
not at this state discuss the precise details of each military and paramilitary
operation undertaken by Uganda or of every act of oppression or incident of
looting, but indisputably demonstrate in a general manner that these
activities have been taking place on a continuing basis for nearly two years."
82quoted above (para. 2.02) it is not only proof of the quantum of
damages which is postponed but proof of the alleged illegal
conduct as weil.
120. That this is the position adopted by the DRC is
confirmed also in the relevant passage in Chapter VI of the
Memorial, which reads as follows:
"6.27 Les actes internationalement illicites
attribuables à l'Ouganda ont causé à la
République démocratique du Congo des
dommages considérables,et de plusieurs ordres.
n s'agiten effet d'aborddes dommages matériels
résultant de l'agression et de l'occupation, qui
couvrent tous les dégâtscausésaux bâtiments,
voies de communication et infrastructures de la
République démocratique du Congo. TIs'agit
aussi des dommages humains considérablesqui
découlentde l'usagede la force et des violations
des droits de la personne. n s'agit enfin du
dommage moral entraîné par l'occupation
insolente d'une partie du territoire de la
République démoctratique du Congo par les
forces ougandaises.
6.28 L'ensemble de ces dommages donnent
évidemmentlieu à une obligation de réparation,
et on donnera dans les lignes qui suivent un
aperçude leur importance et de leur ampleur. La
République démocratique du Congo étant
toujours dans une situation exce.ptionnelle de
guerre et .d'occupation. ne peut évidemment
prétendre à ce stade exposer le détail des
nombreux préjudicesqu'elle a subis et gui sont
attribuables à l'Ouganda. A fortiori ne
cherchera-t-elle pas à évalueravec précisionles
montants permettant de chiffrer ces préjudicesen
vue d'une réparation pécuniaire. La Court
trouvera en annexe un mémorandumfaisant état
d'estimations qui couvrent certaines parties du
conflit. C'est à titre purement illustratif et
83 indicatifque ce mémorandumest fourni. C'està
une phase ultérieurede la procédurejudiciaire
gue la Ré,publiguedémocratiquedu Congo se
·réservele droit de produire des élémentsprécis
et complets tendant à appuyer une demande en
ré,paration.4.('underlining added)
121. In this connection, and in order to justify its
eccentric proposai, the Governmentof the DRC relies upon the
Nicaraguacase,wherethe Courtstatesthat it-
" considers appropriate the request of
Nicaragua for the nature and amount of the
reparation due to it to be determined in a
subsequent phase of the proceedings.... The
opportunity should be afforded Nicaragua to
demonstrate and prove exactly what injury was
suffered as a result of each action of the United
States which the Court has found contrary to
international law." (footnote omitted). (I.C.J.
4
''6.1..7The Democratie ltepublic of the Congo bas suffered substantial
damage of various kinds as a result of the internationally wrongful acts
attnbutabletoUganda. First, the attack and occupation have caused material
damage, comprising all damage to the buildings, means of communication
and infrastructureof the Democratie Republic of the Congo. Second,
considerable personal injury bas been suffered as a result of theuse of force
and violations of human rights. Lastly, non-material damage basensued
from the brazen occupation of part of the territory of the Democratie
Republic of the Congo by Ugandan forces.
"6.28 These different categories of damage clearly entait an obligation to
make reparation, the scale and scopef which will be outlined below. As
the Democratie Republic of the Congo is still contending with an emergency
situationf war imd occupation, it obviously cannot attempt at this stage to
describe in detail the many heads damage it bas suffered at the bands of
Uganda. There is even less point in seeking to makean accurate assessment
of the damage in quantitative terms with a view to obtaining pecuniary
damages. The Court will find annexed hereto a memorandum containing
estimates relating to certain partsthe conflict. That memorandum bas
been submitted solelyy way of illustration and for reference purposes. The
Democratie Republic of the Congo reserves the right, at a later stage in the
legal proceedings,osubmit detailed and comprehensive evidence in support
of its claim for reparations."
84 Reports, 1986, pp. 142-43, para. 284; and see
also p. 149,para. 15 of the DispositiO.
122. This quotation provides further evidence, if that
were necessary, of the confusion affecting the approach of the
DRC. In the passages concemed the Court is, of course,
referring to the compensation phase of the proceedings. The
Court is not dispensing Nicaragua from the duty to establish the
existence of violations of the pertinent legal obligations.
D. The ContentOfTheMemorial
InGeneral
123. The inadequate method of proving attribution in
accordance with the normal principles of general international
law pervades the substance of the Memorial. Thus:
Chapter 1deals with the political context.
Chapter II purports to deal with the establishment.f the
facts but relies upon general allegations, generally avoids
reference to specifie episodes, and when specifie incidents are
alleged, avoidsproducing evidence.
Chapters rn and IV are concemed exclusively with
general issuesof law.
Chapter V is also concemed with general issues of law
on the basis of certain general factual hypotheses relating to the
issue of exoneration.
Chapter VI is concemed with abstract questions of the
law of reparationunrelated to any evidence.
124. The entire textof the Memorial is devoid of any
proof of the attribution of specifie conduct to the Respondent
State. The position çan be tested by examining the text of
Chapter Il, which does, after ali, purport to deal with the facts.
125. Thus in paragraphs 2.33 to 2.40 a whole series of
allegations are made relating to the Ugandan armed forces. Not
85a single item of evidence is adduced. This form of presentation
is characteristic of the chapter as a whole. At this point it will
be convenient to examine the content systematically.
Alleged Intervention by the Ugandan Armed
Forces
126. The second and most substantial section of
Chapter II is devoted to "the legal establishment of the facts."
(pp. 77-122). By way ofpreliminary it is necessary to remind
the Court that the Government of the DRC expressly adopts its
own undemanding standard of proof. Thus, in paragraph
2.02 (already quoted) the DRC announces that:
"Ce n'estqu'àun stade ultérieurde la procédure
que le détaild'éléments de fait indispensables à
la déterminationexacte de l'étenduedu dommage
subi sera nécessaire. C'estpourquoi il ne s'agira
pas à ce stade de renrendre les modalitésprécises
et détaillées de chaque action militaire et
paramilitaire de l'Ouganda. ou de chaque
exaction ou pillage, mais de montrer de manière
générale et incontestable que ces actions se
déroulent de 5anière continue depuis près de
deux années. " (underlining added) '
127. And at the beginning of the section on ''the
legal establishment of facts," the DRC affirms this approach:
"La présente section présentera les éléments
probatoires qui permettent de conclure à
l'établissement juridique des faits pour les
besoins de la cause. La preuve juridique sera
établieau regard du comportement d'ensemble
52.02 "Only at a later stage of the proceedings will it be nectosary
provide details of the factual circumstances essential for a precise
determinationof the extent of the damage sustained. That is why we shall
not atthisstate discuss the precise details of each military and paramilitary
operationundertakenbyUganda or of every act of oppression or incident of
looting. but indisputably demonstrate in a general manner that these
activitieshavebeen takingplace ona continuingbasis for nearlytwo."
86 de l'Ouganda, à savoir sa politique d'agression,
d'occupation, de pillages et d'exactions.
Rappelons gue la Ré.publiguedémocratique du
Congo ne met pas en cause la responsabilitéde
l'Ouganda pour chaque événement pris
isolément. mais pour son comportement
d'ensemble. C'est pourquoi les éléments
probatoires seront à ce stade exposésde manière
générale,l'identification précisedes événements
et l'évaluationprécise des dommages causées
pouvant êtr6détaillésà une phase ultérieurede la
procédure. " (para. 259, underlining added)
128. In these important statements of the
methodology adopted by the DRC there is an evident
repudiation of the standard of proof properly insisted on by the
Court in the Corfu Channel case (Merits), in the passages
quoted below, in paragraphs 56 to 60.
129. In the pages in principle devoted to proving
intervention by Ugandan armed forces, what evidence is to be
found? In paragraphs 2.63 to 2.76 it is alleged that "the facts"
are recognised by the ''Ugandan authorities." The materials
deployed in support of this assertion do not establish the
proposition of the DRC. They do establish the presence of
Ugandan armed forces on the territory of the DRC, but that is
not disputed. The documents relied upon do not involve any
evidence of illegality and entirely avoid determinations of
responsibility.
130. Thus the Final Communique of the Consultative
Summit of Heads of State in Nairobi on 18 October 1998 (see
para. 2.65) examined the options available in solving the crisis.
6"2.59. This section will present evidence sufficient in law to establish the
facts for the purposes of this case. Legal proof will be established with
regard to Uganda's overall conduct, namely, its policy of aggression,
occupation, looting and oppression. We would stress that the Democmtic
Republic of the Congo is not calling Uganda to account for each event taken
se.pamtely. but for its conduct as a whole. Thus the evidence will at this
stage be set out in general terms, with a detailed description of events and
evaluation of damage to follow at a later stage of the proceedings."
87One option was the withdrawal of foreign forces. Another
option, which had priority in the list, was "1' adoption de
mesures visant à tenir compte des préoccupationsen matière de
securitédes pays voisins; ...'
131. The same considerations apply to the Sirte
Agreement concluded on 18 Aprill999, which is also relied on
by the DRC (Memorial, para. 2.66). Once again , it is necessary
to examine the text as a whole. The textof the agreement (apart
from the preamble) is as follows:
"Les signataires du présent Accord ont pris les
décisionssuivants:
réaffirmation de la sécuritéet de l'intégritédes
frontièrespolitiques de tous les États;
cessation immédiate des hostilités afin d'ouvrir la
voie au dialogue etàun règlementpacifique;
déploiement de forces de paix africaines neutres
dans les zones ou se trouvent des contingents
ougandais, rwandais et burundais à rintérienr de la
Républiquedémocratiquedu Congo;
retrait de tous les soldats ougandais et rwandais
parallèlement à l'arrivée des forces de paix
africaines;
les signataires du présent Accord condamnent tous
les actes de violence et les massacres commis et
réaffirmentla nécessitéde rechercher les tueurs, de
les punir et de les désarmer;
encouragement à la République démocratique du
Congo pour qu'elle engage un dialogue national
entre toutes les Parties;
retrait de toutes les forces étrangèresprésentes en
République démocratique du Congo dès la
conclusion d'unaccord de paix;
88 toutes les Parties s'engagent à s'abstenir de toute
action visant à renverser le régimeen République
démocratique du Congo;
respect du principe de non ingérence dans les
affaires intérieuresd'unpays;
accent mis sur le rôle moteur que continue de jouer
le grand leader frèreen qualitée coordinateur pour
la paix dans la régiondes Grands Lacs, pour créer
les conditions et le mécanismeainsi que pour assurer
la liaison avec le présidentShiloba et pour accélérer
le processus de paix." (MDRC Annex 65,
underliningadded).
132. As the text of the document makes clear, the
exercisewaspart of an on-goingpeace process. The Agreement
was between five Heads of State, including President Museveni
of Uganda There is no evidence here of illegal activity on the
part of Uganda. Moreover, the withdrawal of armed forces is
clearly conditionalupon other events.
133. The DRC also relies upon the Lusaka Agreement
of 10 July 1999. See the Memorial, para. 2.67. Again, the
instrument is not concerned with the attribution of State
responsibilityand, as a peace agreement,is neutral in content.
134. In the remaining paragraphs relating to the
Ugandan "intervention," the DRC relies upon a series of
documents which refer to the presence of Ugandan forces, but
are, in other respects,question-begging.ee paras. 2.69 to 2.76.
135. In paragraphs 2.77 to 2.92 the DRC invokes
resolutions and other documents emanating from organs of the
United Nations. The probative value of these materials will be
analysed elsewhere,in ChapterIX.
136. In paragraphs 2.93 to 2.101 the DRC invokes
documents emanating from other international organisations,
including the OAU and the EU, the significance of which will
be examinedelsewhere.
89 137. The DRC invokes a small number of reports
from "local and international NGOs." See paras. 2.102 to
2.106. The first such item (MDRC Annex 89) is a document
produced by a political organization of the DRC (COJESKI). In
this context, it is toe noted that the murders reported in this
document are attributed to the forces of Rwanda and Burundi.
In any case COJESKI is of questionable credibility. It was
established in 1997 and bas been strongly pro-Kabila. A second
item is ascribed to theLOTUS group (MDRC Annex 93). No
information about the LOTUS group, or the provenance of this
document otherwise, isprovided.
Alleged Active Support for lrregular Forces in
theDRC
138. In the first place the DRC invokes various
resolutions and other documents emanating from the organs of
the United Nations. See the Memorial, paras. 2.108 - 2.119.
The probative value of this material will be analysed elsewhere
in Chapter IX. For the present it is important tonote that the
passages quoted in the Memorial do not contain any evidence
on which a finding of State responsibility could properly be
based.
139. In the same section the DRC relies upon
statements appearing in the Reports of the Special Rapporteur
of the Human Rights Commission. See the Memorial, paras.
2.113 - 2.119. The statements quoted are, as their phrasing
indicates, not based upon direct knowledge or persona!
investigation.
140. The DRC also relies upon statements taken out
of context from other documents in the form of an EU
Statement and a report of Human Rights Watch. See the
Memorial, paras. 2.121 and 2.122. It is submitted that these
statements are irrelevant to the issue imputability. Indeed, if
the Human Rights Watch document is studied (MDRC Annex
·86) it will be found that its ''Recommendations" read in part as
follows:
''HumanRights Watch condemns in the strongest
terms the conduct of the Government of Rwanda
90 and the Rassemblement Congolais pour la
Démocratie(RCD) and the Mai-Mai and Hutu
anned groups operating in Eastern Congo
describedin this report, and calls uponparties
to respect international humanitarian law. In
particular, ali parties to the conflict must desist
fromtargetingciviliansfor attack.
To the Govemment of Rwanda and the
Rassemblement Congolais pour la Démocratie
(RDC):
* Immediately cease all attacks on
civilians; investigate reports killing, torture,
rape of civilians, and looting of civilian property
by RCD and Rwandan forces and their allies;
and hold those responsible accountable. In
particular, abuses by Rwandan troops should be
prosecuted in Rwanda. RCD authorities should
establish internai investigations to look into
violationsof international humanitarian law by
itsforces." (MDRCAnnex 86).
141. The DRC also invokes various reports from
press digests and newspapers which are supposed to constitute
evidence. See the Memorial, paras. 2.123 - 2.134. The
GovemmentofUganda submitsthat these reports are unreliable
and cannot satisfythe standardofproofwhich is appropriate.
142. The Memorial of the DRC also claims that
President Museveni of Uganda made an admission of
"aggression" at the Non-Aligned Countries Summit held at
Durban on 3 September 1998. See the Memorial, para. 2.64.
The source is not quoted and there is nothing in the words
quoted by the DRC which constitutes an admission of
responsibility.
143. In conclusion, the DRC alleges that the
Govemment ofUganda has recognised the material facts. The
Govemment of Uganda denies this. In particular, the DRC
asserts that Ugandadid not deny support to Congolese rebels in
the course of the oral hearings before the Court (CR 2000/23).
91The Govemment of Uganda rejects this reading of the record.
Thus, in opening his speech to the Court, Mr. Brownlie
presented four propositions. The fourthreads as follows:
"Fourthlv. whilst the issues of merits are not
before the Court, any action taken by the
Govemment of Uganda has been in accordance
with the principles of the United Nations
Charter."
Alleged Organized Looting ofNatural Resources
andAssets
144. In the following section, allegations are made
concerning the looting of natural resources of the DRC. The
DRC relies upon a seriesof documents, as follows:
The Securitv CouncilResolution dated 24
February 2000 CMDRCAnnex 5).
145. This Resolution mak:es no finding of the
responsibility of individual States in respect of the reports of
illegal exploitationofresources.
The Securitv CouncilResolution dated 16June
2000 <MDRCAnnex 6)
146. This Resolution makes no finding of the
responsibility of individual States in respect of the illegal
exploitation ofnatural resources.
Letterof the Secretary-Generalto the Security
Council dated 18April2000 (MDRC Annex 34)
147. This letter is concemed with the functioning of
MONUC and does not refer to any question of the responsibility
of individual States.
SpecialRapporteur of the Human Rights
Commission: Report dated 17 Se.ptember1999
(MDRCAnnex 41)
92 148. In paragraph 41 of this Report there is a
reference to "la fuite des richesses nationales vers l'Ougandaet
le Rwanda;...." This passing reference involves no adequate
determination of imputability.
The ObservatoireGouvernance-Transparence
Report dated 10April2000 (MDRC Annex 92)
149. This Report was published in Kinshasa, and is
dated 10 April 2000. Nothing is known about the organization
which commissioned the Report or the personnel who were
responsible for its compilation.Observers of the human rights
picture in the DRC have not heard of this organisation. In the
submission of the Govemment of Uganda it is not a reliable
source.
CertainPolitical Declarations emanating from
Kinshasa (MDRC Annex 141)
150. These documents are clearly not reliable for
purposes of a determinationof legalresponsibility.
Press Reports CMDRCAnnex 128.MDRC
Annex 134,and MDRC Annex 137)
151. Finally, the DRC relies upon certain press
reports. Memorial, para. 2.150. These can be examined
seriatim:
• Le Monde (MDRC Annex 128). This contains no
allegation that the Govemment of Uganda is
involved in the activitiesreferred to.
• Le Monde (MDRC Annex 134). Similarly this
report makes no allegation that the Govemment of
Uganda is involvedin illegal activities.
• Le Monde Diplomàtique (MDRC Annex 137). The
Govemment of Uganda reserves its position
generally in relation to the contentsf this report.
For present purposes, it is sufficient to point out that
93 the report makes no assertions of fact relevant to the
contentions of the DRC.
152. These documents and other materials do not
provide any reliable evidence of the responsibility of Uganda.
In any case the Government of Uganda strongly denies any
participation in the looting of the natural resources of the DRC.
Allegations Concerning the Treatment of the
Civilian Population
153. In the section devoted to allegations concerning
the treatment of the civilian population, the DRC relies almost
exclusively upon documents emanating from the organs of the
United Nations. See paras. 2.151to 2.164 The probative value
of such materia1 will be examined elsewhere, in Chapter IX.
For the present it is submitted that none of the documents
invoked provides any evidence on which a finding of State
responsibility could properly be based.
154. The DRC invokes a report by the CO.TESKI
organisation (MDRC Annex 89). This is a political
organisation of the DRC. Moreover, the murders reported in
this document are attributed to the forces of Rwandi and
Burundi, and not Uganda. The other NGO document relied
upon (MDRC Annex 90) makes an isolated assertion wi:th no
sources or details provided. Lastly, there is a reference to an
ICRC statement (MDRC Annex 87) which refers exclusively to
the fighting in Kisangani.
155. In her conclusion on this question the DRC
quotes from the Order of the Court dated 1 July 2000. See the
Memorial, para 2.169. Unfortunately, the DRC does not refer
also to the following passage from the Order:
"Whereas a decision in the present proceedings
in no way prejudges the question of the
jurisdictionof the Court to deal with the merits
of the case, or any question relating to the merits
themselves..." (para. 46).
94E. Reliance By The DRC Upon Matters Of Public
Knowledge
156. The DRC relies to a certain extent upon evidence
which (it is assumed) constitutes matters of public knowledge.
In this connectionthe Govemment ofUganda would recall the
carefully weighed observations of the Court in its Judgment in
the Merits phase of the Nicaragua case. In the words of the
Court:
"62. At ali events, in the present case the Court
has before it documentary material of various
kinds from various sources. A large number of
documents have been supplied in the form of
reports in press articles, and sorne also in the
form of extracts from books. Whether these
were produced by the applicant State, or by the
absent Party before it ceased to appear in the
proceedings, the Court has been careful to treat
them with great caution; even if they seem to
meet high standards of objectivity, the Court
regards them not as evidence capable of proving
facts, but as material which can nevertheless
contribute. in sorne circumstances. to
corroborating the existence of a fact, i.e. as
illustrativematerial additionalin other sources of
evidence.
63. However,althoughit is perfectlyproper that
press information should not be treated in itself
as evidence for judicial purposes, public
knowledge of a fact may nevertheless be
established by means of these sources of
information, and the Court can attach a certain
amount of weight to such public knowledge. In
the case of United States Diplomatie and
Consular Staff in Tehran, the Court referred to
facts which 'are, for the most part, matters of
public knowledgewhich have received extensive
coverage in the world press and in radio and
television broadcasts from Iran and other
95 countries' (I.C.J. Reports 1980, p. 9, para. 12).
On the basis of information, including press and
broadcast material, which was 'whollyconsistent
and concordant as to the main facts and
circumstances of thecase,' the Court was able to
declarethat it was satisfied that the allegations
fact were well-founded (ibid., p. 10, para. 13).
The Court has however to show particular
caution in this area. Widespreadreports of a fact
may prove on closer examination to derive from
a single source, and such reports, however
numerous, will in such case have no greater
value as evidence than the original source. It is
with this important reservation that the
newspaper reports supplied to the Court should
be examined in order to assess the facts of the
case, and in particular to ascertain whether such
facts were matters of public knowledge." (I.C.J.
Reports, 1986,pp. 40-1, underliningadded).
157. It is self-evident that such evidence of public
knowledge may not always provide safe evidence of
imputability and of actual political re1ationships. In the
Nicaragua case the Court was in practice reluctant to rely upon
this typeof evidence in relation to questions of imputability of
covert actions. In any case, a high proportion of the Court's
determinationsof fact were based upon admissionscontained in
official documents.
F. The Burden of Proof and Standard of Proof
158. It is generally accepted that the burden of proof
is upon the claimant State, which ''mustprove its contentions
under penalty of having its case refused." Simpson and Fox,
InternationalArbitration,London, 1959,p. 194.
159. More practically significant must be the standard
of proof in cases of State responsibility, more especially where
allegations of grave misconduct are involved. In the Corfu
Channelcase (Merits)the Court statedthe general standard:
96 "The Court must examine therefore whether it
bas been established by means of indirect
evidence that Albania bas knowledge of mine
laying in ber territorial waters independentlyf
any connivance on ber part in this operation.
The proof may be drawn from inferences of
fact, provided that they leave no room for
reasonabledoubt. The elements of fact on which
these inferences can be based may differ from
those which are relevant to the question of
connivance." (emphasis in the original) (I.C.J.
Reports, 1949, p. 18).
160. Of greater significance is the reaction of the
Court to the second alternative argument of the United
Kingdom to the effect that the minefield was laid with the
connivance of the Albanian govemment. The Court observed
that-
"A charge of such exceptional gravity against a
Statewould require a degree of certainty that bas
not beenreached here." (ibid.,p. 17).
161. This view of the position bas been affirmed by a
former Judge of the Court, Sir Gerald Fitzmaurice. In his
words:
"(a) Charges of exceptional gravity against a
sovereign state or its Govemment require to be
established by conclusive evidence inv.olvinga
high degree of certainty. In the Corfu case there
was a good deal of evidence, sorne of it to show
that a minefieldin Albanianwaters bad been laid
by anotherPower. While the Court accepted the
fact that the mines could not have been laid by
Albania, which did not possess the necessary
rneans,and must have been laid by sorneoutside
agency (though, as the Court found, with
Albania'sknowledge),the Courtcould not accept
as adequate the evidence pointing to a particular
Power. The eyewitness evidence, it said, could
97 be regarded 'only as allegations falling short of
conclusive evidence', and the evidence founded
on presumptionled 'tono finn conclusion.' The
Court also made the following general
pronouncement (I.C.J., 1949, 17): 'A charge of
such exceptional gravity against a State would
require a high degree of certainty that bas not
been reached here."' (The Law andProcedureof
the International Court of Justice, Vol. 1,
Cambridge,1986,pp. 126-7).
162. These principles goveming the law of evidence
areof greatrelevancein these proceedings.
G. Conclusion
163. The conclusion must be that there is no case to
answer.
98 CHAPTER VIII
THE PROCEDURAL ANOMALIES EXHIBITED BY
THE MEMORIAL
A. Introduction
164. In the present chapter the object is, as a sequel to
Chapter VIT,to focus upon the substantial procedural anomalies
which constitute the bases of the Memorial filed by the DRC.
The anomalies are as follows:
First: the absence of adequate proof of the imputability of the
conduct alleged to the Respondenttate;
Second: the absence of proof of damage;
Third: the absenceof a link between the bases of claim and any
justiciable claims formulated in the Memorial.
165. Following a review of these substantial
anomalies certain conclusions will be drawn.
B. The AbsenceOf Any Or Any Adeguate Proof Of The
Imputability Of The Conduct Alleged To The
Respondent State
166. In the previous chapter the Govemment of
Uganda has analysed the inadequacies of the modalities adopted
by the Govemment of the DRC in respect of evidence of the
imputabilityof the conduct alleged to the Respondent State.
This lack of adequate evidence affects ail the allegations of fact
contained in the Application.
167; In addition; in respect of a number of the
incidents referred to in the Application, there is reliable
evidence to show that the Govemment ofUganda did not have
any presence in the relevant area at the material time. This is
the position in relation to the following incidents:
99(i) On 2 and 3 August 1998, colurnns of Ugandan army
trucks carrying heavily armed soldiers breached the
eastern frontiersf the Congo and occupied the cities of
Goma and Bukavu.
(ii) At the same time as these events were taking place in the
east of the country, in Kinshasa approximately 1000
Ugandan soldiers, having evaded the repatriation
operation ordered by the Congolese government and
acting with the support of so-called "Banyamulenge"
units, attacked the military camps of Tshatshi and
Kokolo.
(iii) On Tuesday 4 August 1998, three Boeings belonging to
Congolese companies (Congo Airlines, Lignes aériennes
congolaises and Blues Airlines) were forced to reroute
from Goma (Nord-Kivu) to themilitary base of Kitona
(Bas-Congo}, with 600 to 800 Ugandan soldiers on
board.
(iv) On Sunday 9 August 1998, two columns of Ugandan
soldiers violated the territorialintegrity of the
Democratie Republic of the Congo. The fust column
was made up of 3 armoured vehicles and 7 "KV''trucks,
wbile the second comprised 7 armoured cars. Having
crossed the frontier between Kamango and Watsa, they
advanced on Bunia, rnOrientale Province.
(v) On Monday 3 August, at around 4 p.m. 38 officers and
sorne 100 soldiers of the Congolese Armed Forces,
having previously been disarmed, were murdered at
Kavumu airport.
(vi) On 24 August 1998, more than 856 persons were
massacred at Kasika, in Lwindi chieftaincy and in the
territoryf Mwenga, ali being localities situated in the
Province of Sud-Kivu. The bodies which were found
scattered over a distance of 60 kilometers between
Kilungutwe and Kasika, were largely those of women
and children - defenceless persons incapablef bearing
arms.
100(vii) On the night of 31 December 1998 to 1 January 1999,
633persans weremassacredin Makabola.
(viii) There have been numerous cases of rape of women and
children, particularly on 29 August 1998 in Kasika, on
22 Septemberin Bukavu, etc.
(ix) During the fust three months of the invasion of Sud
Kivu, numbers of opinion-formers and activists of the
Associative Movement of Sud-Kivu were abducted
and/ormurdered.
(x) In and around Bukavu there have been murders and
massacres of the civilian population, as well as
abductions, arbitrary arrests, illegal detentions, rape,
extortionandtorture.
(xi) On 15 September 1998, the Mumba Health Centre was
lootedby Ugandansoldiers.
In Bukavu, the Provincial Headquarters of
Customs and Excise, the Office of the National
Inspectorate (Office congolais de contrôle), and
the Provincial Taxation Office, ali revenue
generating public undertakings, had their safes
ransacked. In Kalemie, Ugandan troops
sabotaged port installations and varions other
undertakings (including dismantling of the
Filtisaf factories), looting and carrying off
handling and loading equipment and certain
privatelyowned items of floatingplant.
(xii) To ensure that there would be no witnesses to their
actions, Ugandan troops forced ali international
humanitarian organizations, in particular the UNHCR,
ICRC, UNICEF, the WHO and MSF, to leave the area.
Ugandan troops systematically destroyed or
disconnected ali telecommunications facilities so as to
ensurethat their actions would not come to the notice of
national and international public opinion, at the same
time they confiscated the passports of human rights
activists.
101 168. These specifie allegations by the DRC will be
examinedin detail in ChapterXIV below.
169. The result of the method of presentation is
clearly incompatible with normal practice in international
litigation. Article 49 of the Rules of Court provide that a
Memorial "shall contain a statement of the relevant facts, a
statementoflaw, andthe submissions." Implicitin this succinct
normative statement is the dutyto adduce evidence in order to
provide adeguate proof of the allegations of violations of legal
obligations on the partf the RespondentState. The Memorial
does not satisfythese basic proceduralstandards.
C. The Fondamental Confusion In The Memorial
Between The Proof Of Violations Of Legal
Obligations And The Issue Of Quantum Of Damage
170. The most fundamentalconfusionwhichpervades
the entire Memorial is the erroneous beliefof the DRC that,
because the quantum of damageis properly left to a subsequent
compensation phase, therefore proof of violations of. legal
obligations (that is, proof the existence of damage) can also
be postponed. The passages from.the Memorial in which this
confusion is encapsulated have been quoted above in Chapter
VII.
171. In paragraph 6.29 of the Memorial the DRC
relies upon the following passage from the Judgment of the
Courtin the Merits phaseof the Nicaraguacase:
''TheCourt considers appropriate the request of
Nicaragua for the nature and amount of the
reparation due to it to be determined in a
subsequent phase of the proceedings. While a
certain amount of evidence has been provided,
for example, in the testimonyof the Nicaraguan
Minister of Finance, of pecuniary loss sustained,
this was based upon contentions as to the
responsibilityof the United States which were
more far reaching than the conclusions at which
the Court has been able to arrive. The
opportunity should be afforded Nicaragua to
102 demonstrate and prove exactly what injury was
suffered as a result of each action of the United
States which the Court has found contrarv to
international law. Nor should it be overlooked
that, while the United States has chosen not to
appear or participate in the present phase of the
proceedings, Article 53 of the Statute does not
debar it from appearing to present its arguments
on the question of reparation if it so wishes.On
the contrary, the principle of the equality of the
Parties requires that it be given that opportunity
It goes without saying, however, that in the
phase of the proceedings devoted to reparation,
neither Party may cali in question such findings
in the present Judgment as have become res
judicata." (I.C.J. Reports, 1986, pp. 142-43,
para. 284, underliningadded).
172. In this passage, and again in the DiSjlositif(ibid.,
pp. 146-9), the Court is dealing with the question of reparation
"as a result of each action" of the Respondent State "which the
Court has foundcontrary to internationallaw." Thus reparation
is conditional upon a prior finding of responsibility for a
violationof an obligation.
173. Dr. Shabtai Rosenne has described the position
as follows:
''Thosecases indicate that if the Court finds that
reparation is due for breaches of international
law, it will fix an appropriate procedure which
can include further written and oral proceedings
leading to a judgment limited to the issue of
reparation. The parameters of that phase are
fixed by the res judicata on the merits." (The
Law and Procedure of the International Court,
Vol. ill, p. 1247,underliningadded).
174. In this respect the mode of presentation adopted
by the DRC is contrary to the appropriate standards of the
administration of justice, clearly incompatible with the
103necessary fonction of a Memorial,and in breach of the
Rules of Court. No reparation is due unless the Court bas
establishedthe existence ofbreaches of international law. Such
breaches must be establishedat the Meritsphase, if reparation is
to become due and to necessitate assessment in the
Compensationphase.
D. There Is No Link In The Memorial And Submissions
Between The Bases Of Claim And The Proof Of
Damage
175. The Submissions presented in the Memorial, in
relation to the content of the pleading taken as a whole, fail to
relate any evidenceofbreaches of legal obligations to the bases
of claim referred to both in the body of the Memorial and in the
Submissions themselves. In the result the Submissions are
defective.
176. In relation to the significance of the final
submissions (Article 60, para. 2 of the Rules of Court) Dr.
Rosenne bas this to say:
"A degree of solemnity attaches to the final
submissions, and this emphasizes their
importance as defining the precise issue on
which the Court'sdecision isrequired. The final
submissions are the ultimate precision of the
dispute and the formulation of what each party
wants the Court to state in the operativeclause
its decision. The efficacy of the adjudication to
resolve the difference between the parties
depends on their formulation." (footnote
omitted) (op. citsupra, Vol.rn, p. 1376).
177. This comment refers to the final submissionsbut
it is submitted that the logic applies equally to the submissions
at the close of a Memorial. The essence of the operation is
conveyed in the Dictionnaire de la terminologie edited by
Basdevant,in the definitionof 'Conclusions':
''Termede procéduredésignantl'énoncé précis
de ce qu'une partie à une instance devant un
104 tribunal international demande à celui-ci de dire
et juger, cet énoncépouvant ètreparfois précédé
du résumédes motifs invoqués â l'appui, tout en
se distinguant de celui-ci." (Union Académique
Internationale, Dictionnaire de la terminologie
du droit international, edited by J. Basdevant,
Sirey, 1960, p.141; quoted by Rosenne, op. cit.,
Vol. Til,p. 1265).
178. The Submissions offered by the DRC in its
Memorial do not conform to these authoritative definitions of
the purpose of submissions, and, consequently, are not in
accordance with the Rules of Court. The necessary precision is
absent, and this will now be demonstrated.
179. By way of sampling the method adopted by the
DRC one of the bases of claim set forth in the Submissions may
be examined:
"La Républiquedémocratiquedu Congo, tout en
se réservantle droit de compléterou de modifier
les présentesconclusions, et de fournir à la Cour
de nouvelles preuves et de nouveaux arguments
juridiques pertinents dans le cadre du présent
différend,prie la Court de dire et juger : ....
2) Que la Républiquede l'Ouganda, en se livrant
à une exploitation illégale des ressources
naturelles congolaises, et en spoliant ses biens et
ses richesses, a violé les principes
conventionnels et coutumiers suivants :
le respect de la souveraineté des Etats, y
compris sur ses ressources naturelles;
le devoir de favouriser la réalisation du
. principe de l'égalitédes peuples et de leur
droit à disposer d'eux-mêmes, et par
conséquentde ne pas soumettre des peuples à
la subjugation, à la domination ou à
l'exploitationétrangères;
105 le principe de non-intervention dans les
affaires qui relèvent de la compétence
nationale des Etats, y compris dans le
domaine économique;.... "
180. The question is to discover the legal
underpinnings of this set of allegations presented as a request
to the Court. Chapter 1 of the Memorial is introductory in
character. Chapter II is in principle devoted to the
establishment of the facts. The section relating to the alleged
illegal exploitation of natural resources bas been analysed
above, in Chapter VII, paragraphs 24 to 32. The documents
presented as evidence of the attribution of conduct to the
Respondent State simply do not provide such evidence and the
material does not satisfy the criteria laid down the Court in
the Merits phaseof the Nicaragua case.
181. Chapter rn of the Memorial sets forth various
legal principles without any examination of questions of fact.
Chapter N is essentially an amplification of the legal principles
referred to in the previous chapter. Whilst Chapter N is
intended to deal with issues of fact (see para. 4.02), the
intention is only in general terms;en se prononcant à ce stade
de manière générale."The content consists of legal argument.
No evidence is referred to.
182. Chapter V is devoted to a lengthy examination of
hypothetical issues of legal exoneration. Chapter VI consists of
a disquisition of the general principles of State responsibility,
including the question of remedies. This contains certain
paragraphs which set out in general terms the allegations of
illegal exploitation of resources, but without any reference to
any evidence. The pertinent paragraphsread as follows:
"6.24 Une quatrième mesure impérieuseest
l'arrêitmmédiatde toute forme d'exploitationdes
ressources naturelles en ·territoire congolais, en
particulier les ressources minièresdu nord-est du
pays qui font l'objet d'un véritable pillage
organisédepuis de longues années.
106 6.48. En l'espèce,on prendra donc en compte
les pertes de gains encourues par la République
démocratiquedu Congo, notamment à la suite du
pillage des ressources naturelles dont elle est la
victimede lapart de l'Ouganda."
183. And finally, there are the Submissions presented
at page 273 of the Memorial, which now emerge as being
completelyunsupportedby adequate evidenceof imputability.
E. The Conseguence Of The Breaches Of The Rules Of
Court: The Role Of The Claimant State As An
lneffective Appearing State
184. In sorne national jurisdictions there is an
autonomousprocedure,allowing for a case to be "struck out" on
preliminary grounds and, in particular, on the basis that there is
no case to answer. It might be logical for the Rules of this
Court to permit such a plea as a form of preliminary objection.
In any event it is safe to assume that such a preliminary
objection would be rejected on the ground that it clearly
pertained to the merits.
185. Without suggesting any precise parallelism, the
situation is reminiscentto sorne degree of the difficulties which
faced the Court in the Merits phase of the Nicaragua case.
These difficultieswere explained by the Court as follows:
"One of the Court's chief difficulties in the
present case has been the determination of the
facts relevant to the dispute. First ail,there is
marked disagreement between the Parties not
only on the interpretation of the facts, but even
on the existence or nature of at least sorne of
them. Secondly, the respondent State has not
appeared during the present merits phase of the
proceedings, thus depriving the Court of the
benefit of its complete and fully argued
statement regarding the facts. The Court'stask
was therefore necessarily more difficult, and it
has had to pay particular heed, as s!lidabove, to
theproper application of Article 53 of its Statute.
107 Thirdly, there is the secrecy in wbich sorne of the
conduct attributed to one or other of the Parties
has been carried on. This makes it more diffi.cult
for the Court not only to decide on the
imputability of the facts. but also to establish
what are the facts. Sometimes there is no
question, in the sense that it does not appear to
be disputed, that an act was done, but there are
con.flicting reports, or a lack of evidence, as
to who did it.
The problem is then not the legal process of
imputing the act to a particular State for the
purpose of establishing responsibility, but the
prior process of tracing material proof of the
identity of the perpetrator. The occurrence of the
act itself may however have been shrouded in
secrecy. In the latter case, the Court has badto
endeavour first to establish what actually
happened, before entering on the next stage of
considering whether the act (if proven) was
imputable to the State to which it bad been
attributed." (I.C.J. Reports, 1986, pp. 38-39,
para. 57, underlining added).
186. In the present case the DRC bas completely
ignored its duty to present adequate evidence both as to the
existence of various facts alleged and as to the imputability of
the facts. The result is to present diffi.cultiesanalogous to those
adverted to by the Court in the Nicaragua case. In the present
case the Claimant State is, of course, an appearing State but,
when it cornes to the pleadings, her role is that of an
ineffectively pleading State. In terms of the task of the Court,
and the difficulties faced by both the Court and the Respondent
State, the result is much the same.
187. The evidential problems examined in this chapter
raise serious questions of procedural fairness. Such questions
lead on to the issue of judicial propriety, in case the Court, in
seeking a solution to the difficult problems of proof, should run
the risk of infringing the standards of procedural fairness. The
108Statute and Rules of Court clearly assume that such standards
are applicable. See the Statute, Article 53 relating to the non
appearing State, together with Articles 61 and 62.
109 PART ill
THE ROLE OF INTERNATIONAL ORGANISATIONS
110 CHAPTERIX
The Role of the Political Organs of the United Nations
A. The General Issue: The Probative Value Of
Determinations Of Fact By The Political Organs
188. A particular characteristic of the Memorial is the
extensive reliance upon the resolutions and other documents of
the political organs of the United Nations. It is thus necessary
to address the general issue of the probative value of
pronouncements on questions of fact proceeding from the
political organsf the United Nations.
189. In its Judgment in the Nicaragua case (Merits)
the Court expressed the following view on the admissibility of
certain types of evidence:
"It is equally clear that the Court may take
account of public declarations to which either
Party has specifically drawn attention, and the ·
text, or a report, of which has been filed as
documentary evidence. But the Court considers
that, in its quest for the truth, it may also take
note of statements of representatives of the
Parties (or of other States) in international
organizations, as well as the resolutions adopted
or discussed by such organizations, in so far as
factually relevant, whether or not such material
has been drawn to its attention by a Party."
(I.C.J. Reports, 1986, p. 44, para. 72, underlining
added).
190. The position of the Court is to be understood in
its context, for in the previous paragraph the Court makes clear
that it is intent on the significance of the material "as evidence
of specifie facts and of their imputability to the States in
question." Ibid., p. 43, para. 71. The context ofimputability is
stressed earlier in the Judgment. See ibid., pp. 38-39, para. 57.
111 191. In this connection it is useful to recall the
reservations expressed by Professor Sir Elihu Lauterpacht in
respect of the quasi-judicial activity of the Security Council.
The relevant passages include the following:
"It is evident that in reaching its conclusions
about the law the Security Council basnot acted
in a way that would normally be recognized as
judicial. Though it may have given the
'defendant' party an opportunity to put its case,
it certainly will not have heard evidence
presented in the systematic manner associated
with court proceedings, there will have been no
cross-examination of witnesses, there will have
been no detailed assessment of the legal
background and the legal factors; and, above ali,
the assessment of the evidence and the
determination of the law will not have been free
from collateral political considerations in the
same way as the process of reaching a truly
judicial conclusion would or should have been.
The usual procedure is that a draft resolution
expressing the conclusions of the Council will
have been circulated at an early stage in the
debate, perhaps even before its actual
commencement, and activity in the Council will
have been aimed at negotiating the final text of
the resolution and securing political adhesion to
it, rather than at reaching an impartial conclusion
based upon unbiased consideration of the facts
and objective examination of the law. Certainly,
there will be no statement by the Council as such
presenting a reasoned explanation of its
conclusions of law and fact in a manner
comparable to that of a judgment of a court of
law.
Now, there is no doubt that in the performance of
its tasks the Security Council must take certain
decisions which involve determinations of law .
112 and fact. Confronted by an anned attack by one
State upon another, it is bound to assess the
situation and apply to it the relevant Charter
provisions with ali appropriate expedition.
In many cases, the facts will be so clear that
there can be no doubt that the situation amounts
to "a threat to the peace, a breach of the peace or
an act of aggression". The system cannot be
criticized for authorizing the Security Council to
identify such a situation. But the question should
be asked: is there a line to be drawn between
those determinations which it is proper for the
Security Council to make as part of its activity
directed to the immediate restoration of peace
and those that go beyond the function by making
legal determinations that are - in the vocabulary
of the common lawyer - quasi-judicial?" (E.
Lauterpacht, Aspects of the Administration of
International Justice, Cambridge, 1991, pp. 42-
43).
192. It is to be noted that the doubts expressed by this
distinguished observer relate to situations in which the Security
Council bad directly addressed issues of legality and State
responsibility.
193. At this point it is appropriate to draw sorne
distinctions. The issue which is relevant for present purposes is
not the constitutional powers of the given organ under the
Charter, but the probative value of findings of fact contained in
resolutionsof the political organs and other documents.
194. And a further level of specificity is called for.
The DRC bas begun proceedings which involve a request to the
Court to make a series of determinations of issues which are, in
principle at least, matters of State responsibility. Accordingly,
the findings of fact contained in resolutions and the ~e must
have probative value specifically in relation to the issue of
imputability.
113 195. The further condition must be that the requisite
standard of proof must be satisfied. Sir Gerald Fitzmaurice has
summarised the position as follows:
"(a) Charges of exceptional gravity against a
sovereign state or its Governmentrequire to be
established by conclusive evidence involving a
high degree of certainty: In the Corfu case there
was a good deal of evidence, sorne of it to show
that a minefield in Albanian waters had been laid
by another Power. While the Court accepted the
fact that the mines could not have been laid by
Albania, which did not possess the necessary
means, and must have been laid by sorne outside
agency (though, as the Court found, with
Albania's knowledge), the Court could not accept
as adequate the evidence pointing to a particular
Power. The eyewitness evidence, it said, could
be regarded 'only as allegations falling short of
conclusive evidence', and the evidence founded
on presumption led 'to no firm conclusion'. The
Court a1so made the following general
pronouncement (I.C.J., 1949, 17): 'A charge of
such exceptional gravity against a State would
require a high degree of certainty that has not
been reached here."' (The Law and Procedure of
the International Court of Justice, Vol. 1,
Cambridge, 1986, pp. 126-27).
B. Resolutions Of The Security Councll Invoked By The
DRC
196. The problems can best be investigated by
examining the series of Security Council resolutions relied upon
by the DRC in its Memorial. These will be taken in
chronological order.
Resolution 1234 (1999), 9 April 1999 (MDRC
Annex 1)
197. The first of the series of resolutions makes no
detenninations of legal responsibility for violations of
114international obligations. The first four paragraphs are as
follows:
"1. Reaffirms the obligation of ali States to
respect the territorial integrity, political
independence and national sovereignty of the
Democratie Republic of the Congo and other
States in the region, including the obligation to
refrain from the threat or useof force against the
territorial integrity or political independenceof
any State or in any other manner inconsistent
with the purposes of the United Nations, and
further reaffirms the need for ali States to refrain
from any interference in each other's internai
affairs, in accordance with the Charter of the
United Nations;
2. Deplores the continuing fighting and the
presence of forces of foreign States in the
Democratie Republic of the Congo in a manner
inconsistent with the principlesof the Charter of
the United Nations, and calls upon those States
to bring to an end the presenceof these uninvited
forces and to take immediatesteps to that end;
3. Demands an immediatehait to the hostilities;
4. Calls for the immediatesigning of a ceasefire
agreement allowingthe orderly withdrawal of ali
foreign forces, the re-establishment of the
authority of the Govemment of the Democratie
Republic of the Congo throughout its territory,
and the disarmament of non-govemmental armed
groups in the DemocratieRepublic ofthe Congo,
and stresses, in the contextof a lasting peace:fill
settlement, the need for the engagement of ~Il
Congolese in an ali-inclusiveprocess of political
dialogue with a view to achieving national
reconciliation and to the holding on an early date
of democratie, free and fair elections, and for the
provision of arrangements for security along the
115 relevant international borders of the Democratie
Republic of the Congo; ...."
Resolution 1258 0999) 6 August 1999 CMDRC
Annex2)
198. This resolution was intended to provide support
to the peace process and ceasefire initiated by the Lusaka
Agreement of 10 July 1999. The text contains no
determinations of State responsibility.
Resolution 1273 (1999), 5 November 1999
CMDRCAnnex 3)
199. This resolution (in its preamble) reaffirms that
the Lusaka Agreement represented "a viable basis for a
resolution of the conflict in the Democratie Republic of the
Congo." The text contains no determinations of State
responsibility.
Resolution 1279 (1999). 30 November 1999
CMDRCAnnex 4)
200. This resolution also reaffirms the rote and
significance of the Lusaka Agreement, and provides a mandate
for MONUC, the UN military observers mission. The text
contains no determinations ofState responsibility.
Resolution 1291 (2000). 24 Februarv 2000
CMDRCAnnex 5)
201. The content of this resolution is arranged within
the :frameworkof the Lusaka Ceasefire Agreement, and, in the
fust paragraph-
"Calls on all parties to fulfil their obligations
under the Ceasefire Agreement; ...."
The text contains no determinations of State responsibility.
Resolution 1304 (2000). 16 June 2000 CMDRC
Annex6)
116 202. This resolution bas a special significance in that
it contains explicit references to individual States. The key
paragraphs for present purposes are as foliows:
''TheSecurity Council,
Acting under Chapter VII of the Charter of the
UnitedNations.
1. Calls on ali parties to cease hostilities
throughout the territory of the Democratie
Republic of the Congo and to fulfil their
obligations under the Ceasefire Agreement
and the relevant provisions ofthe 8 April2000
Kampala disengagement plan;
2. Reiterates its unreserved condemnation of
the fighting between Ugandan and Rwandan
forces in Kisangani in violation of the
sovereignty and territorial integrity of the
Democratie Republic of the Congo, and demands
that these forces and those allied to them desist
from further fighting;
3. Demands that Ugandan and Rwandan forces
as weli as forces of the Congolese armed
opposition and other armed groups immediately
and completely withdraw from Kisangani, and
calis on ali parties to the Ceasefire Agreement to
request the demilitarization of the city and its
environs;
4. Further demands:
(a) that Uganda and Rwanda, which have
violated the sovereignty and territorial integrity
of the Democratie Republic of the Congo,
withdraw ail their forces from the territory of the
Democratie Republic of the Congo, without
further delay, in conformity with the timetable of
117the Ceasefire Agreement and the 8 April 2000
Kampala disengagement plan;
(b) that each phase of withdrawal completed by
Ugandan and Rwandan forces be reciprocated by
the other parties in conformity with the same
timetable;
(c) that ali other foreign military presence and
activity, direct or indirect, in the territory of the
Democratie Republic of the Congo be brought to
an end in conformity with the provisions of the
Ceasefire Agreement;
5. In this context demands that ali parties
abstain from any offensive action during the
process of disengagement and of withdrawal of
foreign forces;
10. Demands that ail parties cease ali forms of
assistance and cooperation with the armed
groups referred to in Annex A, Chapter 9.1 of the
Ceasefire Agreement;
11. Welcomes efforts made by the parties to
engage in a dialogue on the question of
disarmament, demobilization, resettlement and
reintegration of members of ali armed groups
referred to in Annex A, Chapter 9.1 of the
Ceasefire Agreement, and urges the parties, in
particular the Government of the Democratie
Republic of the Congo and the Government of
Rwanda, to continue these efforts in full
cooperation;
12. Demands that ali parties comply in particular
with the provisions of Annex A, Chapter 12 of
the Ceasefire Agreement relating to the
normalization of the security situation along the
118 borders of the DemocratieRepublicofthe Congo
with its neighbours;....
203. This resolution makes express determinations
concerning the events in Kisangani, and in doing so implicates
both Uganda and Rwanda on an equal basis. More will be said
about this aspect of the matter in Chapter XV. However, it is
important to appreciate the significance of paragraphs 10, 11
and 12. The content of these paragraphs is significant,
involving as they do the obligationsof the DRC by virtue of the
Lusaka Agreement to remove the threat to the security of
neighbouring States, including Uganda, posed by armed groups
based on the territoryf the DRC.
204. Paragraph 14 of Resolution 1304 must now be
examined. It reads as follows:
"14. Expressesthe view that the Govemments
ofUganda and Rwanda should make reparations
for the lossof life and the property damage they
have inflicted on the civilian population in
Kisangani, and requests the Secretary-Generalto
submit an assessment of the damage as a basis
for such reparations;"
205. Here, for the first time, the Security Council uses
language which indicates a determination of a legal
responsibility in respectof specifie events. Over the years the
Security Council has on certain occasions made similar
determinations. An example may be given. After the Israeli
attack on Beirut airport in 1968 the Security Council adopted
the followingresolutionunanimously:
''TheSecurityCouncil,
"1. CondemnsIsrael for its premeditatedmilitary
action in violationof its obligations under the
Charter and the ceasefireresolutions;
119 2. Considers that such premeditated acts of
violence endanger the maintenance of the peace;
3. Issuesa solemn warning to Israel that if such
acts were to be repeated, the Council would have
to consider further steps to give effect to its
decisions;
4. Considers that Lebanon is entitled to
appropriate redress for the destruction it bas
suffered, responsibility for which has been
acknowledged by Israel."
206. The appearance of paragraph 14 confirms, by
way of contrast, that the previous resolutions bad eschewed any
findings of State responsibilityItis also clear from the text as
a whole that Resolution 1304 confines this type of
determination to the events in Kisangani. As the Resolution of
1968, quoted above, indicates, the Security Council has the
habit of using explicit language when the issue of State
responsibility is involved.
C. Statements Of Tite President Of The Security
Council
207. In addition to the Security Council resolutions
the DRC relies upon the following Statements of the President
of the Security Council:
31 Aug. 1998/MDRC Annex 14.
11Dec. 1998/MDRC Annex 15.
24 June 1999/MDRC Annex 16.
26 Jan. 20001 MDRC Annex 17.
5 May 2000 IMDRC Annex 18.
2 June 2000 IMDRC Annex 19.
208. With one exception these documents avoid any
determinations of responsibility or imputability, and in that
respect are uniform with the Security Council resolutions
themselves. The exception consists of the Statement of 5 May
2000 (MDRC Annex 18}, which relates to incidents in
Kisangani.
120D. Reports By The Secretarv-General
209. A further source relied upon by the DRC takes
the form of various Reports by the Secretary-General of the
United Nations as follows:
15 July 1999/MDRC Annex 20.
1November 1999/MDRC Annex 21.
17 January 2000/MDRC Annex 23.
18 April2000/MDRC Annex 24.
12 June 2000/MDRC Annex 26.
21O. These documents avoid determinations of
responsibility or imputability and thus reflect the content of the
relevant Security Council resolutions and the Statements the
Presidentof the Security Council, reviewed above. Indeed, the
DRC in its Memorial finds little to say about the Reports of the
Secretary-General. See the Memorial. pp. 74-75, para. 2.56;
and pp. 87-90, paras..81- 2.88.
211. In only one respect are these documents
concemed with imputability, that is, in relation to events in
Kisangani in 2000. See the Report of 12 June 2000, paras.
13-20.
E. Reports Of The Special Rapporteur Of The
CommissionOn Human Rights
212. Finally, the DRC relies upon the Reports of the
Special Rapporteur of the Commission on Human Rights, Mr.
Roberto Garret6n. See the Memorial, pp. 90-91, paras. 2.89 -
2.92. Three Reports are invokedby the DRC.
213. In the first Report, dated 8 February 1999
(MDRC Annex 42, para. 39) there is an incidental reference to
the "participation" of Rwanda and Uganda in the conflict. It is
submitted that this reference has no relevance in relation to
issuesof imputability. Similar references appear in the Report
dated 17 September 1999 (MDRC Annex 41, para. 39) and the
Report dated 18 January 2000 (MDRC Annex 43, para. 20, and
Annex IX). There can be little doubt that the issue which
concemed Mr. Garret6n, and which fell within his mandate, was
121the incidence of anned conflicts in the DRC. See Annex IX of
MDRC Annex 43. Such determinations are necessarily neutra!
in relation to the questionsraised in thepresent case.
F. Conclusion
214. In conclusion the Government ofUganda would
respectfully remind the Court of the observations contained in
its Judgment in the Merits phase of the Nicaragua case. In the
words of the Court:
"67. AB regards the evidence of witnesses, the
failureof the respondent State to appear in the
merits phase of these proceedings has resulted in
two.particular disadvantages. First, the absence
of the United States meant that the evidence of
the witnesses presented by the Applicant at the
hearings was not tested by cross-examination:
however, those witnesses were subjected to
extensivequestioning from the hench. Secondly,
the Respondent did not itself present any
witnesses of its own. This latter disadvantage
merely represents one aspect, and a relatively
secondaryone, of the more general disadvantage
causedby the non-appearanceof the Respondent.
68. The Court has not treated as evidence any
part of the testimony given which was not a
statement of fact, but a mere expression of
opinion as to the probability or otheiWiseof the
existence of such facts, not directlyknown to the
witness. Testimony of this kind,.which may be
highly subjective, cannot take the place of
evidence. An opinion expressed by a witness is
a mere persona! and subjective evaluation of a
possibility, which has yet to be shown to
correspond to a fact; it may, in conjunction with
other material, assist the Court in determining a
question of fact, but is not proof in itself. Nor is
testimony of matters not within the direct
knowledge of the witness, but known to him
122 only from hearsay, of much weight; as the Court
observed in relationto a particularwitness in the
Corfu Channel case:
'The statements attributed by the witness ... to
third parties,f which the Court has received no
persona! and direct confirmation, can be
regarded only as allegations falling short of
conclusive evidence.' (I.C.J. Reports 1949, pp.
16-17)." (I.C.J. Reports, 1986,p.42).
215. The carefully formulated concems of Professor
Sir Elihu Lauterpacht have already been quoted (above, para.
4). In the two paragraphs from the Court'sJudgment quoted
above other problems emerge, for there is surely an obvious
parallel with the present proceedings. The determinations of
political organs suffer from the same evidential drawbacks as
those indicated by the Court, and the DRC has not in its
Memorial takenany stepsto compensatefor such drawbacks.
123 CHAPTERX
THE ROLE OF THE ORGANISATION OF
AFRICAN UNITY
216. In the Memorial, and especially in Chapters 1and
ll,the DRC invokes a series of OAU documents, of which the
more important are as follows:
• 17 August 1998. Communique issued at the Close
of the Fiftieth Ordinary Session of the Central Organ
of the OAU Mechanism for the Prevention,
Handling and Settlement of Conflicts at the
Ambassadorial Level (MDRC Annex 51).
• 10 July 1999. Report of the Secretary-General of the
OAU on the situation inthe Democratie Republic of
the Congo (MDRC Annex 49).
• 23 September 1999. Report of the Secretary
General of the OAU on the Peace Process in the
Democratie Republic of the Congo (MDRC Annex
50).
• 1 October 1999. Communiquéissued at the Close of
the Fi:fty-Ninth Ordinary Session of the Central
Organ of the OAU Mechanism for the Prevention,
Handling and Settlement of Conflicts at the
Ambassadorial Level (MDRC Annex 52).
• 19 November 1999. Communiqué issued at the
Close of the Sixtieth Ordinary Session of the Central
Organ of the OAU Mechanism for the Prevention,
Handling and Settlement of Disputes at the
Ambassadorial Level (MDRC Annex 53).
• 19 November 1999. Briefing on Developments in
the DRC Peace Process (MDRC Annex 54).
• 19 November 1999. Briefing on the DRC (MDRC
Annex 55).
124 • 14 December 1999. Information on the
Development of the Peace Process in the Democratie
Republic ofthe Congo(MDRC Annex 56).
• 15 December 1999. Communiquéissued at the
Close of the Sixty-first Ordinary Session of the
Central Organ of the OAU Mechanism for the
Prevention, Handling and Settlementof Disputes at
the AmbassadorialLevel (MDRCAnnex 57).
• 14 April2000. Communiquéissued at the Close of
the Sixty-third Ordinary Session of the Central
Organ of the OAU Mechanism for the Prevention,
Handlin a~d Settlement of Disputes at the
AmbassadorialLevel(MDRCAnnex 58).
217. The involvement ofthe OAU in the crisis which
developed in 1998 was natural and the documents, with the
obvious exceptionof the fust in the list, are concemed with the
implementation of the Lusaka Ceasefire Agreement of 10 July
1999. The Government ofUganda was at every stage involved
in this pattern of diplomatie activity and participated in
meetings both at the ministerial level and at summit levet.
Uganda was a participant in the peace process, and for this and
other reasons, Uganda is not treated in the various documents as
adefendant State.
218. Inthe result not one of the documents invoked
by the DRC in the Memorial provides any support for the
allegations made againstUganda. No evidence involving the
imputabilityof illegal conduct t~y State is to be found in
these documents.
125 CHAPTERXI
THE ROLE OF THE SOUTHERN AFRICAN
DEVELOPMENTCO~TY
219. The Memorial invokes varions documents
re1ating to the Southern African Development Community
(hereinafterSADC). See pages27-30,paras. 1.06- 1.14.
220. The fust of these is a report of a meeting at
Victoria Falls on 8 August998of five of the fourteenDefence
Ministers of the SADC States. (MDRC Annex 118). The
relevance of this meeting to the present proceedings is not
explained by the Govemment of the DRC. See the Memorial,
para.1.06.
221. The second document is the Communiqueof the
Summit Meetings of the SADC on the Democratie Republic of
the Congo held at Pretoria on 23 August 1998. (UCM Annex
24). The Summitwas attendedby fifteenStates. The Heads of
State attending included H.E. President Museveni of Uganda.
The Communique contains no assertions relating to issues of
Stateresponsibility.
222. On 7 and 8 September 1998 there was held the
SecondVictoriaFalls Summitattendedby the Heads of State of
Angola, Congo, Namibia, Rwanda, Uganda, Zambia and
Zimbabwe together with the Secretary-General of the OAU.
See the Communique dated 8 September 1998. (UCM Annex
26). The Heads of State were concemed with establishing a
peace process and no determinations were made relating to
issues of State responsibility. As indicated above, H.E.
President Museveni of Uganda participated in the work of the
Summit.
223. On 26 and 27 October 1998 there took place a
Regional Meeting of Ministers of Foreign Affairs and Defence
on the situation in the DemocratieRepublicf Congo (Lusaka
1). This is discussed by the DRC in the Memorial, paragraph
1261.10, and it is there pointed out that at the meeting Uganda
recognized the presence of its troops in the DRC.
224. Against this background it is necessary to
examine the content of the Media Statement issued by the
Meeting on 27 October 1998. (UCM Annex 30). The material
passages are as follows:
"The meeting focused on issues relating to the
cessation of hostilities in the DRC, the
establishment of a Ceasefire Agreement, the
mechanism for implementing the Ceasefire
Agreement, the withdrawal of foreign forces,
addressing the security concems of the DRC and
the neighbouring countries as weil as other
follow-up mechanisms for facilitating the peace
process in the DRC.
At the end of a comprehensive review of ali
these issues, the meeting:
1. Adopted in principle a draft Ceasefire
Agreement and also a Mechanism for
implementing and Monitoring a Ceasefire
Agreement, pending further consultation with ali
concemed. In this regard, there was an
acknowledgment by Angola Namibia, Zimbabwe
and Uganda of the presence of their troops in the
DRC. Rwanda did not acknowledge the
presence of itroopsin the DRC.
2. Established a Mechanism for the
invo1vement of the rebels in working out the
modalities for the implem~nta tfi he
ceasefire.·In this regard, proximity talks with the
rebets were to be facilitated by the following:
Zambia as Chairman of the Meeting
TheOAU
The UN
SADC
Mozambique
127 South Africa
Tanzania
Within the framework of the established
Mechanism, consultations were undertaken with
the rebels in Lusaka on 26 and 27 October 1998.
3. With regard to the security concerns of the
DRC and the neighbouring countries, the
following countries- Angola, Burundi, Rwanda,
Uganda explained in detail their security
concerns. The meeting resolved to address these
concerns through a Mechanism involving
military experts to be established in the future."
225. This document, when read as a whole, reveals
that the exercise, which involved the Government of Uganda,
was about peace-keeping. The participating governments
recognise the security concerns of the neighbouring countries,
including Uganda, and "resolve to address those concerns ...."
226. Thus, there was no determination, on the part of
the fourteen participating states, of the existence of State
responsibility attnbutabletoany individual State. Instead, the
security concerns of Uganda, and of three other neighbours of
the DRC were given sympathetic consideration.
227. From 14 to 16 January 1999 there took place the
Regional Meeting of Ministers of Foreign Affairs and Defence
on the situation in the Democratie Republic of the Congo
(Lusaka Il).This is referred to briefly in the Memorial. para.
1.11. The Meeting was attended by delegations from fourteen
states, includingganda. The Communique issued at the close
of the conference demonstrates a continuity with the previous
meeting, and one of the working groups established was the
"Committee on Security Concerns in the DRC and the
neighbouring countries." For the Communique, see UCM
Annex35.
228. In paragraph 1.12 the Memorial of the DRC
refers to a meetingof the Committee of Experts on 29 January
1999 ('Lusaka ill')No Press Communique was issued.
128 229. Lastly, in paragraph 1.13 the DRC refers to the
meeting in Lusaka of the Committee on the Implementation of
the Ceasefire Agreement in the Democratie Republic of the
Congo from 16 to 17 April 1999. The Press Statement, dated
17 April 1999, provides no support for the assertions of the
DRC and is completely formai and neutral in tone. (UCM
Annex43).
230. In the result the documents invoked by the DRC
in the Memorial provide no support for the allegations made
against Uganda. No evidence involving the imputability of
illegal conduct to any State is to be found in these documents.
129 CHAPTERXII
OTHER REGIONAL SUMMIT :MEETINGS
231. The Memorial of the DRC (paras. 1.15 to 1.19)
also refers to the final communiques other regional meetings
at the Headof State level, as follows:
18October 1998. ConsultativeSummit ofHeads
of State of East Africa on the situation in the
DRC, Final Communique. (UCM Annex 28).
18 January 1999. Summit at Windhoek. (UCM
Annex 36).
25 February 1999. ConferenceofHeads ofState
and Government, Statement of Yaoundé on
Peace, Security and Stability in Central Africa.
(MDRCAnnex 63).
24 September 1999. Summit of Heads of State
of Central Africa, Libreville, Final Communique
(MDRCAnnex 61).
232. Although the DRC relies upon these documents
in its Memorial (pp. 31-33, paras. 1.15 - 1.19), the documents
themselves contain no determinationsof responsibility and are
concemed exclusively with the general problems of the
restorationof peace and security. Furthermore, the concems
addressed include the concems of the States which were
neighbours of the DRC, affected by the activities of armed
groups based upon the territoryf the DRC. The Summits of
18 October 1998 and 18 January 1999 were attended by His
Excellency Yoweri Kaguta Museveni,the President ofU ganda.
130 CHAPTER XIII
THE ROLE OF THE EUROPEAN UNION
233. In the Memorial,moreparticularlyin Chapter Il,
the DRC places reliance upon certain documents of the
European Union. The documentsincludedin the annexesare as
follows:
11August1998 Democratie Republic of
the Congo: Deterioration
of the Internai Situation,
Brussels. (MDRC Annex
72).
19August 1998 Democratie Republic of the
Congo: Humanitarian Situation,
Brussels.(MDRCAnnex 73).
27 August1998 Democratie Republic of the
Congo: Peaceful Solution,
Brussels.(MDRCAnnex 74).
17February1999 Declaration of the Presidency,
Brussels.(MDRCAnnex 75).
2 June1999 Declaration of the Presidency,
Brussels.(MDRCAnnex 76).
9 July 1999 Declaration of the Presidency,
Brussels.(MDRCAnnex77).
16July 1999 Declaration of the Presidency,
Brussels.(MDRCAnnex 78).
3 September1999 Declaration of the Presidency,
Brussels.(MDRCAnnex79).
22 September1999 Declaration of the Presidency,
Brussels.(MDRCAnnex 80).
131 11October 1999 Declaration of the Presidency,
Brussels.(MDRCAnnex 81).
26 November1999 Declaration of the Presidency,
Brussels.(MDRCAnnex 82).
12Apri12000 Declaration of the Presidency,
Brussels.(MDRC Annex83).
234. These documents tend to go in parallel to the
regional peace agreements and, in particular, they provide
generalpoliticalsupportto the LusakaCeasefireAgreementand
the subsequenteffortsto secureits implementation.
235. The purpose of the EU documents is to support
and enhance the peace process. The contents provide no
support whatsoever for the imputabilityof illegal conduct to
individualStates.
132 PART IV
QUESTIONS OF CAUSATION AND
IMPUTABILITY
133 CHAPTERXIV
THE IMPUTABILITY OFCERTAIN INCIDENTS
TOUGANDA
236. In its Application, the DRC levels a number of
serious accusations against Uganda, which it faits to
substantiate - and, in sorne cases, even to mention - in its
Memorial. As discussed below, the acts alleged by the DRC to
demonstrate Uganda's responsibility for armed aggression are
not imputable toUganda. Inmost cases, Ugandan troops were
not even present in the locations where these acts are alleged to
have occurred.
237. The DRC begins by describing a seriesf events
that are allegedo constitute an invasion of Congolese territory
by Ugandan troops. However, the DRC offers no reliable
evidence thatUgandan troops were involved in any of these
events. Following is a point-by-point refutation of the
allegations set forth in the DRC's Application.
"Les 2 et 3 août 1998. des colonnes
constituéesde plusieurs camions de l'armée
ougandaises. chargés de militaires
lourdement armés. ont violé les frontières
orientales congolaises pour investir les villes
de Goma et de Bukavu.7" (DRC
Application, Section I(A), para.l, underlining
added).
238. The DRC has offered no evidence to support this
assertion, which is not even repeated in its Memorial. In fact,
documents submitted by the DRC in support of its Application
and its Memorial specifically attribute these acts to the
Rwandan army. The White Paper on Massive Violations of
Human Rights and of the Basic Ru/es of International
Humanitarian Law by the Aggressor Countries (Uganda,
7 "On 2 and 3 August 1998 columns of Ugandan anny trucks carrying
heavily anned soldiers breached the eastern frontiersngo and
occupied the cities ofGoma and Bukaw."
134Rwanda and Burundi) in the Eastern Part of the Democratie
Republic of the Congo covering the period from 2 August 1998
to 5 November 1998 ("First White Paper"), which is included
as an Annex to the DRC's Application, states:
"On 2 and 3 August 1998, columns composed of
severa! Rwandan anny trucks, loaded with
heavily anned soldiers, violated the eastern
bordersof the Congo and occupied the cities of
Goma and Bukavu." (First White Paper, para.
13).
Similarly, on 31 August 1998 Ambassador André Mwamba
Kapanga, the DRC's Permanent Representative to the United
Nations, submitted a Memorandum to the President of the
Security Council stating:
"On 2 and 3 August 1998, with no advance
notice, columns made up of a number of
Rwandan Army lorries carrying heavily anned
soldiers violated the Congolese borders to invest
the towns of Goma and Bukavu." (MDRC
Annex 27, para. 27).
Neither the First WhitePaper nor Ambassador Kapanga's letter
indicates any involvementfUgandan soldiers in these events.
239. The only Ugandan forces present in Congo on 2
August 1998 were three UPDF battalions stationed in close
proximity to the Uganda-Congo border, where the ADF and
otheranti-Uganda rebels have been most active. Two of these
battalions had been posted in Beni and Butembo since
December 1997 at the invitationof the Congolese government,
which was memorialised in the Protocol Between the DRC and
the RepublicofUganda on Security Along the Common Border
dated 27 April 1998 (UCM Annex 19). The third UPDF
battalion was deployed to the same region for the same
purposes in April 1998, the same month that the Protocol was
signed. Beni and Butembo are located in close proximity to the
Ugandan border and much farther north than Goma or Bukavu.
No convoys of Ugandan anny trucks crossed Congo's eastern
135border on either 2 or 3 August 1998, and there were no
Ugandan troops present in either Goma or Bukavu on these
dates.
"Dans le mêmetemps que se déroulaientces
événementsà l'est du pavs [i.e.2 et 3 août
19981. à Kinshasa. un millier de soldats
ougandaisgui s'étaientsoustraitsà l'opérationde
rapatriement décrétéepar le Gouvernement
congolais, appuyés par des éléments dits
Banyamulenge. ont pris d'assaut les8camps
militaires Tshatshi et Kokolo. " (DRC
Application, Section I(A), para. 2, underlining
added.)
240. The DRChas offeredno evidenceto supportthis
assertion. As discussed in the preceding paragraph, the only
Ugandantroops on Congo's territorin earlyAugust 1998were
the three UPDF battalions stationed in Beni and Butembo
pursuant to the Congolese government's invitation and the
subsequent bilateral protocol between Uganda and Congo.
There were no Ugandan troops in Kinshasa, and no Ugandan
soldiers were involved in any attacks on Tshatshi or Kokolo
military camps that may have taken place. Moreover, the
Congolese government never ordered the repatriation of
Ugandantroops.
241. The DRC is weil aware that the UPDF did not
attackTshatshiandKokoloin August 1998or at anyothertime.
The Memorandum that AmbassadorKapanga submitted to the
President of the SecurityCouncilon 31 August 1998,states:
"At the same time as these events were taking
place in the east of the country [i.e.,2 and 3
August 1998], in Kinshasa a group of Rwandan ·
8
"At the same time as these events were taking place in the east of
the country [i.e., 2 and 3 August 1998), in Kinshasa approximately 1,000
Ugandan soldiers, having evaded therepatriation operation ordered by the
Congolese government and acting with the support of so-called
'Banyamulenge'units, attacked the military camps ofTshatsbi andKokolo."
136 soldiers which had evaded the repatriation
operation attacked the Tshatshi and Kokolo
camps." (MDRC Annex 27, para. 28).
The United Nations Special Rapporteur on Human Rights, Mr.
Roberto Garret6n, likewise attributed responsibility for these
attacks to the Rwandan army:
"On 2 August [1998], there was an uprising of
Banyamulenge and Rwandan soldiers in
Kinshasa (Kokolo and Tcahtchi); they
announced that the FAC would depose Kabila on
the grounds of corruption, nepotism and
dictatorial bearing. The uprising resulted in
numerous deaths and injuries." (MDRC Annex
42, para. 36).
Neither Ambassador Kapanga nor the United Nations Special
Rapporteur on Human Rights made any reference to Ugandan
soldiers.
"Le mardi 4 août 1998. trois avions Boeing. des
companies congolaises (Congo Airlines, Lignes
aériennescongolaises et Blues Airlines) ont été
détournésau départde Goma <Nord-Kivu) pour
atterrir à la base militaire de Kitona (Bas-Congo)
avec six cents à huit cents militaires ougandais"
(DRC Application, Section I(A), para. 3,
underlining added).
242. Once again, the documentation submitted by the
DRC accuses Rwandan soldiers and makes no reference to
Ugandan soldiers. The First White Paper states:
"On Tuesday 4 August 1998, three Boeing
aircraft belonging to Congolese companies
9 "On Tuesday 4 August 1998, three Boeings belonging to Congolese
companies (Congo Airlines, Lignes aériennes congolaises and Blues
Airlines) were forced to reroute from Goma (Nord-Kivu) to the military base
ofKitona (Bas-Congo), with0 to 800 Ugandan soldiers on board."
137 (Congo Airlines, Lignes Aériennes Congolaises
and Blue Airlines) were hijacked on leaving
Goma, Nord-K.iw, and forced to land at the
K.itona, Bas-Congo, military base, carrying00-
800 Rwandan soldiers. Mr. James K.abarehe, a
Rwandan citizen who until July 1998 had served
as the acting FAC Chief of Staff: was the
primary instigator of this operation, which bad
several pwposes .... (First White Paper, para.
16).
This incident is also discussed in the Memorandum that
Ambassador K.apangasubmitted to the President of the Security
Council. The Memorandum states:
"On Tuesday, 4 August 1998, three Boeing
aircraft from Congolese airlines, namely Congo
Airlines, LAC and Blue Airlines, were ·diverted
on leaving Goma by James Kabarehe, a
Rwandan national, who until July 1998 had been
serving as actingChief of Staff of the Congolese
armed forces. They landed at Kitona and
disembarked sorne 800 Rwandan troops there
.... " (MDRCAnnex 27, para. 30).
Similarly, according to the United Nations Special Rapporteur
on Human Rights:
"On 4 August, in a plane leaving from Goma, the
rebels moved Rwandan troops to the west,
particularly to K.itona and Muanda, in order to
attack Kinshasa from two sides. They captured
several towns and the power stations supplying
the capital, but were finally dislodged by
government forces, with the support of Angolan
troops." (MDRC Annex 42, para. 36).
243. None of the documentation submitted by the
DRC suggests that Ugandan troops played a role in the alleged
hijacking of Congolese planes. The sole evidence cited by the
DRC to support this allegation is the statement of W. lnyang
138(cited at paragraph 2.21 of Congo's Memorial), the Nigerian
captain of another aircraft leased by Lignes Aériennes
Congolaises that was also allegedly boarded by Ugandan
soldiers. DRC does not elaborate on the content of Captain
Inyang's statement and does not attach it as an Annex to its
Memorial, but alleges that it is "highly revealing." In fact, the
summary of Captain lnyang's statement referenced in the
DRC's Memorial, which the Government of Uganda obtained
independently and has attached as Annex 34 hereto, does not
even mention Ugandan soldiers. The only forces undergoing
training in Kitona in early August 1998 were ex-PAZ, who did
so at the behest of the Kabila government.
244. On 4 August 1998, there were no Ugandan
troops present in either Goma or Kitona, or on board planes
belonging to any of the three named Congolese carriers. As
previously discussed, the only Ugandan troops on Congo's
territory at that time were the three UPDF battalions stationed in
Beni and Butembo, which are situated more than 230 kilometers
north of Goma and more than 1,500 kilometers northeast of
Kitona.
"Le dimanche 9 août 1998. deux colonnes de
soldats ougandais ont violél'intégritéterritoriale
de la République démocratique du Congo. La
premièrecolonne étaitcomposéede trois blindés
at de sept camions K.V.. la seconde comprenait
sept auto-blindés. Localisés entre Kamango et
Watsa. ces troupes ougandaises se dirig10ient
vers Bunia. dans la Province orientale. " (DRC
Application, Section I(A), para. 4, underlining
added).
10
"On Sunday 9 August 1998, two columns of Ugandan soldiers
violated the territorial integrity of the Democratie Republic of the Congo.
The fust columnwas made up of 3 armoured vebicles and 7 'KV' trucks,
wbile the second comprised 7 armoured cars. Having crossed the frontier
between Kamango and Watsa, they advanced on Bunia, in Orientale
Province."
139 245. DRC bas presented no evidence to support this
assertion. Even if Ugandan troops were near Bunia, which is
only 40 kilometers from the Ugandan border, they were there by
invitation of the Congolese government to defend Uganda
against attacks by the ADF, other anti-Uganda insurgent groups
andSudan.
''Deplus. toujours le 9 août 1998. à 11 heures (9
heures GMT>. un gros porteur de l'armée
ougandaise a atterrià Nebbi. district ougandais.
très ·proche de Karobo. à plus ou moins 20
kilomètres de Mahagi. en territoire congolais.
Cet avion a de.poséun lot important d'armes et
de munitions. Celles-ci ont étédistribuées aux
garnisons de Fahidi. de Huruti. de Mbo et de
Mee. dans le but de servir de forces d'appui aux
11
troupes ougandaises présentes au Congo. "
DRC Application, Section I(A), para. 5,
underlining added). ·
246. DRC bas cited no evidence to prove that the
Ugandan army landeda large transport aircraft at Nebbi on 9
August 1998, that the UPDF subsequently distributed anns and
munitions to the garrisons of Fahidi, Huruti, Mbo ·andMee; or
that these garrisons were occupied by forces that supported the
UPDF. The Government of Uganda denies that these events
occurred. The airfield at Nebbi, which is within Uganda's own
·territory, is too small to permit the landing of a large transport
aircraft. Even if the Ugandan army did land a smaller aircraft
carrying a consignment of arms and munitions at Nebbi, which
is within its own territory, these supplies were distributed to
UPDF troops defending Ugandan territory against attacks by
anti-Uganda rebets based in the DRC and Sudan.
11
''Further,on the same day (9 August 1998), at 11 a.m. (9 a.m
GMT), a large transport aircraft of the Ugandan army landed at Nebbi in
Uganda, close to Karobo, some 20 kilometers from Mahagi, on Congolese
territory. Theircrafwas carrying a substantial consignment of arms and
munitions. These were distributed to the garrisonsidi, Huruti, Mbo
and Mee so that they could provide support for thean troops in the
Congo."
140 247. The Application refers to various excerpts from
White Papers prepared by the Congolese Ministry of Human
Rights, which allegedly "témoignent d'une véritablepolitique
menée par le Gouvernement ougandais à 1'encontre de la
République démocratique du Congo" ("are evidence of a
deliberate policy operated by the Ugandan government against
the Democratie Republic of the Congo"). (DRC Application,
Section I(B}, Introduction). In its Memorial, the DRC notes
that:
"Ce document [i.e., les Livres blancs] a été
présentéà des fins purement illustratives, comme
la République démocratique du Congo l'a déjà
signalé, et on ne saurait en déduire une
argumentation juridique precise concernant les
violations du droit international commises par
l'Ouganda. 1" (Memorial, para. 4.76).
In fact, the White Papers do not specifically impute any of the
events described to Uganda, and the DRC has offered no
reliable evidence that these events are imputable toUganda.
248. The Government of Uganda wishes to point out
that the events described inthe White Papers and reproduced in
the DRC's Application are not imputable to Uganda for the
following additional reasons:
"Le lundi 3 août 1998 vers 16 heures.
trente-huit officiers et une centaine de soldats des
Forces armées congolaises. préalablement
désarmés.ont étéassassinés à 1'aéroport de
Kavumu. 13" (DRC Application, Section I(B),
para.1, underlining added).
12 ''1bisdocument [i&, the White Papers] bas been presented solely
for purposes of illustration, as the Democratie Republic of the Congo bas
already noted and could not serve as the basis of a specifie legal argument
concerning violations ofhuman rights committed by Uganda."
13
"On Monday 3 August, at around 4 p.m., 38 officers and sorne 100
soldiers of the Congolese Armed Forces, having previously been disarmed,
were murdered at Kavumu airport."
141 249. The DRC has offered no evidence that Uganda
or Ugandan troops were responsible for the alleged activities.
In fact,no UPDF troops were deployed at or near K.awmu
airport on 3 August 1998, or at any other time, and the UPDF
was not involved in any events that may have occurred there.
K.avumuairport is located in South Kivu Province, more than
426 kilometers south of Beni and Butembo, the only towns
where UPDF battalions were stationed in early August 1998.
Notably, Amnesty Intemational's report, Democratie Republic
of Congo: A long-standing crisis spinning out of control,
indicates that "[rn]embers of the RCD reportedly summarily
executed govemment soldiers at Kavumu, near Bukavu in
South-Kivuprovince, at the start of August [1998]," but does
not makeanyreferenceto theUPDF. (UCMAnnex 25,p. 4).
"Le 24 août 1998. plus de huit cent
cinquante-six personnes ont étémassacrés à
K.asika, dans la chefferie de Lwindi et en
territoire de Mwenga. localitéssituéesdans la
provincedu Sud-Kivu.
Les cadavres découvertssur un trajet de
60 kilomètres. depuis Kilungutwe jusqu'à
Kasika. étaientessentiellement des femmes et
des enfants. des êtresincapables de porter des
14
armes et donc sans défense. " (DRC
Application, Section I(B), para. 1, underlining
added).
250. The DRC has offered no evidence that Uganda
or Ugandan troops were responsible for the alleged activities.
In fact, no UPDF troops were deployed in Kasika, Lwindi
chieftaincy, the territory of Mwenga, the area between
Kilungutwe and Kasika, or anywhere else in South Kivu
Province, on 24 August 1998 or at any other time, and the
14 "On 24 August 1998, more than 856 persons were massacred at
Kasika, in Lwindi chieftaincy and in the territory of Mwenga, ali being
localitiessituatedin the Province-Kivu.
The bodies, whicb were found scattered over a distance0
kilometres between Kilungutwe and Kasika, were largely those of women
and children-defencelesspersons incapableofbearing arms."
142UPDF was not involved in any events that may have occurred in
these locations. In its report these events dated 3 September
1998, Amnesty International attributes responsibility for sorne
of the alleged killings to the RCD and the RPA. lt attributes no
responsibility to the UPDF. (UCM Annex 25, p. 5).
"Dans la nuit du 31 décembre 1998 au
1er janvier 1999, six cent trente-trois personnes
ont été massacrées à Makobola. 1" (DRC
Application, Section I(B), para.l, underlining
added).
251. The DRC bas offered no evidence that Uganda
or Ugandan troops were responsible for the alleged activities.
Instead, the DRC bas submitted documentation indicating that
the attackon Makobola was perpetrated by forces other than the
UPDF. According to a Report of the United Nations Special
Rapporteur on Human Rights dated 17 September 1999, RCD
forces have acknowledged as ''unfortunate mistakes" their
"[a]ttacks on the civilian population, as reprisais for acts
committed by Mai-Mai in Makobola (end of 1998 and
beginning of 1999) with about 800 dead." (MDRC Annex 41,
para. 101). However, a Congolese non-govemmental
organization called COJESKI attributes responsibility for the
Makobola massacre to the Rwandan and Burundian armies:
"Le débutde 1année1999 a été très fatal pour la
population de MAKOBOLA en date du 1er
janvier 1999, 25 villages de MAKOBOLA en
Territoire de FIZI dans le SUD-KIVU ont été
sérieusementendeuillés. Le Bilan actuel fait état
de 818 personnes massacrées dans lesquelles
jeunes, vieux et enfants, hommes et femmes,
victimes innocentes de l'intolérance des troupes
Rwando-Burundaises d'occupation du Sud
KivutR.D.C. TI est à noter par ailleurs que
plusieurs maisons ont étéincendiées avec des
personnes à l'intérieur. Certains biens comme
15
"On the~ghtof31 December 1998 to 1 January 1999, 633 persons
were massacrem Makobola."
143 les filets de pêche,les vélos, ... ont étépillés.
Ces massacres des populations s'étaientréalisés,
dans un cynisme si confus au regard de la
politique de la terre brûléemise sur pied par les
troupes Rwandaises en guise de représailles
contre les infiltrations actuellement fréquentes
des Maï-Maï devenant de plus en plus très
opérationnels sur l'axe UVIRA-FIZI au Sud
K.ivu.16"(MDRC Annex 89, p. 7).
252. UPDF troops were neither in, nor anywhere near,
Makobola or any other town in South-Kivu Province on 31
December 1998, 1 January 1999 or at any other time.
Consequently, the UPDF was not involved in any events that
may have occurred in these locations.
''Denombreux cas de viols de femmes et
d'enfants ont étéperpétrésn . otamment le 29 ao17
1998 à Kasika. le 22 septembre à Bukavu. "
(DRC Application, Section I{B), para. 2,
underlining added).
253. The DRC has offered no evidence that Uganda
or Ugandan troops were responsible for the alleged activities.
In fact, no UPDF troops were in Kasika, Bukavu or anywhere
else in South Kivu Province on 29 August 1998, 22 September
1998 or at any other time, and the UPDF was not involved in
any events that may have occurred there.
16
An English translation of the above-referenced excerpt from the
COJESKI report follows: The beginning of the year 1999 wasvery tragic
for the peopleof MAK.OBOLA. On 1st January, 1999, 25 villages of
MAK.OBOLAin FIZI in SOUTH KIVU province were besieged. The death
toll stands at 818 people. Among these we find children, the elderly, youth,
men and women, all of whom were innocent victims of massacres by
Rwanda-Burundi occupation forces in South Kivu, DRC. We should note
that many bouses were set ablaze with people insideSome goods like
fishnets, bicycles etc. were looted. These massacres were carried out
Rwandese groups as reprisais against infiltration of Maï Mai who have
become more and more operationaln UVIRA-FIZI, South-Kivu.
17
''Therehave been numerous cases of rape of women and children,
particularly 29 August 1998 in Kasika, on 22 September in Bukavu, etc."
144 "Pendant les trois premiers mois
d'aggression du Sud-Kivu. diverses tentatives
d'enlèvements et/ou assassinats ont été
effectuéescontre plusieurs faiseurs d'opinion et
animateurs du mouvement associatif du Sud
Kivu.18" (DRC Application, Section I(B), para.
3, underlining added).
254. The DRC has offered no evidence that Uganda
or Ugandan troops were responsible for the alleged activities.
The DRC has also failed to provide any dates or locations for
the alleged events, except to say that they took place in South
Kivu. UPDF troops have never been stationed in South Kivu
Province, and the UPDF was not involved in any events that
may have occurred there.
"A Bukuvu et dans ses environs. ily a eu
meurtres et massacres de la population civile
ainsi gue des cas d'enlèvements, arrestations
arbitraires. détentions illégales. viols. extorsion
et des cas de tortures. " (DRC Application,
Section I(B), para. 4, underlining added).
255. The DRC has offered no evidence that Uganda
or Ugandan troops were responsible for the alleged activities.
The DRC has also failed to provide any dates or locations for
the alleged events, except to say that they took place in and
around Bukavu, which is located in South Kivu Province.
UPDF troops have never been stationed in South Kivu
Province, and the UPDF was not involved in any events that
may have occurred there.
18 "During the fust three months of the invasion of Sud-Kivu,
numbers of opinion-formers and activists of the Associative Movement of
Sud-Kivu were abductedand/or murdered."
19
"ln and around Bukavu there bave been murders and massacres of
the civilian population, as well as abductions, arbitrary arrests, illegal
detentions, rape, extortion and torture."
145 "Le 15se,ptembre1998. le centre de santé
de Mumba a été pillé par des militaires
ougandais.
A Bukavu. à la direction provinciale de
l'Office des douanes et accises, à l'Office
congolais de contrôle ainsi gu'à la direction
provinciale des contributions. les coffres-forts de
toutes ces enterprises publiques génératricesde
recettes ont étépillés.
Les troupes ougandaises ont saboté les
installations portuaires et certaines unités
d'exPloitation (démontage des usines de la
sociétéFiltisaf) de Kalemie; pilléet exportédes
epgins de manutention et certaines unités
flottantes desparticuliers.0" (DRC Application,
Section I(B), para. 5,underlining added).
256. The DRC hasprovided no evidence that Uganda
or Ugandan troops were responsible for the alleged activities.
In fact, no UPDF troops were deployed in Mumba, Bukavu or
Kalemie on 15 September 1998. Mumba and Bukavu are
located in South Kivu Province, and Kalemie is located in
Katanga Province. Ugandan troops have never been stationed
in any of these areas, and the UPDF was not involved in any
events that may have occurred there.
"Violations des droits de l'homme commises par
les troupes d'invasion ougandaises et leurs alliés
'rebelles' dans les grandes citésde la Province
orientale
20
"On 15 September 1998, the Mumba Health Centre was looted by
Ugandan soldiers.
In Bukavu, the Provincial HeadquartersCustoms and Excise, the
Office of the National lnspectorate (Office congolais de contrôle), and the
Provincial Taxation Office, all revenue-generating public undertakings, bad
their safes ransacked.
In Kalemie, Ugandan troops sabotaged port installations and
various other undertakings (including dismantlinghe Filtisaf factories),
looting and carrying off handling and loading equipment and certain
privately owned items offloatingnt"
146 Pour accomplir leur besogne à l'abri de
témoins. les troupes ougandaises ont chassé
toutes les organisations humanitaires
internationals. notamment le HCR [UNHCRJ. le
CICR. l'UNICEF. l'OMS et MSF.
Les troupes ougandaises arrachent ou
déconnectentsystématiquementtous les moyens
de télécommunication pour gue les actes qu'elles
commettent ne soient pas portés à la
connaissance de l'opinion nationale et
internationale et confisquent également les
passe.ports des militants des droits de
l'homme? " (DRC Application, Section I(B),
para. 6, underlining added).
257. The DRC has provided no evidence that Uganda
or Ugandan troops were responsible for the alleged activities or
that they have ever been accused by any of the specified
intergovemmental or non-govemmental organisations of
responsibility for these activities. The DRC has also failed to
provide any dates or locations for the alleged events. ·
258. Once again, the supporting documentation
provided by the DRC undermines its case. The Memorandum
submitted by Ambassador Kapanga to the President of the
Security Council attributes full responsibility for driving
international humanitarian organizations out of Congo to the
Rwandan army:
"In order to perform their foui work without
witnesses, the Rwandan troops drove out ali the
international humanitarian organizations,
including UNHCR, UNICEF, WHO and
Médecins sans frontières, compelling them to
21 "To ensure that there would be no witnesses to their actions,
Ugandan troops forced ali international humanitarian organizations, in
particularthe HCR [UNHCR],ICRC,UNICEF, the WHOand MSF, to leave
the area.
Ugandan troops systematicaliy destroyed or disconnected ali
telecommunications facilities, so ensure that their actions would not
come to the notice of national and international public opinion; at the same
timethey confiscatedthe passports ofhuman rightssts."
147 transit through Kigali for a systematic search by
a military escort, thus preventing any
compilation of information on the massacres and
plunder conducted in the areas occupied by
Rwanda." (MDRC Annex 27, para. 32).
259. Ugandan troops never forced any international
humanitarian organisations to leave Orientale Province or any
other area. Nor did they ever destroy or disconnect
telecommunications facilities, or confiscate the passports of
human rights activists. In fact, there are no telecommunications
systems operating in eastern Congo other than those in Goma
and Bukavu, which have never been destroyed or disconnected.
''Deplus. laRépubliquedémocratiquedu
Congo tient à insister tout particulièrement sur le
chantage exercépar l'Ouganda gui s'est emparé
durant quelques semaines. à partir du 17 août
1998. du barrage hydroélectrique d'Inga.
provoquant des coupures de courant mortelles
pour bon nombre de citoyens congolais et
22
menaçant même de dynamiter le barrage. "
(DRC Application, Section ID(C), underlining
added.)
260. The DRC has provided no evidence that
Ugandan troops were involved in this alleged incident or
present at or in the vicinity of the Inga hydroelectric dam, which
is located in the extreme western region of Congo, more than
1,500 kilometers from Beni and Butembo in eastern Congo,
where Ugandan troops were based pursuant to the DRC's
invitation. Uganda explicitly denies these allegations.
"Ce jour-là [9 octobre 1998]. un Boeing
727 appartenant à la compagnie Congo Airlines a
22
"The Democratie Republic of the Congo would further particularly
emphasize the blackmailing tactics employedanda, which, for severa!
weeks, starting from 17 August 1998,n forcible possession of the Inga
hydroelectric dam,during which time it made repeated power cuts, resulting
in numerous deaths of Congolese nationals, and even threatened to blow up
thedam."
148 étéabattu au décôllagede l'aéroportde Kindu
par les rebelles appuyés par des troupes
ougandaises. provoquant la mort de trente-sept
femmes et enfants et des membres de
l'éguipage.23" (DRC Application,Section ill(E),
underliningadded).
261. The DRC bas offered no evidence to prove that
Ugandan troops played a direct or supportingrole in the alleged
activities, which were also the subjectof a complaint filed by
the DRC with the International Civil Aviation Organization
(!CAO) Council. Following presentations by the delegates of
the DRC and Uganda, the ICAO Council Members concluded
that the DRC's complaint could not be verified. (UCM Annex
41, p. 2). In fact, no UPDF troops were deployed at or near
Kindu airport or anywhere else in South Kivu Province on 9
October 1998 or at any other time, and the UPDF was not
involvedin any eventsthat might haveoccurredthere.
262. The foregoingparagraphs establishthat the DRC
has failed to provide any reliable evidence that the acts and
conduct described in its Application are imputable to the
GovemmentofUganda.
263. In its Memorial, the DRC levels many other
serious accusations againstUganda. The evidentiaryproblems
with theseunfoundedallegationsare addressedin Chapter VTI.
23
"That day [9 October 1998], a Boeing 727 belonging to Congo
Airlines was shot down while taking off from KinduJ:portby rebels
supported by Ugandan troops, causing the deathswomenand children
and of the crewmembers."
149 CHAPTERXV
THE ROLE OF RWANDA
A. The Issues
264. As the Court is aware, the events in Kisangani
figure prominently in the Request for futerim Measures of
Protection submitted on 19 June 2000. fu this context the
Government of the DRC made various unacceptable assertions
that the fighting in Kisangani had been "instigated by the
Republic of Uganda," such assertions being made both in the
text of the Request itself and in the oral hearings.
265. For the record the Government ofUganda rejects
the assertions made in relation to the events in Kisangani.tis
also necessary to point to the extreme artificialitya situation
in which the DRC avoids making any reference to the role of
the Republic of Rwanda. Thus, although at the material time
the DRC hadcommenced proceedings against Rwanda before
this Court, Rwanda was not the object of a Request for Interim
Measures of Protection. And, of course, the DRC hasrecently
requested aDiscontinuance of the proceedings against Rwanda.
266. Against this background, it is necessary to
examine the legal consequences of the role of Rwanda in the
events which took place in Kisangani in June 2000, that is to
say, the legal consequences in relation to these proceedings.
the submission of the Government of Uganda the primary
consequence is the inadmissibility of the issues of State
responsibility relating to the events in Kisangani. There are two
distinct questions involved.fu the fust place, the Court has no
jurisdiction in respect of Rwanda and the principle of the
Monetary Gold case is applicable. Secondly, the merits cannot
be examined according to ordinary judicial standards in the
absence of Rwanda.
267. fu the submission of Uganda the questions of
admissibility involved in this case are inherent in the judicial
process and can, and should, be dealt with proprio motuby the
Court. It is also ·the case that the pertinent issues of
150admissibility are inevitably and closely associated with the
Court'sinvestigation of the facts at the Merits phase. Inall the
circumstances, the Government of Uganda has decided that it is
neither convenient nor appropriate to advance its concems
about admissibilityin the form ofpreliminary objections.
B. The Relevance Of Security Council Resolution 1304
(2000)
268. Resolution 1304 (2000), adopted by the Security
Council on 16 June 2000, contains various findings related to
the ":fighting between Ugandan and Rwandan forces in
Kisangani" (according to the phrasing used in the preamble).
This Resolution is referred to in therder of the Court of 1July
2000, paragraph 35.
269. As the Agent of the Republic of Uganda, H.E.
the Honourable Bart M. Katureebe, made clear during the oral
hearings on 28 June 2000 (CR 2000/23), the Government of
Uganda fully accepts resolution 1304 (2000). See also the
Order of the Court of 1July 2000, para. 36.
270. Thus, Uganda has accepted Resolution 1304
(2000) for the purposes of Chapter Vll of the Charter, but such
acceptance could not prejudice the Court'srole in exercising its
judicial function in respect of the admissibility of the issues
arising from the :fightingin Kisangani. Moreover, the Court has
in itsOrderof 1July 2000 af:firmedthat Resolution 1304(2000)
does not ''preclude theCourt from acting in accordance with its
Statute andwith the Rules of Court...." Seethe Order,para. 36.
271. In the result Resolution 1304 (2000) does not
contain any impediment to the Respondent State invoking the
normal procedural principles of international law so far as these
bear upon the issues of State responsibility raised by the DRC.
Nothing in Resolution 1304 (2000) justifies the setting aside of
the role of Rwanda and its legal consequences.
151C. The Effect Of The Legal Interest Of Rwanda On The
Admissibility Of Issues Conceming The Events In
Kisangani
272. Itis accepted on ali sides that the fighting in
Kisangani involved the armed forces of the Republic of
Rwanda. The DRC now seeks to raise issues of State
responsibility against Uganda in proceedings to which Rwanda
is not a party. In the submission of the Government of Uganda
the principle in the Monetary Gold case is applicable. As the
Court observed in its Judgment in thatcase:
"In order, therefore, to determine whether Italy is
entitled to receive the gold, it is necessary to
determine whether Albania bas committed any
international wrong against Italy, and whether
she is under an obligation to pay compensation
to her; and if so, to determine also the amount of
compensation. In order to decide such questions,
it is necessary to determine whether the Albanian
law of January 13th, 1945, was contrary to
international law. In the determination of these
questions - questions which relate to the lawfu.l
or unlawful character of certain actions of
Albania vis-à-vis Italy - only two States, Italy
and Albania, are directly interested. To go into
the merits of such questions would be to decide a
dispute between ltaly and Albania.
The Court cannot decide such a dispute without
the consent of Albania. But it is not contended
by any Party that Albania has given her consent
in this case either expressly or by implication. To
adjudicate upon the international responsibility
of Albania without her consent would run
counter to a well-established principle of
international law embodied in the Court's
Statute, namely, that the Court can only exercise
jurisdiction over a State with its consent.
152 It has been suggested that Albania might have
intervened. The provisions of Article 62 of the
Statute give to a third State, which consider that
it 'has an interest of a legal nature which may be
affected by the decision in the case', the right to
request permission to intervene. It has been
contended that the inclusion of the provisions for
intervention indicate that the Statute
contemplates that proceedings may continue,
notwithstanding that a third State may have an
interest of a legal nature which might enable it to
intervene. It is argued that the fact that a third
State, in this case Albania, may not choose to
intervene should not make it impossible for the
Court to give judgment on rights as between the
Parties.
Albania has not submitted a request to the Court
to be permitted to intervene. Inthe present case,
Albania's legal interests would not only be
affected by a decision, but would form the very
subject-matter of the decision. Insuch a case, the
Statute cannot be regarded, by implication, as
authorizing proceedings to be continued in the
absence of Albania." (I.C.J. Reports, 1954, p. 19
at p. 32).
273. The circumstances in the present case produce
the same type of dilemma. The culpability or otherwise of
Uganda, as a consequence of the conduct of its armed forces,
can only be assessed on the basis of appropriate legal standards
if the conduct of the armed forces ofRwanda is assessed at the
same time. In the absence of evidence as to the role of Rwanda,
it is impossible for the Court to know whether the justification
of self-defence is available to Uganda or, in respect of the
quantum of damages, how the role of Rwandais to be taken into
account.
274. In this connection it is submitted that the
existence of the dilemma is not affected by the question of the
153legality or otherwise of the presence of Ugandan forces on the
territory of the DRC.
275. In the further submission of the Govemment of
Uganda the other authorities relating to the Monetary Gold
principle are ali compatible with the analysis submitted on
behalf of Uganda. There is no standard applicable here, as in
the Nauru case, that the determination of Uganda's
responsibility "might" affect Rwanda. See I.C.J. Reports, 1992,
p. 240. Any determination of Uganda's responsibility must
directly affect Rwanda.
276. Whilst it is obvious that each casehasits special
character, there is a certain analogy with the issues presented in
the East Timor case. Inthe words of the Court:
"34. The Court emphasizes that it is not
necessarily prevented from adjudicating when
the judgment it is asked to give might affect the
legal interests of a State which is not a party to
the case. Thus, in the case concerning Certain
Phosphate Lands in Nauru (Nauru v. Australia},
it statedinter aliaas follows:
Inthe present case, the interests of New Zealand
and the United K.ingdom do not constitute the
very subject-matter of the judgment to be
rendered on the merits ofNauru's Application ....
In the present case, the determination of the
responsibility of New Zealand or the United
K.ingdom is not a prerequisite for the
determination of the responsibility of Australia,
the only object of Nauru's claim .... In the
present case, a finding by the Court regarding the
existence or the content of the responsibility
attributed to Australia by Nauru might well have
implications for the legal situation of the two
other States concerned, but no finding in respect
of that legal situation will be needed as a basis
for the Court's decision on Nauru's claims
against Australia. Accordingly, the Court cannot
154 decline to exercise its jurisdiction." (I.C.J.
Reports 1992,pp. 261-262,para. 55.)
"However, in this case, the effects of the
judgment requestedby Portugalwould amount to
a determination that Indonesia's entry into and
continued presence in East Timor are unlawful
and that, as a consequence, it does not have the
treaty-making power in matters relating to the
continental shelf resources of East Timor.
Indonesia's rights and obligations would thus
constitute the very subject-matter of such a
judgment made in the absence of that State's
consent. Such a judgment would run directly
counter to the 'well-established principle of
international law embodied in the Court's
Statute, namely, that the Court can only exercise
jurisdiction over a State with its consent."'
(Monetary Gold Removed from Rome in 1943,
Judgment,I.C.J.Reports 1954,p. 32).
"35. The Court concludesthat it cannot,in this
case, exercise the jurisdiction it has by virtue
the declarations made by the Parties under
Article 36, paragraph 2, of its Statutebecause, in
order to decide the claims of Portugal, it would
have to rule,as a prerequisite, on the lawfulness
of Indonesia's conduct in the absence of that
State's consent. This conclusion applies to ali
the claims of Portugal, for all of them raise a
common question: whether the power to make
treaties conceming the continental shelf
resources of East Timor belongs to Portugal or
Indonesia, and. therefore. whether Indonesia's
entry into and continued presence in the
Territory are unlawful." (I.C.J. Reports, 1995,
p. 90 at pp. 104-5,underliningadded).
277. In the circumstances presented by the events at
Kisangani, the claims invoked by the DRC aliraise a common
question,namely,the degree ofresponsibility of each of the two
155States involved. If the conflict was provoked by Rwanda, this
would materially and directly affect the responsibility of
Uganda vis-à-visthe DRC.
278. Without the resolution of this type of issue as
between Uganda and Rwanda, the responsibility of Uganda on
the basis of the DRC's Memorial cannot be assessed by
appropriate means. Thus Rwanda'slegal interests would form
"the very subject matter''of the decision which the DRC is
seeking, and wouldinfringethe principlestated in the Monetary
Goldcase.
D. The NecessityTo Safeguard The Judicial Fonction
279. In the circumstancesof thepresent case,it can be
seen that the absence of consent to jurisdiction on the part of
Rwandais only one aspectof the problemof admissibility. The
additional question is that of the incompatibiHty with the
judicial function that would be involved by the Court
entertaining the issueof responsibilityrelating to the events in
Kisangani. The need to protect the judicial function was
referredtoby the Court in the Northem Cameroonscase, I.C.J.
Reports, 1963,pp.33-34,37,38.
280. This consideration, the safeguarding of the
judicial function,hasbeen identified by Hugh Thirlway as the
true ratioof the Monetary Gold case. The point is elaborated in
his percipientcommentaryin the British Year Book as follows:
''We may therefore here revert to the question
raised above, in connection with the Monetary
Goldcase, of the distinction between absenceof
jurisdiction and inability of the Court to exercise
jurisdiction which it possesses. In the East
Timor case, as in the Monetary Gold case, the
State or States which desired a decision of the
Court were perfectly weil aware that, under
Article 59 of the Statute, the judgment sought
would not be binding on the absent State: in
both cases, the circumstances were such that it
was not the absent State which was the direct
'target'f the recourse to a judicial finding. It
156was not sought to obtain a decision against that
State which would be relied on or enforced
against it; it could therefore be argued that the
rights of Albania or Indonesia would not be
infringed by a finding of the k:indthat the Court
was asked to make, or certainly not in the same
way, or to the same extent, as would be the case
were it not protected by Article 59. It is
therefore suggested'thatthe ratioof the principle
laid down is not. or not directly. the protection
the absent State. but rather the 'safeguarding of
the judicial function'. as the Court put it in the
Northern Cameroons case. If proceedings bad
been brought directly against Albania or
Indonesia, and the Court bad decided that there
was no jurisdictional basis, it could proceed no
further, in direct applicationof the rule that there
is no jurisdiction without consent. However, in
the Monetary Gold case, there was jurisdiction
between the parties under the Washington
Agreement, and in the East Timor case there was
jurisdiction to decide whether Australia bad
acted unlawfully; but the answer to the question
put could not but involve the absent State. In the
East Timor case, whether Australia bad or bad
not acted unlawfully depended on the answer to
a question the Court was not empowered to
decide, namely whether Indonesia was in
unlawful occupation of East Timor. Thus the
only answer the Court could give would be that
if lndonesia is in unlawful occupation, then
Australia bas acted wrongfully; if not, then not.
This however would not be a proper decision for
a judicial body. The same analysis is valid for
the Monetary Gold case; one may conclude that
the Court was right to express its decision in
those cases in the fonn that it possessed
jurisdiction, but could not lawfully exercise it."
(British Year Book of InternationalLaw, Vol. 69
(1998), pp. 51-52, underliningadded).
157 281. This analysis applies to the present case, in spite
of the superficial contextual difference. The same basic
analysis is provided by Dr. Rosenne in respect of the concept of
"essential parties." Dr. Rosenne observes:
''Theexistence of this concept, as a principle of
general international law and as a feature of the
law of international judicial procedure, is not,
then, open to question. Nevertheless, it is only
applicable when the decision as between the
parties cannot be reached without the Court
examining the legality of the conduct of another
State not a party to the proceedings or the legal
position of that State. If a decision as between
the parties to the case can be reached without
such an examination of the position of the third
State, the Court will exercise its jurisdiction as
between the parties, leaving Articles 59 and 60
of the Statute to protect the legal position of any
third State. That is the limit of what is sometimes
called the principle of the essential parties."
(The Law and Practice of the International Court,
1920-1996, The Hague, 1997, II, pp. 552-60 at
p. 560).
282. Dr. Rosenne also invokes the principle of
procedural faimess: audiaturet alterapars(ibid.,p. 557).
E. ThePrincipleOf ProceduralFaimess
283. In the circumstances, the principle of procedural
fairness would also be involved in relation to the Respondent
State. To raise issues of responsibility against Uganda in the
context of the events in Kisangani in June 2000 is to put
Uganda in an impossible situation. In the absence of the other
participating State significant issues of circumstances
precluding wrongfulness, mitigation of responsibility, and
issues of causal contribution, cannot be fairly or effectively
addressed.
284. Itis to be presumed that the Court would uphold
the requisite standards of judicial faimess. The Statute and
158Rules of Court clearly assume that such standards are
applicable. See, e.g., the Rules of Court, Articles 63 (calling of
witnesses) and 76 (revocation or modification of decisions
conceming provisionalmeasures).
285. What is involved is a certain permutation of the
principle Audiatur et altera pars. In the present case it is
impossible for the Respondent Stateto receive fair treatment in
the absence of the "other party." There can, of course, be no
doubt that the parent principle applies in the practice of the
Court. See Rosenne, op. cit., Vol. Il, pp. 557, 1013-14.
286. In addition, it may be observed that the principle
of procedural fairness is closely related to the necessity to
safeguardthejudicial function. See above, paras. 17-20.
F. Conclusions
287. In the light of these varions considerations, the
Government of Uganda respectfully submits that the Court
lacks competence to deal with the events in Kisangani in June
2000 in the absence of consent on the 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.
159 PART V
CIRCUMSTANCES PRECLUDING
WRONGFULNESS AND RELATED ISSUES
160 CHAPTERXVI
THE LEGAL ASPECTS OF THE PRESENCE OF
THE
UGANDAPEOPLE'S DEFENCE FORCES
ON THE TERRITORY OF THE DRC
A. The Express Invitation And Consent Of The
Government Of The DRC
288. The problem of border security with Zaïre, now
the DRC, bas been long-term, and the background is examined
in more detail below in Chapter XVII.Uganda has for long
been the targetf armed groups operating from the DRC, who
were able to take advantage of the weakness of the
governmental structures in the provincesZaïre. Anti-Uganda
rebels have beenparticularly activesince 1996.
289. After President LaurentK.abila bad established
power in the DRC (in May 1997), the security problems of
Uganda were given more sympathetic treatment by the DRC
authorities.
290. The political developments had two connected
consequences. In the first place, in May 1997 there was an
understanding with the government in Kinshasa that Ugandan
forces could be present. This understanding was related to two
factors: military inadequaciesf the Congolese government;
and, second!, the continuingneed toneutralise hostile groups.
291. The role of Ugandan forces was given formai
recognition in the conclusion ofth~ ''Protocol between the
Democratie Republic of the Congo and Republic ofUganda on
Security along the Common Border" concluded on 27 April
1998. By virtue of this agreement three battalions of Ugandan
troops were stationed in the border regionf the Rwenzori
Mountains. See further Chapter 2 above, para. 31. The
practical purpose was to eradicate the anti-Uganda rebel groups
on either sidef the DRC-Ugandaborder.
161 292. It is to be recalled, at this stage, that in its
Memorial the DRC accepts that, ''prior to 28 July 1998,"
U gandanforceswerepresentin theDRC with the consentof the
lawfulgovernment. Memorial,paras. 2.10, 5.23 and 5.37.
293. No convincing evidence is given of the
withdrawal of the consent to the presence ofU gandan anned
forces on the partf the DRC. Two documents are referred to.
The first isa press communique published on 29 July 1998,
whichreads as follows:
''The Supreme Commander of the Congolese
National Anned Forces, the Head of State of the
Republic of the Congo and the Minister of
National Defence, advises the Congo1esepeople
that he has just terminated,with effectom this
Monday 27 July 1998, the Rwandan military
presence whichbasassisted us during the period
of the country's liberation. Through these
military forces, he would like toankali of the
Rwandan people for the solidarity they have
demonstrated to date. He would also like to
congratulatethe democratieCongolesepeople on
their generosityof spirit for having tolerated,
provided shelter for and trained these friendly
forces during their stay in our country. This
marks the end of the presence of ali foreign
military forces in theongo." [Translation by
theRegistry](Memorial,para. 2.11;Eng. trans.)
294. The relevance of this document is obvious but it
is aimed expressly at the ''Rwandanmilitary presence." The
absence of referencetoU gandan forcesis deliberate, and this is
confinned by the statement by the DRC Minister of Justice on
30 July 1998. The Minister's statement is reported as follows
(inthe Memorial,para. 2.13):
"On 30 July 1998 the Minister of Justice spoke
of a 'campaign of disinformation since the
departureof foreignmilitaryco-operation,'while
emphasizing that 'Banyamulenge Congolese,
162 Burundians and other foreigners [were] free to
go about their daily business and that respect for
their rights [would] be fully guaranteed'
[translationby theRegistry]."
295. Thus none of the public statements ofthe period
were addressed to the Ugandan armed forces and no other form
of communication is referred to in the Memorial of the DRC.
296. By August a new set of circumstances emerged.
President K.abila had changed his political alliances and
Ugandan rebel groups were now being reorganised and rearmed
by the Government of the DRC acting in co-ordination with the
Government of Sudan.
297. It was at this stage that the DRC aborted her
policy of border security and co-operation with the Government
of Uganda. As Mr. Mbabazi, the Hon. Minister of State for
Foreign Affairs ofUganda, explained in the General Assembly
on 23 March 1999:
"As the situation of rebellion in the Democratie
Republic of the Congo worsened, President
K.abila- 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 rebets on the
territory of the Democratie Republic of the
Congo. lndeed, after that more Ugandan rebet
groups were mobilized by the Sudan and moved
to the Democratie Republic of the Congo. The
support to Ugandan rebets by President Kabila's
Govemment has itsetf since become evident.
The Uganda Peoptes Defence Forces and the
Congotese rebets have captured many Ugandans
belonging to different rebet groups operating
inside the Congo. The Lord's Resistance Army,
the Uganda National Rescue Front, the West
Nile Bank Front, the Allied Democratie Forces,
which 1 have just mentioned, and the former
Uganda Army, under the command of ldi Amin's
163 son, Taban Amin, are now part and parcel of the
pro-K.abila anned alliance led by Zimbabwe.
This is in addition to the génocidaires of
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, K.ichwamba Technical
College in western Uganda in June 1998. The
students were locked inside their dormitories,
which were then dowsed with petrol and set on
fire. Those who tried to escape were gunned
down. More than 50 students were burnt to
death, and more than 100 of the survivors were
abducted.
It would have been a grave omission of it~
national security duty if the Uganda govemment
had not taken appropriate measures to address
this threat against our national stability." (UCM
Annex 42, pp. 14-15).
298. The legal ramifications of this new set of
circumstances will be examined below in Chapter xvn.
B. The Multilateral Recognition By The States Of The
Region That Uganda Bas Security Concems Relating
To The Endemie Civil Strüe In The DRC
299. In face of the endemie civil strife on the territory
of the DRC, the States of the region reacted by an expeditious
recognition of the security concems of the neighbouring States,
including the Republic of Ugan.da. This regional response is
reflected in a succession of Summit or Ministerial meetings, and
the diplomatie activityas to culminate inthe conclusion of the
Lusaka Ceasefire Agreement on 10 July 1999. This major
development will be analysed in due course. For the present, it
is necessary to examine its precursors in the form of a series of
joint communiques giving unequivocal recognition to the
security concems ofU ganda.
300. In face of the substantial threat presented by the
hostile arrangements the DRC had made with Sudan, the
164Government of Uganda took urgent measures in order to pre
empt the planned movement of Sudanese forces into the
northem areas of the DRC. The reaction of the other States of
the region was neutra!in toneand showed a considerabledegree
of sympatheticunderstandingof the problemsfacingneighbours
oftheDRC.
301. On 7 and 8 September 1998the Second Victoria
Falls Summit took place, attended by the Heads of State of
Angola, Congo, Namibia, Rwanda, Uganda, Zambia and
Zimbabwe, together with the Secretary-General of the OAU.
See the Communique dated 8 September 1998 (UCM Annex
26). The Communiqueincludedthe followingparagraphs:
"We agreed on the need to address the securitv
concerns of the Democratie Re.publicof Congo
and those of the neighbouring countries.Inthis
regard, we declared our preparednessto assist in
whatever ways possible, to achieve that
objective.
We hereby mandate our Ministers of Defence
and other officiais working in close cooperation
with theOAU and the United Nations to meet at
the OAU Headquarters in Addis Ababa,
Ethiopia, on Thursday 10 September 1998 to
establish the modalities for effecting an
immediate cease-fire and a mechanism for
monitoring compliance with the cease-fire
provisions, especially, those relating to the
withdrawal of foreign forces from the
Democratie Republic of Congo." (underlining
added)
302. Thus, as early as September 1998, regional
dispositions were made which prefigured the Lusaka Ceasefire
Agreement of 10July 1999.
303. The Second Victoria Falls Summitwas followed
by the East African Co-operation Consultative Summit on the
security situation in the DRC, heldin Nairobi on 18 October
1998. The participants were the Heads of State of Kenya,
165Uganda, and Tanzania. The key paragraphs of the
Communique adopted by the Heads of State were as follows:
1
"4. The summit re-affirmed the unity and
territorial integrity of D.R.C. in accordance with
the principles ofO.A.U. and U.N. charter.
5. The Summit further re-affirmed the need to
address the genuine securitv concerns of the
countries neighbouring D.R.C.
6. The Summit examined ali options for
speeding up a resolution to the D.R.C. crisis and
called for:
i. Immediate cessation ofhostilities.
ii. Immediate negotiation of a cease-fire
agreement and a troop standstill. ·
iü. Security for marginalized groups.
iv. Take measures to address security
concerns ofneighbouring countries.
v. Orderly withdrawal of ali foreign troops.
vi. Initiate anli inclusivepolitical dialogue.
vii. Emplacement of a neutral international
peace keeping force under the
auspices of OA.U. and U.N." (UCM
Annex 28, underlining added).
304. The next development was the Regional Meeting
of Ministers of Foreign Affairs and Defence on the Situation in
the Democratie Republic of Congo, on 26 and 27 October 1998
(Lusaka 1). See the Media Statement issued on 27 October,
1998 (UCM Annex 30). In this Statement the Ministers,
representing fourteen States, made the following
determinations:
166 ''Themeeting focused on issues relating to the
cessation of hostilities in the DRC, the
establishment of a Cease-fire Agreement, the
mechanism for implementing the Cease-fire
Agreement, the withdrawal of foreign forces,
addressing the securitv concemsof the DRC and
the neighbouring countries as weil as other
foliow-up mechanisms for facilitating the peace
process in the DRC.
At the end of a comprehensive review of ali
these issues, the meeting:
1. Adopted in principle a draft Cease-fire
Agreement and also a Mechanism for
Implementing and Monitoring a Cease-fire
Agreement, pending further consultations with
ali concemed. In this regard, there was an
acknowledgement by Angola, Namibia,
Zimbabwe and Uganda of the presence of their
troops in the DRC. Rwanda did not
acknowledge the presence of its troops in the
DRC.
3. With regard to the security concems of the
DRC and the neighbouring countries. the
following countries- Angola. Burundi, Rwanda.
Uganda explained in detail. their securitv
concerns. The meeting resolved to address these
concerns through a Mechanism involving
military experts to be established in theture."
(underlining added)
305. From 14 to 16 January 1999 there took place a
further Regional Meeting of Ministers of Foreign Affairs and
Defence on the situation in the Democratie Republicof Congo
(Lusaka ll). The Communique issued on 16 January 1999
records that:
167 "5. The meeting reviewed the current status of
the peace process in the Democratie Republic of
Congo, since the Lusaka and Gaborone
meetings.
6. After extensive deliberations, the meeting
agreed on the mechanisms for moving the peace
process forward. To this end, the meeting
establishedthe followingWorking Groups:
A. Committee on Securitv Concerns
in the DRC and neighbouring
countriescomprising:
Zambia
Kenya
Botswana
Mauritius
UN
OAU
SADC
B. Committeeon the Implementation
of the Cease-fire Agreement
comprising:
Zambia-Chairman
UN
OAU
SADC
7. The Committees are to begin work
immediately and submit reports to the next
regional Ministerial meeting which should be
convened as soon as possible." (UCM Annex 35,
underliningadded).
306. The Regional Meetings of Ministers in October
1998 and January 1999 (Lusaka 1 and ll)involved fourteen
States on each occasion and represent a continuing process of
168multilateral recognition of the security concems of the Republic
ofUganda.
307. A further meeting took place at Windhoek, in the
form of a Summit of Regional Leaders, on 18 January 1999.
The Summit reviewed "the current status of the ongoing peace
process in the Democratie Republic of the Congo." See the
press release dated 18 January 1999 (UCM Annex 36). The
Summit was attended by the Heads of State of Zimbabwe,
Uganda, Rwanda and Namibia, together with the Minister of
National Defence of Angola.
308. These meetings formed part of a coherent and
persistent regional peace process in which the Republic of
Uganda was an active and regular participant. The collective
effort is reflected in a series of instruments which provide
unequivocal evidence of multilateral recognition by the States
of the region that Uganda had security concerns relating to the
endemie civil strife in the DRC.
C. The Recognition Of The Security Concerns Of
Uganda By The Government Of The DRC In April
1999
309. On 17 to 19 April 1999 H.E. Colonel Muamar
Gaddafi of the Libyan Arab Jamahiriya convened a Summit
Meeting at Sirte attended by the Heads of State of Uganda,
Chad, Eritrea, and the DRC. The result took the form of an
Agreement dated 18April 1999(MDRC Annex 65).
31O. The Agreement involved the following
decisions:
"• réaffirmationde la sécuritéet de
l'intégrité des frontières
politiques de tous les États;
• cessation immédiatedes hostilités
afin d' ouvrir la voie au dialogue
et à un règlementpacifique;
169• déploiement de forces de paix
africaines neutres dans les zones
où se trouvent des contingents
ougandais, rwandais et burundais
à l' intérieur de la République
démocratiquedu Congo;
• retrait de tous les soldats
ougandais et rwandais
parallèlement à 1'arrivée des
forces de paix africaines;
• les signataires du présentAccord
condamnent tous les actes de
violence et les massacres commis
et réaffirment la nécessité de
rechercher les tueurs, de les punir
et de les désarmer;
• encouragement à la République
démocratique du Congo pour
qu'elle engage un dialogue
national entre toutes les Parties;
• retrait de toutes les forces
étrangères présentes en
République démocratique du
Congo dès la conclusion d' un
accord de paix;
• toutes les Parties s'engagent à
s'abstenir de toute action visant à
renverser le régimeen République
démocratiquedu Congo;
• respect du principe de non
ingérence dans les affaires
intérieuresd'un pays;
• accent missur le rôle moteur que
continue de jouer le grand leader
frère en qualité de coordinateur
170 pour la paix dans la régiondes
Grands Lacs, pour créer les
conditions et le mécanismeainsi
que pour assurerla liaisonavec le
président Shiloba et pour
accélérer le processus de paix."
(MDRC Annex 65, underlining
24
added).
311. The major elements of this Agreement were a
reaffirmation of the positions already agreed upon within the
framework of the regional peace process of Lusaka. The
Agreement anticipates the Lusaka Ceasefire Agreement of 10
July 1999 in various ways, and, in particular, the linking of
withdrawal of forces with the installation of an alternative
security regime.
24
An Englishtranslationoftheabove-referencedexcerptfromthe
SirteAgreement foUows:
"• Restorationof thesecurityandintegrationofpolitical
bordersof aUStates;
Immediateendingofhostilitieso leadto dialogueand a
peacefulsolution;
De.ploymentofNeutral AfricanPeaceforcesinzones
wherethere arecontingentsofUgandans.RwandansandBurundiansin the
DRC:
Withdrawalof aUUgandanandRwandansoldiersat the
timeofthe arrivaioftheAfricanPeaceForces;
The signatorieso thisAgreement condemnaUactsof
violenceandmassacresandreaffirmtheneedtotrackdownthekiUers,
disarmthemandpunishthem;
EncouragetheGovernmentof theDRCtohavenational
dialoguewithaUtheparties'
Withdrawalof aUforeignforcesintheDRCimmediately
afterthe conclusionthePeaceAgreement'
AUpartiesto refrainfromanyactionaimedat
overthrowingtheGovernmentoftheDRC;
Respectof theprincipleofnon-interferencein the internai
affairsf a country;
Putemphasisontheleadingrole thatthehostPresidentis
playingas co-ordinatorofthepeaceprocessin theGreatLakesregionto
createconditionsandmechanismto ensureliaisonwithPresidentChilubain
orderto speedupthepeaceprocess."
171 312. From 28 May to 1 June 1999 inter-govemmental
talks took place in Kampala between the DRC and Uganda on
the implementation of the Sirte Agreement. In view of what
was to follow, it is necessary to set out the termsthe resulting
Joint Communique in full:
"1. At the invitation of the Government of the
Republic of Uganda, a delegation from the
Democratie Republic of Congo (DRC), led by
Hon. Mwenze Kongolo, Minister of Justice, paid
a working visit to Uganda from 28th May to 1st
June 1999. The President of the Republic of
Uganda His Excellency Yoweri Kaguta
Museveni granted audience to the DRC
Government delegation. The DRC Government
delegation held discussions with their Ugandan
counterparts on the practical modalities for the
implementation of the Sirte Peace Agreement
signed in Libya on 18 April1999. The list of the
two delegations appears in Annex.
2. As a result of the discussions, the following
positions were adopted:
(a) Itwas noted that the Sirte Peace Agreement
is a declaration of commitment to the ongoing
Lusaka regional peace process. In this respect,
the two delegations reaffinned their commitment
to the strengthening of the Sirte spirit by
implementing the broad principles stipulated in
the Agreement.
To this effect, the two delegations committed
themselves to setting up a Committee of Experts
that will work out practical modalities for the
implementation of the afore-mentioned
Agreement. The two delegations undertook to
promote, in the shortest time possible, the Sirte
spirit to ali the parties involved in the DRC.
172(b) The two Governments would convince their
representative allies to recognise the principles in
the Sirte Agreement in order for ali the parties
involved in the DRC to contribute to a
comprehensive and durable Peace Agreement.
(c) The two delegations underscored the fact that
the issue of the killers and mass murderers
remains thorny in the implementation of the Sirte
Agreement.
(d) The two delegations concurred that
sustainable peace, security and stability can only
be achieved through real democracy in ali the
countries of the region. This implies putting in
place concrete steps towards the realisation of
good governance.
The meeting, therefore, welcomed the efforts
being made by the DRC Government to meet
armed and unarmed opposition and its
commitment to opening national dialogue. In a
like manner, the two delegations encouraged
Uganda to do the same.
Uganda will continue to encourage the armed
and unarmed opposition to take part in the
initiatives takenby the DRC Government in its
efforts to democratise the country.
(e) The two delegations further agreed that the
anticipated peace keeping force should, in the
meantime, study the situation on the ground for
the eventual deployment.
(f) The two delegations will meet in Kinshasa
after the discussionsby the Experts. The dates
of the meeting will be set through the normal
diplomatie channels.
3. The meeting took place in a frank and
brotherly atmosphere.
173 4. At the end of the visit, the Congolese
delegation thanked the Ugandan government for
its warm welcome and hospitality, and for its
commitment to the search for a peaceful
settlement of the conflict in the DRC."
(UCM Annex44).
313. The Joint Communiqueis dated 1June 1999 and
records that the meeting took place in"a frank and brotherly
atmosphere." And yet the Application of the DRC is dated 23
June 1999 and the Court was informed ofthe appointment of an
Agent by a letterdated 8 June 1999.
314. The inconsistentconduct of the DRC calls for no
comment. What is significant is theformai commitment of the
DRC, first at Sirte and then at Kampala, to the multilateral
peace process and the clear recognition of the legitimate
concerns of Uganda in face of the chronic civil strife in the
DRC.
D. The Multilateral Recognition Of Uganda's Securitv
Concerns Are Codified In The Lusaka Ceasefire
Agreement OflO Joly 1999.
315. The culmination of the Lusaka peace process, a
process reflected in the series regional meetings reviewed in
the previous sectionof the present chapter, was the conclusion
of the Lusaka Cease:fireAgreement on 10 July 1999. (UCM
Annex 45). The Agreement is in clear terms but, in case of
doubt, it would be appropriate to interpret its provisions in the
light of the determinationsof the regional meetings of States in
the period September1998to April1999.
316. The contents of this important instrument have
been carefully analysed in ChapterVI above. The Agreement
gives formai expression to the pre-existing Lusaka regional
peace process and constitutes a systemf regional public order.
This is recognisedy the firstpreambularparagraph:
"Considering Article 52 of the UN Charter on
regional arrangements for dealing with matters
relating to the maintenanceof internationalpeace
174 and security, as are appropriate for regional
action."
317. The preamble indicates the continuity between
the pre-existing regional peace process and the Agreement
concluded on 10 July 1999. In this context Article ll is
significant. Under the rubric "security concems" it provides as
follows:
"Upon entry into force of this Agreement the
Parties commit themselves to immediately
address the security concemsof the DRC and ber
neighbouring countries."
318. This provision, given fust priority after the
ceasefire provisions in Articlereaffirms the recognition of the
lawful security concems of Uganda, a process of recognition
which goes back to the Communique produced by the Second
Victoria Falls Summit on 8 September 1998. The preamble of
the Lusaka Agreement emphasises the links with that Summit,
as in the following paragraphs:
"CONCERNED about the conflict in the
Democratie Republic of Congo and its negative
impact on the country and other countries in the
Great Lakes Region;
REITERATING the cali made at the Second
Victoria Falls Summit held from 7 to 8
September, 1998, as contained in the Joint
Communique of the Summit, for the immediate
cessation ofhostilities;
COGNISANT of the fact that addressing the
security concems of the DRC and neighbouring
countries is central and would contribute to the
peace process;
RECALLING the mandate, contained in the
Victoria Falls ll Joint Communique given to the
Ministers of Defence and other officiais working
in close cooperation with the OAU and the UN
175 to establish the modalities for effecting an
immediate cease-fire and put in place a
mechanism for monitoring compliance with the
cease-fire provisions; ....(underlining added)
319. In accordance with the pre-existing recognition
of the security concerns of the neighbours of the DRC, the new
Agreement ties together this .multilateral recognition and a
multilateral licence for foreign forces to remained deployed
subject to a setf conditions. The "security concerns" Article is
the second provision in the Agreement, and in the preamble it is
stated that addressing the security concernsis central."
320. In ali the relevant formulations the security
concerns of the DRC are directly linked to those of the
neigb.bouringcountries. As explained in Chapter VI, the parties
to the Lusaka Agreement expressly agreed that foreign forces
would rem.ainin their positions in Congo until, inter alia: the
conclusion of the national dialogue and the establishment of
new Congolese institutions; and, especially, the disarmament of
armed groups. Until the occurrence of these "Major Cease-fire
Events," ali foreign forces were directed to "remain" in their
"declared and recorded locations," as the text provides:
"Ail forces shall remain in the declared and
recorded locations until:
a. In the case of foreign forces, withdrawal bas
started in accordance with the JMC/OAU and
UN withdrawal schedule...." (Annex A to the
Lusaka Agreement, Ch. 11, para 11.4).
321. While in their declared and recorded locations,
and pending their final withdrawal, the foreign forces (as weil
as the other parties to the Agreement) were charged with the
responsibility of cooperating with the Joint Military
Commission in disarming the armed groups in their respective
zones of operation:
"The Parties assume full · responsibilityof
ensuring that armed groups operating alongside
their troops orn the territory under their control
176 comply with the processes leading to the
dismantling of those groups in particular."
(Lusaka Agreement, para. 22).
322. The Lusaka Ceasefire Agreement was a
comprehensive system of public order, forming a transition
regime intended to restore international peace and security in
the region. The Agreement involved a regime of graduated,
conditional and reciprocal obligations of redeployment and
withdrawal. It also recognised the security concerns ofUganda.
In this context the Sixth Report of the Secretary-General on the
United Nations Organization Mission in the DRC, 12 February
2001, is relevant:
''The Lusaka Cease-fire Agreement
acknowledged the concems of Rwanda, Uganda
and Burundi over the presence of the armed
groups which threaten the security of their
borders, and recognized that the withdrawal of
Rwandan and Ugandan troops would be linked
directly to progress made in the disarmament and
demobilization of the militias. The Agreement
called for a mechanism for the disarming of
militias and armed groups, including the
genocidalforces." (UCM Annex 84, para. 88).
E. The Multilateral Recognition Of Ugandan Security
Concems: The Pertinent Resolutions Of The
SecurityCouncil
323. In a series of resolutions, beginning with
Resolution 1258 (1999), adopted on 6 August 1999 (UCM
Annex 47}, the Security Council welcomed the Lusaka
Ceasefire Agreement, and reaffirmed that the Agreement
represented the only viable basis for a resolutionhe conflict
intheDRC.
324. This position was reaffmned in the following
Resolutions:
(i) Resolution 1265 (1999), adopted on 17
September 1999(UCM Annex 49).
177 (ii) Resolution 1273 (1999), adopted on 5
November 1999(UCM Annex 50).
(iii) Resolution 1279 (1999), adopted on 30
November 1999(UCM Annex 52).
(iv) Resolution 1291 (2000), adopted on 24
February 2000 (UCM Annex 58).
(v) Resolution 1296 (2000), adopted on 19
April2000 (UCM Annex 61).
(vi) Resolution 1304 (2000), adopted on 15
June 2000 (UCM Annex 70).
(vii) Resolution 1323 (2000), adopted on 13
October2000 (UCM Annex 77).
(viii) Resolution 1332 (2000), adopted on 14
December 2000 (UCM Annex 81).
F. The Pumose And Character Of The Ugandan
Presence
325. The Ugandan forces present in the territory of
the DRC are confined to a limited number of specifie locations,
with the purpose of disarming and demobilising anti-Uganda
insurgents who continue to launch cross-border attacks against
Uganda from eastern Congo, and controlling military airfields
and lines of communication, which would otherwise be
available for the deployment of Sudanese military effectives
hostile to Uganda, and for the supply ofmilitary equipment and
logistical supportto the anti-Uganda insurgents.
326. There is no zone ofUgandan military occupation
and there is no Ugandan military administration in place. In
this context it is important to appreciate that, after the faUof the
Mobutu government, the local Congolese civilian
administration largely remained in place, together with the
economie infrastructureand the banking system.
178 327. In light of the express invitation by the
Government of the DRC, the recognition of Uganda's security
concems by the States of the region, and the tenns of the
Lusaka Agreement - which authorise the presence of
Uganda's anned forces in the DRC pending the disannament
and demobilisationof the anti-Ugandainsurgents- Uganda's
military presence in Congo, for the limited purposes described
above, does not constitute a breach international law by the
Government ofU ganda.
G. The Factual Assertions In The Memorial Of The
DRC
328. In conclusion, the Government of Uganda
confirrns the facts adduced in the present chapter and also
confirms the rebuttal therein facts asserted on behalf of the
DRC. Inrespect of any factual matters in the Memorial which
have not been expressly denied or expressly admitted, the
Government ofUganda reservesits position.
179 CHAPTER XVII
LAWFUL SELF-DEFENCE: THE RELEV ANCE OF
ARTICLE 51 OF THE UNITED NATIONS
CHARTER
A. The Position Of The Uganda Govemment
329. In the previous chapter the Govemment of
Uganda bas explained the legal bases for the presence of the
Uganda People'sDefence Forces in the DRC. The legal bases
were as follows:
First : the express invitation and consent
of the Govemment of the DRC in 1997 and
1998;
Second : the multilateral recognition by
the Statesof the region in 1998 and 1999 that
Uganda has security concems relating to the
situationin the DRC;and
Third : the regime of graduated,
conditional and reciprocal obligations of
redeployment and withdrawal created by the
Lusaka Ceasefire Agreement concluded on 10
July 1999, together with the Kampala
DisengagementPlan agreed on 8 April2000.
330. The pwpose of the present chapter is to examine
the factual and legal conditions in which the Govemment of
Uganda used proportionate forciblemeasures in order to protect
its territorial integrity and political independence, such
measures not relating to the legal bases indicated in paragraph
328 above.
331. The general background can be summarised as
follows. In August 1998 the civil war, which had startedin the
eastern border townof Goma, steadily spread to other areas of
the country and this made it even more difficult for the
180Government of the DRC to maintain even a modicum of
security along the common border with Uganda. What was
even worse was that in its desperatebid to find allies against its
internai opponents, the Government of the DRC embraced an
assortment of terrorist groups that included those who had
committed genocide in Rwanda in 1994 and Ugandan anti
government groups such as the Lord's Resistance Army, or
LRA, the Allied Democratie Forces, ADF, as well as forces
loyalto the formerdictator, Idi Amin. Not only had the security
situation on the Congolese side of the common border
deterioratedas a result of the civil war, but Ugandan rebel
groups were now being reorganised and rearmed by the
Government of the DRC and by the Govemment of Sudan, and
brought within the command structure of the Congolese armed
forces.See Chapter rn, paras. 37-41. Uganda thereforehad no
option butto keep its troops in the Democratie Republic of the
Congo in order to deal with the threat posed by these foreign
sponsored rebel groups in the absence of any exercise of
governmental authority from Kinshasa, as had been envisaged
in the Protocol between the Government of the Democratie
Republic of the Congo and the Republic of Uganda. (UCM
Annex 19).
332. ln these circumstances the Govemment of
Uganda had no alternative but to resort to necessary and
proportionate measures of self-defence. The Hon. Amama
Mbabazi, Minister of State for Foreign Affairs, invoked Article
51 of the Charter in his speech to the General Assembly on 23
March 1999. (UCM Annex 42). On 9 September 1999 in a
statement in the Security Council, the Minister of State for
ForeignAffairsonce again invokedArticle51.
333. The policy of the Ugandan govemment can be
readily appreciatedwhen the securityproblemsof theregion are
understood. Thesewill now be examined.
B. The Long-Term Problem Of Border Security, 1990-
April1998
334. Therehas long been a problem of border security
with Zaïre, now the DRC. ln 1990, by way of example, the
181President's Office in Uganda reported the following incidents to
the Govemment of Zaïre:
"f. Meetings ofUgandan Dissidents in Zaire
On 1.6.90 Ugandan rebels belonging to Funa,
held a meeting at Embokolo chaïred by Lt. Col.
Abdullatiff and attended by among others Brig.
Dusman Sabuni, Maj. Isaac Lumago.
On 21.6.90 rebels held a meeting at Embokolo
chaii'edby Capt. Okwera and attended by among
others Lt.Ali Chaku.
g. Attacks by V gandan Dissidents based in
Zaïre
i On 23.4.90 about 60 rebels attacked NRA at
Ndandu-Kisinga sub-county. The rebels who
sustained serious casualties, were taken to
Nyakundi in Zaïre for treatment.
ü. In early July, 1990, some Ugandan rebels
under the command of Adinani, Nsimba and
Madira fired at an NRA Post located at Gombe -
Koboko county, Arua District. This group was ·
arrested in Zaïre. Uganda government demanded
their extradition but Zaïre authorities refused to
extradite them.
iii.On 18.7.90 4 armed thugs fired at NRA
troops at Adramacaku along the Uganda/Zaire
border after which the group withdrew inside
Zaïre.
iv. On 11.8.90, 20 armed rebels of Bazira's
group attacked Kilembe Mines and shot 2 guards
and attempted to blow up·electricity substations
atBugoye.
5. Violation.ofUganda's air space and territorial
borders
182 i. On 2.4.90, a helicopter from Zaïre illegally
entered Uganda and hovered over Rwenshama
fishing village before returning to Zaïre.
ii.On 11.4.90 armed Zairean soldiers entered
Uganda via Busunga, Bunyanguge, Kikora and
Kisiri inundibugyo." (UCM Annex 1, p. 5).
335. The persistent attacks in and against Uganda
from Congolese territory intensified after the Rwandan
genocide of 1994, the subsequent resettlement of former
Rwandan soldiers and Interahamwe militia in Congo, and
President Mobutu's efforts to reorganise and rearm these
genocidal elements for military and paramilitary activities
against Rwanda and Uganda. At the same time, President
Mobutu, working in close collaboration with the Governmentof
Sudan, organised, armed, trained and supplied various anti
Uganda insurgent groups based in eastern Congo, near the
border with Uganda. See Chapter 1,paras. 12-21.
336. The situation was explained to the Courtby the
Hon. Attorney-General ofUganda in the oral hearings last year.
In his words:
"It is a fact of history that the political turmoil in
the Democratie Republic of the Congo, which
started at its independence in1960, has had a
negative impact on Uganda and other
neighbouring countries, thereby posing a threat
to peace and security in the Great Lakes Region.
Armed groups bent on destabilizing Uganda
have often taken advantage of the absence of
governmental authority in certain remote areas of
the Democratie Republic of the Congo and have
sometimes been provided with a safe haven on
the territory of the Democratie Republic of the
Congo. For example, in November 199q, a force
of anti-Uganda rebels, known as the Allied
Democratie Forces or ADF, number oier~g
3,000 men invaded Uganda through the border
post of Mpondwe and made a ferocious attempt
183to capture the key town of Kasese and its
adjoining airstrip. After heavy fighting and loss
of life, they retumed to their bases inside the
Democratie Republic of the Congo from where
they and other Uganda rebel groups have
continued to launch attacks on Uganda. Itis
these groups that subsequently attacked and
killed foreign tourists at Bwindi, and the same
groups that carried out a massacreof students at
Kihwamba technical college where 80 students
wereburnt to deathin their dormitories.
When the current Government of the Democratie
Republic of the Congo came to power in 1997,it
quickly recognized that there was a serious
securityproblem and expressed its willingness to
tackle itjointly with the GovernmentofUganda.
This was because the new Govemment had
inherited very weak State structures and
therefore lacked the capacity on its own to
contain the armed Ugandan dissident groups·
which had established bases on Congolese
territory with the express support of the late
dictator, Mobutu Sese Seko, for the purposes of
destabilizingUganda. After due consultations, a
Protocol was signed between the two countries
providing for joint operations to improve
securityin our border areas.This is how Uganda
security forces found themselves on the soil of
the Democratie Republic of the Congo not by
invasionbut by invitation.
For the firstew months following the signing of
the Protocol, joint operations between Uganda
and the Democratie Republic of the Congo
security forces were successful in containing the
menace of the renegade armed groups.
However, this arrangement was interrupted by a
new cycle of civil war which broke out in the
Democratie Republic of the Congo in August
1998. The civil war broke out because of an
184 internai disagreement within the broad coalition
that had captured power from Mobutu the
previousyear." (CR 2000/23,pp. 6-7).
337. The situation was also explained to the General
Assembly by the Minister of State for Foreign Affairs of
Ugandaon 23March 1999. In his words:
"After the 1994 Rwanda genocide, the
genocidaires, the ex-FAR and Interahamwe
militia crossed into the then Zaïre with hundreds
of thousands of refugees. As everyone knows
they then proceeded to hold these refugees
hostage insideZaïre. The Mobutu govemment
then helped these genocidaires to re-organize,
retrain, rearm and be given territorial support
recapture power in Rwanda. The Uganda
govemment totally opposed this move and made
its positionveryclear ont.
In preparation for the intended recapture of ·
power by the genocidaires in Rwanda, President
Mobutu forged an alliance with the National
Islamic Front regime in Khartoum, Sudan, not
only to aid and abet the crime of genocide in
Rwanda but also to specifically destabilize
Uganda in the hope that then Uganda would not
be in a positionto support Rwanda. In fulfilment
of this plan, attackswere launchedon two fronts,
one in North West Uganda in a region called
West Nile and the other in Western Uganda in
the districtf Kasese. Both attacks were from
Zairean territory. At the same time the re
organizationand rearming of genocidaires in the
DRC had reached an advanced stage. The
Uganda govemment decided to act in self
defence by fust re-capturing the territory these
criminal elements had occupied and following
them into Zairean territory in hot pursuit we
are fully empowered to do under Article 51 of
the UN Charter. It was this act of self-defence
185 against DRC-based rebets, which was
undertak:en with regional and international
understanding and support, that resulted in the
faUof PresidentMobutu. PresidentKabila was a
direct bi-product this process.
After President Kabila assumed power in. the
DRC, we bad hoped that since he knew our
security concems he would address them.
Unfortunatelyhe did not. At that early stage we
appreciatedthe weak:structures which President
Kabila bad inherited from Mobutu's regime.
President Kabila initially pleaded incapacity
handle this situation. That is why he invited
Uganda to deploy Uganda Peoples Defence
Forces (UPDF) inside Congo to flush out the
Allied Democratie Forces (ADF) rebets who
were operating from DRC territory. A protocol
to this effect was signed between the two
countries on 27th April.98." (UCM Annex
42,p. 14,underliningadded).
338. The textof the protocol is significantnot least in
the recognition by the DRC thatarmed groups existed onits
territory. The text, in materialpart, is as follows:
''PROTOCOLBETWEEN THE DEMOCRATIC
REPUBLIC OF CONGO AND REPUBLIC OF
UGANDA ON SECURITY ALONG THE
COMMONBORDER
The two delegationspursued their discussionson
the preoccupying securitv situation that prevails
alongthe commonborder
• In order to put an end to the existence of
the rebel groups operating on either side of
the common border. namely in the
Ruwenzori,
186 • Whereas the two delegations would like
to see their people live in peace in
accordance with the will expressed by the
two Heads of State to guarantee and
strengthen peace, security and stability in the
Great Lakes Regions; which are important
factors for the social and economie
development;
• Given that an in-depth-analysis of the
military, security and immigration aspects
has been done.
The following two parties agreed as follows
Concerning the Militarv
The two parties recognised the existence of
enemy groups which operate on either side of the
comrnon border. Consequently, the two armies
agreed to co-operate in order to insure security
and peace along the comrnon border.
As securitv services
The two securitv services concurred on the
strengthening of their co-operation." (UCM 19,
underlining added).
339. This Protocol reflects the situationas it was in
April 1998. It is now necessary to move forward to an
examination of the short-term problem ofborder security.
C. The Short-Term Problem Of Border Security, April
1998To The Present
340. The nature of the short-term threat to the security
of Uganda was analysed by the Hon. Minister of State for
Foreign Mfairs of Uganda in the General Assembly on 23
March 1999. In his words:
187"For sorne time, the joint operations were
successful. But this was not to last. The
situation steadily deteriorated to the extent that
sorne commanders in the DRC armed forces
(FAC) did not only become uncooperative but
also started co-habiting peacefully with ADF
rebets. When the FAC units in these areas
mutinied, a leading rebel who was the son of one
of the ADF senior commanders was found and
captured in the house of Kabila's brigade
commander in this section. The choice Uganda
hadwas either to put down, by force, this mutiny
in support of Kabila or to remain neutral as long
as whoever was in control understood our
primary objective of pursuing the ADF rebets.
Uganda chose the latter. Precisely because the
Uganda government did not want to interfere in
the internaaffairsof the DRC.
As the situation of rebellion in the DRC
worsened, like his predecessor Mobutu did,
President Kabila went to Khartoum and worked
out a deal with President Bashir of the Sudan, for
the latter to step up support to the Ugandan
rebets on DRC territory. Indeed, since then,
more Ugandan rebel groups were mobilized by
the Sudan and moved to the DRC. The support
to Ugandan rebets by President Kabila's
government has itself since become evident. The
UPDF and Congolese rebets have captured many
Ugandans belonging to different rebel groups
operating inside Congo.
The Lords Resistance Army (LRA), the Uganda
National Rescue Front II (UNFRll), the West
Nile Bank Front (WNBF), the Allied Democratie
Forces (ADF) and ex-Uganda 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 genocidaires ofRwanda, the Interhamwe and
188ex-FAR. These are criminal gangs that have
inflicted untold misery on the people Uganda.
They attacked, for example, K.ichwamba
Technical College in Western Uganda in June
1998. The students were locked inside their
donnitories which were then dowsed in petrol
frre. Those who tried to escape were gunned
down. More than 50 students were bumt to
death andmore than 100were abducted.
It would have been a grave omission of its
national securitydutyif Uganda govemment bad
not taken appropriate measures to address this
threat againstour national stability.
In the meantime, because of Congolese internai
political contradictions, the rebellion of 2
August, 1998 broke out. President Kabila's
immediate reaction was to look for foreign
military assistance. This was given by
Zimbabwe, Angola and Namibia which decided
on a unilateral military intervention instead
waiting for a regional consensus on the matter as
originallyproposed by President Museveni. The
interventionwas on the pretext that theC bad
been invaded by Uganda and Rwanda. As a
matter of fact Uganda then only had, inside
DRC, two battalions. Whereas Uganda was
primarily concerned about the activitiesf the
Ugandan rebel groups in the DRC, the
interventionby Zimbabwe, Angola,Namibia and
later Chad and Sudan, introduced a new
dimension to the conflict. Against the perceived
threat of increased destabilisation of Uganda
especiallyby Sudan using Congoleseterritory as
they bad previously done, Uganda deployed
additionalforcesto counterthis threat.
The numerous times the Sudanese military bas
made incursions into Uganda are weil
documented and known. These include aerial
189 bombardments and cross border military attacks.
Initially Sudan was using its own territory as the
launching pad for the attacks on Uganda. When
the government forces lost much of Southem
Sudan to the SPLM/SPLA, the Khartoum regime
increasingly using the territoryf the Democratie
Republic of Congo." (UCM Annex 42, pp. 14-
15).
D. The Legal Elements: The Application Of Article 51
Of The United Nations Charter
341. The relevant provisions of the United Nations
Charter are as follows:
"Article 51
Nothing in the present Charter shall impair the
inherent right of individual or collective self
defence if an armed attack occurs against a
Member of the United Nations, until the Security
Council bas taken measures necessary to
maintain international peace and security.
Measures taken by Members in the exercise of
this right of self-defence shall be immediately
reported to the Security Council and shall not in
any way affect the authority and responsibilityf
the Security Council under the present Charter to
take at any time such action as it deems
necessary in order to maintain or restore
international peace andsecurity."
342. The present task is to examine the substantial
evidence to the effect that the use of armed bands operating
from the territory of a host State against another State as an
instrument of national policy constitutes an armed attack within
the meaning of Article 51 of the Charter. This view of the
matter is supported by a wide range of legal authority, and this
will be reviewed.
(a) The Judgment of the Court in the Merits
Phase of the Nicaragua Case
190 343. The Judgment of the Court includes the
followingpassage:
"In the case of individual self-defence, the
exercise of this right is subject to the State
concerned having been the victim of an armed
attack. Reliance on collective self-defence of
course does not remove the need for this. There
appears now to be general agreement on the
nature of the acts which can be treated as
constituting armed attacks. In particular, it may
be considered to be agreed that an armed attack
must be understood as including not merely
action by regular armed forces across an
international border, but also 'the sending by or
on behalf of a State of armed bands, groups,
irregularsor mercenaries,which carryout acts of
armed force against another State of such gravity
as to amount to' (inter alia) an actual armed
attack conducted by regular forces, 'or its
substantial involvement therein.' This
description contained in Article 3, paragraph(g)
of the Definition of Aggression annexed to
General Assembly resolution 3314 (XXIX), may
be taken to reflect customary international law.
The Court sees no reason to deny that, in
customary law. the prohibition of armed attacks
may apply to the sending by a State of armed
bands to the territory of another State. if such an
operation.because of its scale and effects.would
have been classified as an armed attack rather
than as a mere frontier incident bad it been
carried out by regular armed forces. But the
Court does not believe that the conceptf 'armed
attack' includes not only acts by armed bands
where such acts occur on a sigrûficantscale but
also assistance to rebels in the form of the
provision of weapons or logistical or other
support. Such assistance may be regarded as a
threat or use of force, or amount to intervention
in the internai or externat affairs of other States.
191 It is also clear that it is the State which is the
victim of an armed attack which must fonn and
declare the view that it has been so attacked.
There is no rule in customary international law
pennitting another State to exercise the right of
collective self-defence on the basis of its own
assessment of the situation. Where collective
self-defence is invoked, it is to be expected that
the State for whose benefit this right is used will
have declared itselfto be the victim of an anned
attack." (I.C.J. Reports, 1986, p.103, para. 195,
underliningadded).
344. This reasoning was subscribed to by the majority
of the Court, consisting of twelve Judges, including the Judges
who produced Separate Opinions. The Separate Opinion of
Judge Ruda provided express support for the reasoning ibid.,
pp. 175-76,paras. 9-15).
(b) General Assembly Resolution on the
Definition of Aggression
345. In 1974 the General Assembly adopted a
resolution on the definition of aggression which provided as
follows in the first three articles:
"Article 1
Aggression isthe use of anned forceby a
state against the sovereignty, territorial integrity
or political independence of another state or in
any other manner inconsistent with the Charter
of the United Nations, as set out in this
definition.
Article 2
The first use of armed force by a state in
contravention of the Charter shall constitute
prima facie evidence of an act of aggression
althoughthe Security Council may in conformity
with the Charter conclude that a determination
192that an act of aggression has been committed
would not be justified in the light of other
relevant circumstances including the fact that the
acts concemed or their consequences are not of
sufficient gravity.
Article 3
Any of the following acts, regardless of a
declaration of war, shaH, subject to and in
accordance with the provisions of Article 2,
qualify as an act of aggression:
(a) The invasion or attack by the armed forces of
a state of the territory of another state, or any
military occupation, however temporary,
resulting from such invasion or attack, or any
annexation by the use of force of the territory of
another state or part thereof;
(b) Bombardment by the armed forces of a state
against the territory of another state or the use of
any weapons by a state against the territory of
another state;
(c) The blockade of the ports or coasts of astate
by the armed forces of another state;
(d) An attack by the armed forces of a state on
the land, sea or air forces, marine and air fleets
of another state;
(e) The use of armed forces of one state, which
are within the territory of another state with the
agreement of the receiving state, in contravention
of the conditions provided for in the agreement
or any extension of their presence in such
territory beyond the tennination of the
agreement;
(f) The action of astate in allowing its territory,
which it has placed at the disposai of another
193 state, to be used by that other state for
perpetrating an act of aggression against a third
state;
(g) The sending by or on behalf of a state of
armed bands. groups. irregulars or mercenaries.
which carry out acts of armed force against
another stateof such gravity as to amount to the
acts listed above.or its substantial involvement
therein." (underlining added).
346. The final paragraph of this definition calls for
sorne commentary. Such activity is characterised not as
"indirect aggression" but as an "act of aggression." Moreover,
the phrase "or its substantial involvement therein" strongly
indicates that the formulation extends to the provision of
logistical support. The drafting history is examined in the
Dissenting Opinion of Judge Schwebel in the Nicaragua case.
See I.C.J. Reports, pp. 341-47, paras. 162-71.
(c) Declaration of Principles of International
Law Concerning Friendly Relations and Co
operation Among States in Accordance with
the Charter of the United Nations
347. First of all, the Declaration sets forth varions
principles ofwhich the first is as follows:
''The principle that States shall refrain in
their international relations from threatr use
of force against the territorial integrity or
political independence of any State, or inany
other manner inconsistent with the purposes
of the United Nations."
The commentary attached to this text includes a number of
more specifie principles, two of which are of particular
relevance, namely:
First:
194 "Every State has the duty to refrain from
organizing or encouraging the organization of
irregular forces or armed bands, including
mercenaries, for incursion into the territory of
another State"
And second:
"Every State has the duty to refrain from
organizing, instigating, assisting or participating
in acts of civil strife or terrorist acts in another
State or acquiescing in organized activities
within its territory directed towards the
commission of such acts, when the acts referred
to in the present paragraphinvolve a threat or use
of force."
348. The two paragraphs of commentary provide
significant clarifications.n particular, the second paragraph
mak:es clear that the principle prohibiting the use of force
applies to forms of assistance in acts of civil strife in another
State. The secondparagraph also confirmsthat acquiescencein
"organized activities ... directed towards the commission of
such acts" is unlawful "when the acts referred to in the present
paragraphinvolvea threat or use of force."
(d) Doctrine
349. The doctrine provides firm support for the view
that the use of armed bands operating from the territory of a
host State against another State as an instrument of national
policyconstitutesan armed attackwithin the meaning of Article
51 of the Charter. The sources are set forth in chronological
order.
(i) Hans Kelsen, The Law of the United
Nations, London, 1951,p. 798.
"The 'armed attack' against which the use of
force as individual or collective self-defence is
permitted, is not restricted to aggressive actions
undertak:en by Members. The right of self-
195defence applies also to armed attacks by non
members. However, competent to interpret the
term 'armed attack' and to ascertain that an
armed attack has occurred in a concrete case is
the state which considers itself as being attacked,
and the other states which are willing to assist it
in its defence. These states may Widerstand by
'armed attack' not only the fact that astate has
resorted to war against another state, but also the
fact that a state has interfered in the civil war
taking place within another state by arming or
otherwise assisting the revolutionary group in the
fight against the legitimate government."
(underlining added)
(ü) lan Brownlie, International Law and the Use
ofForce by States, Oxford, 1963,pp. 278-9.
"Since the phrase 'armed attack' strongly
suggests a trespass it is very doubtful if it applies
to the case of aid to revolutionary groups and
forms of annoyance which do not involve
offensive operations by the forces of a state.
Sporadic operations by armed bands would also
seem to faU outside the concept of 'armed
attack'. However. it is conceivable that a co
ordinated and general campaign by powerful
bands of irregulars. with obvions or easily
proven complicity of the govemment of a state
from which they operate. would constitute an
'armed attack', more especially if the object
were the forcible settlement of a diSjlute or the
acquisition ofterritory." (underlining added)
(iii) Hans Kelsen, Collective Security Under
International Law, U.S. Naval War College,
1954, p. 88.
"Since the Charter of the United Nations does
not define the term 'armed attack' used in Article
51, the members of the United Nations in
196 exercising their right of individual or collective
self-defence may interpret 'anned attack' to
mean not only an action in which a State uses its
own armed force but also a revolutionary
movement which takes place in one State but
which is initiated or supported by another State."
(underlining added)
(iv) Marjorie M. Whiteman, Digest of
International Law, Vol. 12, U.S. Dept. of State,
Washington, August 1971, pp. 225-30.
Dr. Whiteman sets out a long passage from Hull and
Novogrod, Law and Vietnam, which quotes the passage from
Kelsen (in 1954) quoted immediately above.
(v) Pierluigi Lamberti Zanardi, in Cassese (ed.),
The Current Legal Regulation of the Use of
Force, Dordrecht, 1986, p. 112.
"The hardest of these conditions to verify is
without a doùbt the attribution of the use of force
to a State, that is, the subjective elementof the
wrong-doing. It should be made clear that in
indirect aggression,by definition, force is never
used by individuals acting as organs of a State,
but by private individuals acting as such. For the
actions of these private individuals to be
attributable to atate there must be such a close
link between the State and the individuals that it
can be established that the latter are de facto
acting on behalf of the former, according to the
formulation used in Art. 8 of the draft articles on
State responsibility drawn up by the U.N.
International Law Commission.
Taking this as our premise we can now tackle the
question of greatest interest: that is, whether so
called acts of indirect aggression constitute
anned attack as intended by Art. 51 ofthe U.N.
Charter.
197For this purpose we must consider the two types
of indirect aggression we have singled out
separately: first, the sending of armed bands;
second, giving assistance to these groups and/or
acquiescing in their activities.
Itis hard to maintain that the sending by a State
of individuals or groups of individuals not
belonging to the regular armed forces. to perform
militarv operations in the territory of another
State. whether guerrilla acts or even only acts of
terrorism or sabotage. does not constitute armed
attack in the sense of Art. 51. The notion itself
of 'sending' presupposes a very close link
between the sending State and the armed groups,
in view of which it must be held that as a general
rule the latter act in practice defacto organs of
the sending State, to which their acts must
therefore be attributed.
It may be that the actions are isolated and ·
sporadic, in which case they will not meet with
the requisites of extent and gravity characteristic
of military action. If these reauirements are ·
satisfied. however. it is guite wrong to classify
the sending of armed bands as indirect
aggression, because it is in fact an act of direct
military aggression. even if carried out by
irregular troops. that is. it is an armed attack in
the sense of Art. 51.
In the case of the second type of activity
mentioned above, that is when a State does no
more than assist or tolerate groups of individuals
which as private citizens prepare or carry out
military operations against another State, it is
unlikely that the material elements of an armed
attack as defined by Art. 51 will be present."
(footnotes omitted, underlining added).
198(vi)Yoram Dinstein, War. Aggression and Self
defence,Cambridge, 1988,pp. 188-90.
"In the Nicaragua case, the InternationalCourtof
Justice held that 'it may be considered to be
agreed that an armed attack must be understood
as including not merely action by regular armed
forces across an international border', but also
the dispatch of armed bands or 'irregulars' into
the territoryof another State. The Court quoted
Article 3(g) of the General Assembly's
Definition of Aggression (see supra, Chapter 5,
B), which it took 'to reflect customary
internationallaw.'
It may be added that, under the Declaration on
Principles of International Law Concerning
Friendly Relations and Co-operation among
States in accordance with the Charter of the
United Nations, adopted unanimously by the
General Assembly in 1970, 'everyState has the
duty to refrain from organizing or encouraging
the organization of irregular forces or armed
bands ... for incursion into the territory of
another State.' The Draft Code of Offences
against the Peace and Security of Mankind,
formulated by the International Law
Commission in 1954, listed among these
offences the organization (or the encouragement
of organization) by the authorities of a State of
armed bands for incursions into the territory of
another State, direct support of such incursions,
and even the toleration of the use of the local
territoryas a base of operations by armed bands
against another State. A parallel provision
pertained to undertaking, encouraging or
tolerating terrorist activities.the latest phase
of the work of the Commission, the Special
Rapporteur (D. Thiam) has dropped the clause
regarding armed bands, but has expanded the
199text dealing with terrorist acts (which are now
defined as crimes against peace).
Since assaults by irregular troops, armed bands
or terrorists are typically conducted by small
groups, employing hit-and-nm pinprick tactics,
the de minimis clause of the General Assembly's
Definition of Aggression is clearly apposite. To
qualify as an armed attack, assaults of this kind
must be (in the words of the Definition) of
'sufficient gravity.' This is not to say that every
single incident, considered independently, bas to
meet the standard of sufficient gravity. A
persuasive argument can be made that, should a
distinctive patternof behaviour emerge, a series
of pin-prick assaults might be weighted in its
totality and count as an armed attack (see infra,
Chapter S.A).
The Judgment in the Nicaragua case pronounced
that 'while the concept of an anned attack
includes the despatch by one State of armed
bands into the territory of another State, the
supply of arms and other support to such bands
cannot be equated with armed attack.' The Court
did 'not believe' that 'assistance to rebets in the
form of the provision of weapons or logistical or
other support' rates as an anned attack. These are
sweeping statements that ought to be narrowed
down. In his Dissenting Opinion, Judge Sir
Robert Jennings expressed the view that,
whereas 'the mere provision of anns cannot be
said to amount to an armed attack', it may
qualify as such when coupled with 'logistical or
other support.' In another dissent, Judge
Schwebel stressed the words 'substantial
involvement therein' (appearing in Article 3(g)
of the Definition of Aggression), which are
incompatible with the language used by the
majority.
200As observed by R. Ago, in a report to the
International Law Commission, when a State
'encourages and even promotes' the organization
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 individuals or 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 shipments alone
may not be equivalent to an armed attack. But
when the overall policy of the Arcadian
Govemment discloses that it conspires with
armed bands fighting against Utopia, Arcadia is
definitely committing an armed attack."
(footnotes omitted).
(vii) Albrecht Randelzhofer, in Simma (ed.),
The Charter of the United Nations, Oxford,
1994, p. 673.
"(f) Participation in the Use of Force by
Militari/y Organized Unofficial Groups. It is
generally recognized today that this kind of
indirect force is covered by the prohibition of the
use of force. However, the specifie pre
conditions required for the assistance to the
'private' useof force to be in breach of Art. 2(4)
are stillncleat. The same is true of the question
as to whether ~d to what extent the indirect use
of force may be classified as constituting an
'armed attack.' Again leaving aside the
controversial details, it is widely accepted in
principle that at least certain forms of indirect
force fall under the definitionof 'armed attack.'
Thus in its Art. 3(g) the Definition of Aggression
characterizes certain forms of assistance to the
'private' use of force as 'acts of aggression.'
Although aware of the provision's radiative
201 influence on the right of self-defence laid down
in Art. 51, even those states, such as the Soviet
Union and the non-aligned countries, which had
in the past denied the existence of a right of self
defence against indirect aggression, tolerated the
inclusion of this example in the list of 'acts of
aggression' and concentrated their efforts on
keeping the scope of Art. 3(g) as narrow as
possible. The line of argument presented by the
Soviet Union and her allies regarding the Soviet
invasion of Mghanistan also indicates that the
concept of an 'indirect anned attack' has now
been accepted by states which previously tended
to view it with reserve." (footnotes omitted).
(e) Evaluation of the Doctrine
350. It is necessary to recall the existence of a
powerfully expressed alternative view according to which the
formulation of the majority of the Court in the Nicaragua case
was excessively narrow in its approach to the interpretation of
the phrase "anned attack." The alternative view can be
expressed in summary form thus: the giving of logistical
support to anned bands with knowledge of their objectives may
constitute an anned attack.
351. This alternative approach appears in the
Dissenting Opinion of ·Sir Robert Jennings in the Nicaragua
case. In his words:
''TheCourt (para. 195) allows that, where aState
is involved with the organization of 'anned
bands' operating in the territory of another State,
this, 'because of its scale and effects,' could
amount to 'armed attack' under Article 51: but
that this does not extend to 'assistance to rebels
in the form of the provision of weapons or
logistical or other support' (ibid). Such conduct
the Court goes on to say, may not amount to an
anned attack : but 'may be regarded as a threat
202 or use of force, or amount to intervention in the
internaior externat affairsf otherStates'(ibid).
lt may readily be agreed that the mere provision
of arms cannot be said to amount to an armed
attack. But the provision of arms, may,
nevertheless, be a very important element in
what might be thought to amount to armed
attack, where it is coupled with other kinds of
involvement.Accordingly,it seems tome that to
say that the provision of arms, coupled with
'logisticalor other support's not armedattack is
going much too far. Logistical support may
itself be crucial. According to the dictionary,
logistics covers the 'artf moving, lodging, and
supplying troops and equipment' (Concise
Oxford English Dictionary, 7th ed. 1982). If
there is added to ali this 'other support', it
becomes difficult to understand what it is, short
of direct attack by a State'sown forces, that may
not be done apparentlywithout a lawfulresponse
in the fonn of collective self-defence : nor
indeed may be responded to atali by the use of
force or threat of force, for, to cite the Court
again, 'Statesdo not have a right of "collective''
armed response to acts which do not constitute
an "armed attack."' (seepara. 211).
This looks tome neither realistic nor just in the
world where power struggles are in every
continent carried on by destabilization,
interference in civil strife, comfort, aid and
encouragement to rebels, and the like ... "(I.C.J.
Reports, 1986, p.543).
352. In his substantial DissentingOpinionin the same
case, Judge Schwebel asseverated that the Court's conclusion
on the question of armed attack was inconsistent with the
General Assembly's definition of aggression: ibid, pp. 341-47,
paras. 162-71; and see generally ibid, at pages 331-47, paras.
154-71.
203 353. A similar position has been adopted by Judge
Higgins in a chapter of ber book Problems and Process: see
pages 248-51. In the followingpassage she offers this criticism
of the majorityposition in theNicaraguacase:
''The Court next addressed the question as to
what military acts would constitute 'armed
attack.' Citingthe GeneralAssemblyResolution
on the Definition of Aggression, the Court said
that an armed attack could include not merely
action by regular anned forces across an
internationalborder, but also 'the sending by or
on behalf of a state of armed bands, groups,
irregularsor mercenaries,whichcarry out acts of
armed force against another state' such as to
amount to an actual armed attack renderedby
regular forces. The Court foundthis to represent
customaryinternationallaw (without elaborating
how itreached thatview)andcontinued:
The Court does not believe that the concept of
'armed attack' includes not only acts by armed
bands where such acts occur on a signiticant
scale but also assistance.o rebels in the form of
the provision of weapons or logistical or other
support. Such assistance may be regarded as a
threator use of force...
To summarise, an armed attack could take place
directly, through the useof one'sown forces, or
indirectly, through armed bands or irregulars.
The key is the scale of the activity. If it is not
very substantial, it may still be an unlawful use
of force,but it will not be an armed attack - and
bence no self-defence may be used against it.
That finding bas occasioned a torrent of
criticism, the critics contending that it is an
encouragement for low-grade terrorism because
the state at whom it is directed cannot use
force in self-defence against it. As Judge
Schwebel put it in his dissentingopinion: 'The
204Court appears to offer - quite gratuitously - a
prescription for overthrow of weaker
governments by predatory governments while
denying potential victims what in sorne cases
may be their only hope of survival' -he is there
referring to seeking assistance through collective
self-defence.
What 1find puzzling about the Court'sreasoning
is·this. It refers to the Assembly Resolution on
the Definition of Aggression which states that an
armed attack occurs if the use of force by bands
or irregulars is equivalent to an armed attack
by the regular forces of a state. But how much
force does one need by the regular forces of a
state before it is 'an armed attack' and allows
of self-defence? Ifa division of troops rolls over
the border, is the decision as to whether force
can be used to repel them the level of force
they are using? By adopting the unsatisfactory
definition of the General Assembly Aggression
Resolution, and proclaiming it customary
international law, the Court appears to have
selected criteria that are operationally
unworkable. When a state bas to decide whether
it can repel incessant low-level irregular military
activity, does it really have to decide whether
that activity is the equivalentof an armed attack
by a foreign army - and, anyway, is not any use
of force by a foreign army entitled to be met by
sufficient force to require it to withdraw? Or is
that now in doubt also? ls the question of level
of violence by regular forces not really an issue
of proportionality, rather than a question of
determining what is 'an armed attack'?
Two final points: the Court was purporting to
deal with customary international law rather than
the Charter; the Court in terms avoided
pronouncing upon the implications of all this for
the question of whether there exists a right of
205 anticipatory self-defence." (Problems and
Process, Oxford, 1994, pp. 250-51, footnotes
omitted).
(t) StatePractice
354. It is of sorne relevance to refer to a pattern of
pre-war treaties which defined aggression so as to include the
provision of support to armed bands. The London Conventions
for the Definition of Aggression 25 signed on July 3, 4 and 5,
1933, by the U.S.S.R., Romania, Poland, Afghanistan, Persia,
Latvia, Estonia, Turkey, Lithuania, Czechoslovakia and
Yugoslavia, and acceded to by Finland, pmvide that the
aggressor shali be considered to be that State whlch is the first
to commit certain acts, interalia:
·''Provision of support to armed bands in its
territory which have invaded the territory of
another State, or refusai, notwithstanding the
request of the invaded State, to take, in its own
territory, ali the measures in its power to deprive
those bands of ali assistance or protection."
355. In 1934, in the Protocol-Annex to the Pact of the
26
Balkan Entente , Greece, Romania, Yugoslavia and Turkey
incorporated the definition of the London Conventions. The
Saadabad Pact of 1937 was a Treaty of Non-Aggression
between Turkey, Afghanistan, Iraq and Iran, which did not refer
to anned bands in the list of acts of aggression which it
contained, but provided in a separate article as foliows 27:
2S
Article 2, para.5; 147 League of Nations Treaty Series,67; 148
League of Nations 7reaty Series, 79; 148 League of Nations Treaty Series,
211; 27 A.J.I.L.(1933), Suppl., pp. 192, 194, 195; Hudso/nt. Legislation,
VI, Nos. 339, 340.
26 Feb. 9, 1934; 153 League of Nations Treaty Series,156; Hudson,
/nt. Legislation,VNo. 364a.
27
Signed July, 1937: Art. 7; 19League of Nations Treaty Series21;
Hudson, /nt. LegislationVII, No. 491;Survey of /nt. Affai1936, pp. 793-
803.
206 "Each of the High Contracting Parties undertake
to prevent, within his respective frontiers, the
formation or activities of armed bands,
associations or organisations to subvert the
established institutions,or disturb the order or
security of any part, whether situated on the
frontieror elsewhere, of the territory of another
Party, or to change the constitutional system of
such other Party."
356. The Foreign Relations Committee of the United
States Senate commented as follows on the phrase "armed
attack" in Articl5 of the North Atlantic Treaty:
"Experience bas shown that armed attack is
ordinarily self-evident ... it should be pointed out
that the words 'armed attack' clearly do not
mean an incident created by irresponsible groups
or individuals, but rather an attack by one State
upon another. Obviously, purely internai
disorders or revolutions would not be
considered 'armed attack' within the meaning of
Article 5. However, if a revolution were aided
and abetted by an outside power such assistance
might possibly be considered an armed attack."
(U.S. Senate, Report of the Committee on
Foreign Relations on the North Atlantic Treaty,
Exec. Report No. 8, p. 13).
357. The Digest of United States Practice for 1974
contains the following:
"On April 12, 1974, the United Nations Special
Committee on the Question of Defining
Aggression approved by consensus the text of a
draft definition of aggression. The following is
an excerpt from a statement on the text made to
the Special Committee on April 12 by Robert
Rosenstock, Legal Affairs Adviser to the U.S.
Mission to the United Nations, and U.S.
Representative to the Special Committee:
207 * * *
My delegation believes this committee may take
pride in arriving at a formulation on the question
of aggression. This bas been a task on which
internationallawyers have labored for over half a
century.
The text we have forwarded to the General
Assembly is not perfect; that would be
impossible if the views of 35 states are to be
harmonized. It is with this understanding that
my delegation raised no objection to this text
being forwarded to the General Assembly for
finalaction.
We should, of course, not allow our success to
lead us to place too great an emphasis on what
we have accomplished. Even a legally perfect
definition of aggression could do more harm
than good if it were given too great an emphasis.
Whether international law provides the
framework of peremptory norms from which
states derive their sovereignty or whether it
provides the framework for reasoned discourse
among states or decisionmakers is not an issue
we must decide here. What we have
produced is a document for use by the
Security Council. The law concerning the use
of force is found in the Charter and in the
Declaration on Principles of International Law
Concerning Friendly Relations. The preambular
reaffirmation of the Friendly Relations
Declaration underlines this point.
The text we have sent to the General Assembly is
a draft recommendation by the General
Assembly designed to provide guidance for the
Security Council in the exercise of its primary
responsibility under the Charter to maintain and,
where necessary, restore international peace and
208 security. While it does not and cannot lirnit the
discretion of the Security Council, it is to be
hoped this recommendation will facilitate
consideration by the Security Council of the
complex issues involved in the question of
aggression. It would, however, be to
misconstrue the function of Chapter VII of the
Charter if the Council were led by this text to
delay urgent action under Chapter VII in order
firstto settle the question of whether an act of
aggression bad taken place when a finding of a
'threatto the peace' or a 'breach of the peace'
would more expeditiously and productively
activatethe collective security mechanism of the
Charter." (Arthur W. Rovine (ed.), Digest of
United States Practice in International Law,
1974,Dept.ofState, p. 693).
358. The definition of aggression thus adopted by the
United States is as follows:
"(a) The invasion or attack by the armed forces
of a state of the territory of anotherstate, or any
military occupation, however temporary,
resulting from such invasion or attack, or any
annexationby the use of force of the territory of
anotherstateor part thereof;
(b) Bombardmentby the armed forces of a state
againstthe territoryof another state or the use of
any weapons by a state against the territory of
anotht;:rstate;
(c) The blockade of the ports or coasts of a state
by the armedforces of anotherstate;
(d)An attack by the armed forces of a state on
the land, sea orair forces, marine and air fleets
of anotherstate;
(e) The use of armed forces of one state, which
are within the territoryf another state with the
209 agreement of the receiving state, in contravention
of the conditions provided for in the agreement
or any extension of their presence in such
territory beyond the termination of the
agreement;
(t) The action of astate in allowing its territory,
which it has placed at the disposai of another
state, to be used by that other state for
perpetrating an act of aggression against a third
state;
(g) The sending by or on behalf of a state of
armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against
another state of such gravity as toamount to the
actslisted above, or its substantial involvement
therein." (ibid., pp. 696-97, underlining added).
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
following elements, taken both separately and cumulatively:
(a) The sending by a State of armed bands to the
territory of another State in conditions in which, had the
operation been carried out by regular armed forces, it would
have been classified as an armed attack (rather than as a mere
frontier incident).
(b) The sponsoring of armed bands by a State by the
provision of logistical support in the form of weapons, training
or financial assistance; in these circumstances, and in the
presence of a shared purpose, the armed bands become agents,
or "defacto organs," of the sponsoring State.
(c) The operations of armed groups which form part
of the command structure of the armed forces of the State
concerned, whatever the nomenclature used to describe
individual units.
210 (d) Inother circumstancesin which there is evidence
of a conspiracy between the State concerned and the armed
bands fighting againstthe Statetaking actionin self-defence.
E. TheApplicationOfTheLawTo TheFacts
360. For present purposes, that is the application of
the provisions of Article 51 of the Charter to the facts, it is
necessary to analyse military and political developments in
relation to three separateperiods.
361. Inthe fust of these periods, from early 1994 to
approximately May 1997, the Government of the Congo
provided military and logistical support to anti-Uganda
insurgents. The armed groups thus supported were the WBNF,
LRA, and ADF. See Chapter I above, paras. 15-21. In this
period there were attacks on Uganda, as at Mpondwe in 1996,
but Ugandan troops were not operating within the Congo. In
other words no externataction was taken by way of self-defence
or otherwise.
362. In the period May 1997 onwards, Ugandan
armed forces were operating within the DRC with the consent
of the government and this co-operation continued until at least
August 1998. See Chapter II above, paras. 30-31. At this stage
also there was no questionof reliance upon Article 51; although
the operations within the Congo were clearly motivated by the
imperative of self-defence against insurgents operating out of
the DRC, the legal basis for such operations was the consent of
theDRC.
363. In the period May to August 1998 a series of
important changes occurred which have been described in
Chapters ill and IV above. President Kabila of the DRC
effected a major realignment in his alliances.In particular, he
made a military alliance with the Government of Sudan in May
1998. See Chapter ill, paras. 38-39; and Chapter IV, paras. 47-
50. It is important in this context for the Court to appreciate the
extent to which the Sudan bad presented a serious military
threat to Uganda. The Sudan bad been conducting armed
actions against the Republic ofUganda since 1986, and bad at
times bombed Ugandan towns and villages across the long
211boundary that divides southern Sudan from northern Uganda.
The Govemment of the DRC had now agreed to put at the
disposai of the Sudan aU the airfields in northem and eastern
Congo, and the Sudan bad agreed to use these military airfields
to deliver arms, supplies and troops to support the FAC, and
also to support the anti-Uganda armed groups in the Uganda
Congo border region. In the result, the Sudan bad succeeded in
opening a second front against Uganda. An immediate
consequence of this realignment was the recrudescence of
military assistance and logistical support to the anti-Uganda
armed groups in the period June 1998 onward followed by their
incorporation into the command structure of the official
Congolese armed forces. See above Chapter rn, paras. 38-41;
Chapter N, paras. 47, 49-50.
364. In August and September 1998, President Kabila
reaffinned his alliance with Sudan and this bad an immediate
practical outcome with the arrivai and deployment in eastern
Congo of a Sudanese anny brigade of 2,500 troops. See above
Chapter N, para. 48. The position was explained very clear1y
to the General Assemb1y by Uganda's Minister of State for
Foreign Affairson 23 March 1999:
"... because of Congolese internai political
contradictions, the rebellion of 2 August, 1998
broke out. President Kabila'simmediate reaction
was to look for foreign military assistance. This
was given by Zimbabwe, Angola and Namibia
which decided on a unilateral military
intervention instead of waiting for a regional
consensus on the matter as originally proposed
by President Museveni. The intervention was on
the pretext that. the DRC bad been invaded by
Uganda and Rwanda. As a matter of fact
Uganda then only had, inside DRC, two
battalions. Whereas Uganda was primarily
concerned about the activities of the Ugandan
rebel groups in the DRC, the intervention of
Zimbabwe, Angola, Namibia and later Chad and
Sudan, introduced a new dimension to the
conflict. Against the perceived threat of
212 increased destabilisation ofUganda especially by
Sudan using Congolese territory as they had
previously done, Uganda deployed additional
forcesto counter this threat.
The numerous times the Sudanese military has
made incursions into Uganda are weil
documented and known. These include aerial
bombardments and cross border military attacks.
Initially Sudan was using its own territory as the
launching pad for the attacks onganda. When
the government forces lost much of Southem
Sudan to the SPLM/SPLA, the Khartoum regime
increasingly started to use the DRCerritory."
365. These were the exceptional and very threatening
circumstances in which the Government ofUganda, in order to
defend its borders against numerically superior forces, was
forced to take action to gain controlthe strategie airfields and
river ports in northem and eastern Congo before the hostile
forces of the DRC and its allies, especially Sudan and Chad,
could occupy them. See above,Chapter N, paras. 52-54.
366. There cao be no question, in the circumstances,
that the activities of the Government of the DRC in
collaboration with the Government of Sudan and the anti
Uganda insurgents based in Congolese territory constituted an
"armed attack" against Uganda for purposes of applying Article
51. The required elements ofsuch an "armed attack," discussed
at paragraphs 341-357 of this chapter and summarised at
par3;graph358, are fully demonstrated in Chaptersrn and N of
this Counter-Memorial, especially at paragraphs 33-41, 47-50.
In particular:
The sending by a State of armed bands to the territory of
another State in conditions which, had the operation been
carried out by regular armed forces, it would have been
class(fied as an armed attack (rather than as a merefrontier
incident).Seepara. 358(a).
As set forth in Chaptersn and N, commencing in 1997
the Govemment of the DRC coordinated the military operations
213of the ADF against Uganda, through senior officers of the
Congolese anned forces (FAC) who planned and supported
cross-border attacks by the ADF in and against Uganda. See,
especially,paras. 33-41. Following the DRC's alliance with
Sudan and its more open collaboration with the anti-Uganda
insurgents, FAC officers coordinated and supported ADF
attacks on: Kichwamba Technical School (8 June 1998; more
than 100 Ugandan civilians killed), Kanyamura (10 June; five
civilians killed); Banyangule (26 June; 11 killed or wounded);
Kiburara (5July; 19 abducted); Kasese (1 August; three
killed); and many more, as described in paragraphs 40, 62 and
95-97. The planning, size, frequency and destructiveness of
these assaults against Ugandan territory and nationals
demonstrate that they were not mere "frontier incidents," but
full-fledged"anned attacks" within the meaning of Article 51.
367. The sponsoring of armed bands by a State by the
provision of logistical support in theform of weapons, training
or .financial assistance: in these circumstances, and in the
presence of a shared purpose, the armed bands become agents,
or 'defacto organs,'of the sponsoring State. See para. 358(b).
As set forthinChapters ID and IV, the ADF, WNBF
and other anti-Uganda insurgent groups regularly received
logistical support, weapons, training and financial assistance
directly from the Govemment of the DRC, and from the
Govemment of the DRC acting in collaboration with the
Govemment ofSudan. See, especially,paras. 34-36,47-50, 54.
The "shared purpose" of the Government of the DRC and the
anti-Uganda rebets (as weil as the Government of Sudan) was to
destabiliseUganda's government by means of anned attacks
and aerial bombardment from Congolese land and air bases.
Among other ways, "shared purpose" is established by the
planning and coordination bythe DRC's anned forces of ADF
attacks against Uganda and the incorporation into the FAC and
deployment against Ugandan government forces of thousands
ofWNBF combatants, as described in paragraphs 34-36, 47-50
and 54.
368. Theoperations of armed groups whichfrom part
of the command structure of the armed forces of the State
214concemed, whatever the nomenclature used to describe
individualunits. See para. 358 (c).
Approximately 7,000 WNBF troops were airlifted by the
Government of Sudan to points in the DRC, at the direction of
the Government of the DRC, and incorporated into the official
Congolese armed forces, where they fought alongside FAC
units and were subject to the comrnand and controlof FAC
officers, as described in paragraphs 47-50, 52 and 62-63. ADF
participation in the command structureof the Congolese armed
forces is demonstratedby the planning and coordination by
senior FAC officers of the ADF's attacks against Uganda. See
paras. 33-35.
369. In othercircumstancesin which there is evidence
of a conspiracy between the State concemed and the armed
bandsfighting against the State taking action in self-defence.
See para. 358(d).
Further evidence of a conspiracy between the
Government of the DRC and the anti-Uganda insurgents (in
addition to what has already been described in this paragraph) is
provided by the frequent consultations and coordination in
Kinshasa between President Laurent Kabila and the leaders of
the ADF (YusufKabanda) and the WNBF (Taban Amin) about
military strategy and operations againstganda, as described in
paragraphs 35 and 36.
370. Any legal assessment of the situation should, it is
respectfully submitted, reflect the positions adopted by the
States of the region. It is a striking fact that, from September
1998 onwards, the States of the region recognised that Uganda
had legitimate security concems relating to the endemie civil
strife in the DRC. See above, Chapter XVI, paras. 297-306.
Moreover, in the Sirte Agreement concluded on 18 April 1999
the ORC recognised the security concems of Uganda. See
above, Chapter XVI, paras. 307-310.
371. This process of multilateral recognition of
Uganda's security concems was confirmed and codified in the
Lusaka Ceasefire Agreement of 10 July 1999. See above
Chapter VI paras. 65-77; and Chapter XVI, paras. 313-320. As
215the Government of Uganda has pointed out already, the
Agreement constitutes a comprehensive system of public order,
forming a transition regime intended to restore international
peace and security in the region. The Agreement produced a
regime of graduated, conditional and reciprocal obligations of
redeployment and withdrawal. lt recognised that the presence
of Ugandan troops in the DRC was a response to the presence
there of anti-Uganda insurgents, as weil as other foreign forces;
and it mandated the prior disarmament and demobilisation of
the insurgents, and the simultaneous withdrawal of the other
foreign forces, as necessary eonditions for the withdrawal of
Uganda's forces. In this manner, the Lusaka Ceasefire
Agreement recognised the legitimacy ofboth Uganda's security
concems and the presence of Ugandan Forces in the DRC as a
proportionate exercise of its right to self-defence in response to
those concems.
216 CHAPTER XVIII
THE STATE RESPONSIBILITY OF THE DRC AND
THE
COUNTER-CLAIMS OF THE REPUBLIC OF
UGANDA
A. The State Responsibility Of The DRC
372. In Chapter XVII the relations between Uganda
and the DRC were examined in the context of Article 51 of the
Charter and the concept of an anned attack. In this connection
the more general question of the State responsibility of the DRC
for its sponsorship of anti-Uganda anned groups was left on one
side.
373. The practical purpose of the present chapter of
the Counter-Memorial is to indicate the counter-claims of the
Republic of Uganda, but first of all it is necessary to recall the
background. The Republic ofUganda has for more than seven
years been the victim of the military operations and other
destabilising activities of hostile anned groups either sponsored
or tolerated by successive Congolese govemments.
374. The details ofthese activities have been set forth
in Chapters I to VI above. As the Court will recognise, having a
neighbour with the characteristics exhibited by the DRC in
recent times presents awesome problems. The response of the
Govemment ofUganda included the following policy options:
First: a display of patience combined with vigilance
in protecting the boundary with the DRC.
Second: military co-operation with the DRC in matters
of border security, when this was politically possible.
Third: resort to a regional peace process in the period
September 1998 onwards. The Lusaka Ceasefire Agreement
was the culmination of this process.
217 Fourth: resort to proportionate measures of self
defence.
375. In the conditions prevailing in the DRC in 1998
and 1999, President Museveni was convinced that the most
appropriate solution involved multilateral diplomacy and
internai dialogue in the DRC. This approach was in fact
approved by other interested parties and is embodied in the
regime created by the Lusaka Ceasefire Agreement. The
Republic of Uganda considers that this approach remains the
only viable and realistic approach to the problemsf the region.
376. Under these circumstances, the Republic of
Uganda did not consider that it would be helpful to have
recourse to the Court, in spite of the unlawful activities of
successive Congolese governments. However, now that the
DRC has introduced proceedings, Uganda must take appropriate
steps to ensure that justice is done, and that the responsibility
generated by Congolese policies is recognised.
B. The Avaüability Of Counter-Ciaims
377. Article 80. of the Rules of Court provides as
follows:
"1. A counter-claim may be presented provided
that it is directly connected with the subject
matter of the claim of the other party and that it
cornes within the jurisdiction of the Court.
2. A counter-claim shaH be made in the
Counter-Memorial of the party presenting it, and
shall appear as part of the submissions of that
party.
3. In the event of doubt as to the connection
between the question presented by way of
counter-claim and the subject-matter of the claim
of the other party the Court shall, after hearing
the parties, decide whether or not the question
thus presented shall be joined to the original
proceedings."
218 378. In accordance with the provisions of Article 80,
the Republic ofUganda presents the following Counter-claims.
C. TheCounter-Ciaims
379. In the first place, the Govemment of Uganda
relies upon various principles of customary or general
internationallaw. Thus the Court is asked to adjudge and
declare that the Democratie Republic of the Congo is
responsible for the following breachesof its obligations under
customaryor generalinternational law.
(a)The obligation not to use force against
Uganda.
380. Through its alliances with armed insurgents
based in eastern Congo and with the Govemment of Sudan, the
Democratie Republic of Congo has, either directly or indirect!y,
carried out devastating cross-border attacks against Uganda and
conducted aerial bombardments ofUgandan towns and villages.
Sorneofthese attacks are described in paragraphs 19-22,34-35,
40, 54 and 95-96, above. By late August 1998, the Congolese
and Sudanese govemments were engaged in full-blown military
operations againstUganda. Through its role in these attacks,
the Congolese govemment has violated its obligation not to use
force againstUganda.
(b)The obligation not to intervene in the internai
affairsofUganda.
381. The cross-border attacks and aerial
bombardments carried out by the Congolese govemment were
intended to destabiliseganda, to change its govemment and to
influence its foreign and domestic policies, as described in
paragraphs 14, 17-18 and 34, above. The anti-Uganda rebels
supported by the Govemment of the DRC, and incorporated .
into its command structure, proclaimed that their intent was to
overthrow the Govemment of Uganda by force of arms. See
paragraphs 14 and 54. Through its role and sponsorship of
these attacks, the DemocratieRepublic of Congo has intervened
in the internai affairsofUganda.
219 (c)The obligation not to provide assistance to
armed groups carrying out military or
paramilitary activities in and againstanda
by training. arming. equipping. financing and
supplyingsuch armed groups.
382. Since at least 1994, the Democratie Republic of
Congo has harbored and assisted armed groups staging major
assaultsinand againstUganda.
383. In the months following the Rwandan civil war,
President Mobutu permitted the ex-FAR and Interahamwe to
use the refugee camps in eastern Congo as bases to .conduct
military training activities and stockpile arms. Together with
his ex-FAR and Interahamweallies, PresidentMobutu provided
anti-Uganda insurgents with arms, ammunition, training and
logistical support, coordinated their military activities and
launched joint operations againstUganda. President Mobutu
a1so cultivated a military alliance with the Government of
Sudan, pursuant to which the Sudanese army occupied airfields
in northeastern Congo for the purpose of delivering arms,
supplies and troops to theanti-Uganda rebels. Congolese and
Sudanese military officers also supervised combined military
training exercises for ex-FAR, lnterahamwe and anti-Uganda
insurgents in Garamba Park, in northeastern Congo. See,
especially, paras. 15-21,above.
384. AB described in paragraphs 33-39 and 47-51,
with the exception of a brief period after he took power in
Congo, President Laurent Kabila renewed his predecessor's
alliances with the anti-Uganda insurgents, the ex-FAR and
lnterahamwe,and the Government of Sudan. Under the Kabila
regime, F AC o:fficers and their Sudanese counterparts
·coordinated recruitment, training, weapons, supplies and
military operations for the ADF, the WNBF and other anti
Uganda insurgents. Many of these insurgents were ultimately
incorporatedinto the FAC.
385. In the second place, the Governmentof Uganda
relies upon Article 2, paragraph 4 of the United Nations
Charter,whichprovides that:
220 "Ail members shall refrain in their international
relations from the threat or use force against
the territorial integrity or political independence
of any State, or in any other manner inconsistent
with the Purposesf the United Nations."
386. Article 2, paragraph 4, is relied upon to support,
in the alternative, the three obligationsof customary law
invoked in paragraphs379-384 above.
D. SpecifieExamples Of CongoleseAggression
387. The cross-border attacks on Uganda carried out
under the command and control of the Congolese govemment
have threatened the security of Uganda and its citizens for the
past seven years.Sorne of the most brutal of these attacks are
described belowby way of illustration. A more comprehensive
account of the cross-border attacks against Uganda by the DRC,
acting in concert with anti-Uganda insurgents and the
Government of Sudan, is provided in paragraphs 19-22, 34-35,
40, 54 and 95-96, above.
The Attack on the Mpondwe Customs Post and Nearby Towns
388. On 13 November 1996, more than 800 heavily
armed ADF insurgents, under the command and control of the
Congolese and Sudanese govemments, launched a massive
assault on the Ugandan customs post at Mpondwe and the
towns ofBwera, Kasinga and Karambi in western Uganda. The
rebels who participated in the attack were transportedFAZ
[Zairian army] troops in FAZ vehicles from various camps in
eastern Congo. The arms and ammunition used by the rebels,
tncluding "more than 1500 AK 47,20 12.7 mm AAC, GPMGs,
:f.U>Gs6,0/82 mm morters and a lot of assorted ammo," were
:~>rov bidthedCongolese and Sudanese governments. The
attack killed more than people, most ofwhom were civilians.
See para. 22, above.
The Attack on Kichwamba Technical School
389. On 8 June 1998, more than 100 ADF insurgents,
armed and directed by the DRC and Sudan, carried out a deadly
221assault on innocent students at Kichwamba Technical School in
the Kasese District.of western Uganda. At the behest of the
Congolese govemment, the ADF rebels crossed into Uganda
and sequestered scores of students into their dormitories, which
were dowsedwith petrol and set on fire. Morethan50 students
burned to death, at least that many were shot and killed trying to
escape, and approximately 100 more were abducted by their
attackers.See para. 40 above andUCM Annex 82.
The Attackon Kasese
390. On 1 August 1998, the ADF, backed by the
Congolese Armed Forces, carried out a major attack on Kasese,
a regional center in western Uganda where a strategically
important airfield is situated; eight people were killed. 6
August 1998,the ADF launched a similar attack on the nearby
town ofKyarumba and killed 33 people.
The Attack at BwindiNationalPark
391. On 1 March 1999, at least 130 ex-FAR and
Interahamwe génocidaires armed with assault rifles, and
operating within the command structure of the FAC, attacked
campsites in Bwindi National Park at Buhoma, abducted 14
foreign tourists and a Ugandan game warden, looted persona!
property andbumed three buildings. (UCMAnnex 39).
392. The Interahamwe attackers divided their
hostages into two groupsof five and nine. The entire group of
five was killed about four kilometers from the parOn one of
the bodies, the attackers left a note stating: "Here lies the
Anglosaxons who betrayed us, favouring the Nilotics [a
reference to the Tutsis] to the detriment of the Bantu
cultivators/farmers [a reference to theutus]." Three of the
nine hostages in the other group were also killed; another note
attached to oneof their bodies stated: ''Thisis the punishment
of the Anglosaxons who sold us. You protect the minority and
you oppress themajority." (UCMAnnexes39 and 40).
393. The remaining six hostages were forced to cross
into the DRC (located 15 kilometers west Qfthe park) and then
released. The attackers gave oneof the hostages a letter to the
222U.S. Embassy, which indicated that the attack was targeted
against American and British nationals because their
govemments had "supported the Tutsi minority in Rwanda in
oppressing and massacring the Hutus without constraint.., The
letter was signed by the Liberation Armyof Rwanda, the name
adopted by the former ex-FAR and Interahamwe following the
1994Rwandangenocide. (UCMAnnex 40).
The Attack at Fort Portal
394. On 9 December 1999, approximately 50 ADF
insurgents attacked Katojo Govemment Prison in Fort Portal,
Uganda, killed a UPDF soldier and civilian, and abducted 360
inmates. (UCM Annex 53; UCM Annex 54, para. 34). The
ADF provided at least 60 of them with military training and
deployedthem to fight againstUganda. (UCM Annex 55).
395. These and other attacks by anti-Uganda
insurgents have wreaked havoc on Ugandan society and
ravaged the Ugandan economy. According to a 1999 report by
the U.S. CommitteeforRefugees:
"The LRA and other rebets in the north,
including the West Nile Bank Front, have killed
5,000 to 10,000 civilians during the 1990's,
according to local estimates. ADF rebets have
reportedly killed nearly,000 people since 1996
in the southwest.
Insurgents regularly have abducted children,
torturedand mutilated civilian victims, pillaged
local villages, and planted landmines along roads
and footpaths....(UCM Annex 67, p. 125).
396. By training, arming, equipping, financing and
supplying the ADF and other anti-Uganda insurgents, the
Govemment of Congo has helped their efforts to destabilise
Uganda.
223E. The Attack On The Ugandan Embassy And The
lnhumane Treatment Of Ugandan Diplomatie
Personnel And Other Ugandan Nationals
397. Between August and December 1998, the
Democratie Republic of Congo launched three separate attacks
on the Ugandan Embassy in Kinshasa, confiscated over
US $6,319,060.00 worth of property belonging to the
Government ofUganda and Ugandan diplomatie personnel, and
subjected Ugandan diplomatie personnel and other Ugandan
nationals to inhumane treatment.
398. On or around 11 August 1998, FAC troops
stormed the Ugandan Chancery. They threatened the Ugandan
Ambassador and another diplomat at gunpoint, demanding the
releaseof certain Rwandan nationals. They also stole money
found in the Chancery. Despite protests by Ugandan Embassy
officiais, the Congolesegov~ent took no action. (UCM
Annex 33 and 89).
399. Prior to their evacuation from Congoon August
20, 1998, seventeen Ugandan nationals and Ugandan diplomatie
personnel were detained for more than three hours, brutally
beaten, insulted and spat upony FAC troops stationed at Ndjili
International Airport. Before releasing theandans, the FAC
troops confiscated their money, valuables and briefcases. The
details are set forth the following protest letter from Uganda,
dated 21 August 1998:
''The Embassy of the Republic of Uganda
presents its compliments to the Ministry of
Foreign Affairs of the Democratie Republic of
Congo and has the honour to strongly protest to
the lattern the following inhuman treatment of
Uganda diplomates and nationals at Ndjili
International Airportn August 20, 1998.
During the evacuation of seventeen Ugandans
accompanied by Uganda diplomates and a
Congolese Protocol Offi.cerfrom the Ministryof
Foreign Affairs, sorne elements of Congolese
Armed Forces stationed at the Airport detained
224 and inhumainlymistreated the Ugandans and the
protocol officer for over three hours. Inspitef
explanation by the Protocol Officer that the
evacuation was authorised by the competent
authority, the soldiers refused to allow the
smooth evacuation. Instead, they brutally beat,
insulted and spat on theUganda and Congolese
Protocol Officerfor the duration of the detention.
Before the soldiers reluctantly allowed the
evacuationto take place,they forcefully removed
money, other valuables such as necklaces,
watches and in sorne cases brief cases from the
Ugandans. Accordingly, the Embassy feared to
continue with the evacuation until adequate
securitymeasuresare provided for the exercice.
In this connection, the Embassy wishes to
requestthe Ministry, as it did initially in its letter
of request for evacuationto the Minister of State
for Internai Mfairs which was copied to the
Ministry among others, for appropriate security
to enable the completion of the evacuation
exercice. The Embassy will appreciate if the
above request is urgently considered and it is
informed of the outcomeas soon aspossible.
The Embassy of the Republic of Uganda avails
itselff this opportunityto renew to the Ministry
of ForeignAffairs ofthe Democratie Republic of
Congo the assurance of its highest
considerations." (UCM Annex 23).
400. In September 1998, following the evacuation of
remaining Ugandan diplomatie personnel from Congo, FAC
troops broke into and entered the Ugandan Chancery and the
Uganda Embassy Official Residence in Kinshasa. The troops
stole property, including four Embassy vehicles. (UCM
Annexes 33 and 89).
225 401. On 23 November 1998, FAC troops again
forcibly entered the Ugandan Chancery and the Uganda
Embassy Official Residence and stole property, including
Embassy fumiture, household and persona! effects of the
Ambassador and other Ugandan diplomatie staff, Embassy
office equipment,Ugandan flags and four vehicles belonging to
Ugandan nationals. The FAC occupied the Ugandan Embassy
Official Residence and Chancery. The Congolese government
subsequently permitted WNBF commander Taban Amin, the
son of former Ugandan dictator Idi Amin, to occupy the
premises of the Uganda Embassy in Kinshasa and establish his
official headquarters and residence at those facilities. (UCM
Annexes 23, 87 and92).
402. On 18 December 1998 the Uganda government
sent a protest to the Ministryf Foreign Affairs of the DRC
which includedthe followingpassages:
"4. The Ministry protests in the strongest
terms possible the above actions wbich are in
contravention of International Law and the
Vienna Conventions on the inviolability of
diplomatiepremises.
5. The government of the Democratie
Republic of Congo need not be reminded of its
obligations under international law and the
relevant provisions in the Vienna Conventions
regarding the Sanctityof diplomatie premises,
property and personnel. On its part and despite
the current relations between the two countries,
Uganda governmentbas held onto its obligations
under international law and bas not interfered
with the Embassy of the Democratie Republic of
Congo in Kampala. Uganda government expects
this gestureto be reciprocated the govemment
of the DemocratieRepublic of Congo.
6. Therefore - the govemment of the
Republic ofUganda holds the government of the
Democratie Republic of Congo responsible for
226 the violations meted on its diplomatie premises
and properties in Kinshasa and demands as
follows:
(i) The immediatereturn of ali properties taken away from
the Embassy Official Residence and Chancery;
(ii) The immediate vacation of the two premises by the
MilitaryPersonnel of the Democratie Republic of
Congo.
(iii) Allowing the Caretakers back to look after the premises
and the properties therein, according to the instructions
given to them;
(iv) The governmentof the Democratie Republic of Congo
is under obligation, under International Law and the
Vienna Convention to protect the two premises from any
furtherintrusions." (UCM Annex 33).
403. There bas been no response from the
Government of the DRC and the Embassy Official Residence
and Chancery remain unlawfully occupied. The status of the
premises as the premises of the mission remains unchanged.
404. On 21 March 2001, the Ministry of Foreign
AffairsofUganda sent the following Note to the DRC:
"The Ministry of Foreign Affairs of the Republic
of Uganda presents its compliments to the
Embassy of the Democratie Republic of Congo
accredited to Uganda and bas the honour to refer
to a meeting which took place between the
Permanent Secretary, Mr. Ralph W. Ochan, and
the Charge d'Mfaires, Ms. Isabelle lboula on 20
March, 2001.
The Ministry wishes to reiterate a verbale request
made by the Permanent Secretary that the
distinguished Govemment of the Democratie
Republic of Congo asks Mr. Taban, son of ldi
Amin Dada, to vacate the Uganda Embassy's
227 premises (Chancery and Official Residence) he
bas been occupying in Kinshasa. The Uganda
Government bas no arrangement for Mr. Taban
to occupythose premises.
The Ministry further wishes to state that the
Uganda Government would rather have an agent
of the Government of the Democratie Republic
of Congo occupy the Embassy's premises than
Mr. Taban, who is a dissident." (UCM Annex
87).
405. The inhumane treatment and threats to the
security and freedom of nationals of Uganda, detailed in
paragraphs 397 to 399 above, constitute a series of breaches of
the international minimumstandardrelating to the treatment of
foreign nationals lawfully on State territory, which standard
forms a part of customary or general international law.
406. The confiscations of privately owned cars and
other items of property belonging to Ugandan nationals also
constitute breaches of the internationalminimum standard.
407. The inhumane treatment described in paragraphs
397 to 399 above also, and in the alternative, constitutes
breaches of the standard of general international law based upon
universally recognised standardsofhuman rights concerningthe
securityof the human person and the peaceful possession, use
and enjoymentofproperty.
408. In respect of the seizure of the Embassy of the
Republic ofUganda, the Official Residence of the Ambassador,
and official cars of the mission, these actions constitute an
unlawful expropriation of the public property of the Republic of
Uganda. The absence of any provision of compensation
constitutes an additional element of illegality.
F. The DRC's Violations Of lts Obligations Under The
Lusaka Agreement
409. Notwithstanding the Congolese government's
repeated verbal pronouncements affirming its commitment to
228the Lusaka Agreement, the DRC bas consistently violated its
obligations thereunder. During the presidency of Laurent
Kabila, the Congolese government prevented the Congolese
national dialogue called for by the Agreement by refusing to
cooperatewith the neutral facilitatorappointed by the, Sir
Ketumile Masire. As reported by the Secretary-General on 21
September2000:
"[t]he Government of the Democratie Republic
of the Congo bas continued to reject the neutra}
facilitator of the inter-Congolese dialogue, Sir
Ketumile Masire. After withdrawing its
confidence from Sir Ketumile and requesting
OAU to propose a new facilitator, the
Governmenttemporarily sealed off his Kinshasa
office on20 June. Inan attempt to overcomethe
impasse, President Bouteflikaof Algeria, in his
capacityas Chairman of OAU, tried in vain to
organise a mini-summit in Algiers on 4 July.
Likewise, the absence of sorne dignitaries,
including President Kabila, at the thirty-sixth
ordinarysession of the OAU Assembly of Heads
of State and Government,held in Loméfrom 10
to 12July, frustratedefforts to address this issue
at the highest level. The summit adopted a
decision urging the Congolese parties, and
particularly the Government of the Democratie
Republic of Congo, to extend full cooperation to
the neutral facilitator. However, at subsequent
meetings the Government of the Democratie
Republic of Congo indicated that it was not
ready to modify its position regarding the
facilitator." (UCM Annex 74, para. 18).
410. The Democratie Republic of Congo also
impeded the deployment of the UN Observer Mission to the
Congo (MONUC) in government-controlled territory. In a
communique issued following a Summit on 14 August 2000,
the parties to the Lusaka Agreement and SADC countries
''recalled the guarantees that the signatories to the Lusaka
Agreementbad given on 23 February 2000 to ensure the safety,
229protection and freedom of movement of United Nations
personnel, and appealed to the Govemment of the Democratie
Republic of Congo to cooperate fully with MONUC and to
satisfy the conditions necessary for deployment." (UCM Annex
74, para. 6).
411. Moreover, the Congolese govemment has failed
to carry out its obligations regarding the disarmament and
demobilisation of the armed groups on its territory, including
the anti-Uganda insurgents, which is an express precondition for
the withdrawal of foreign troops under the Lusaka Agreement.
In a Press Statement issued on 20 October 1998, the U.S.
Department of State explicitly condemned the Congolese
govemment's efforts to recruit and trainthese groups. (UCM
Annex 29).
412. The above-referenced breaches of the Lusaka
Agreement have prolonged the conflict in the DRC. By
preventing the Congolese national dialogue, the DRC has
precluded a resolution of the internai Congolese conflict. By
impeding the deployment ofMONUC and thereby hindering the
disengagement of foreign troops, the DRC has exacerbated the
externat conflict between the DRC and neighbouring countries,
including Uganda. By failing to cooperate in the disarmament
and demobilisation of armed groups on its territory, the DRC
has permitted the continuationf armed attacks against Uganda,
as a result ofwhich Uganda continues to suffer grievous injury.
230 SUBMISSIONS
Reservingits right to supplementor amend its requests,
the RepublicofUganda requests the Court:
(1)To adjudge and declare in accordance with
internationallaw
(A) That the requests of the Democratie
Republic of Congo relating to activities or situations
involving the Republic of Rwanda or its agents are
inadmissible for the reasons set forth in Chapterof
the present Counter-Memorial;
(B) That the requests of the Democratie
Republic of Congo that the Court adjudge that the
Republic of Uganda is responsible for various breaches
of international law, as alleged in the Application
and/or the Memorial of the Democratie Republic of
Congo,arerejected; and
(C) That the Counter-claims presented in
Chapter XVIII of the present Counter-Memorial be
upheld.
(2) To reserve the issue of reparation in relation to the
Counter-claims for a subsequent stage of the
proceedings.
21 April 2001
HonourableBart M. Katureebe
Attorney General
Republic ofUganda
(signed)
Agent of the Republic of Uganda
231 PERSONALIA AND ABBREVIATIONS
AFDL Alliancedes Forces
Démocratiquespourla Liberation
du Congo-Zaïre. Laurent
Kabila'srebelorganisationin the
waragainstthe governmentof
PresidentMobutuSseseSeko,
andhispoliticalorganisation
after hgainedpowerin the
DRC.
ADF AlliedDemocratieForces. Anti
Ugandainsurgentgroupbasedin
Congo,supportedby the
Governmentofthe DRCandthe
Government of Sudan. Oneof
the"armedgroups"in Congoto
be disarmedanddemobilised
underthe termsofthe Lusaka
CeasefireAgreement
Amin, Idi FormerUgandandictator,linked
tovariousanti-Ugandainsurgent
groupsbased intheDRC and
Sudan. Currentlylivesin exilein
SaudiArabia.
Amin,Taban Sonof formerUgandan dictator
IdiAmin. A Commanderof the
WestNileBankFront(WNBF)
anti-Ugandainsurgentgroup.
ANC ArméeNationale du Congo. The
army of theDRCunderPresident
LaurentKabila.Laterrenamed
ForcesArméesdu Congo.
(FAC).
Banyamulenge CongoleseTutsisnativeto South
KivuProvince.
Bashir,Omar Presidentof Sudan.
232Bemba,Jean-Pierre Leaderof the Mouvementpourla
Liberationdu Congo(MLC),a
Congoleserebel organisation
basedin EquateurProvidence.
Took up armsagainstthe
governmentofPresident Laurent
Kabila in August1998.
Butime,Tom UgandaMinisterof Internai
Affairs.SignedtheApril1998
ProtocolbetweentheDRCand
UgandaformalisingtheDRC
Government'sinvitationto
Ugandato stationtroopsin
easternCongoto combatanti
Ugandainsurgents.
Chiluba,Frederick Presidentf Zambia,whoplayed
a key rolein facilitatingthe
LusakaCeasefireAgreement
signedat Lusaka,Zambiaon 10
July 1999.
DDRR Disarmament,Demobilization,
ResettlementandReintegration
of"armed groups"in Congo,
requiredby the termsof the
LusakaCeasefireAgreement.
Ebamba,Col.Mathias Congolesearmycommander in
chargeof Congoleseforcesin
easternCongounderPresident
Mobutu, andagainunder
PresidentLaurentKabila.
SupervisedCongolese armed
forces'collaborationwiththe
ADFanti-Ugandainsurgent
groupin militaryactionsagainst
Uganda.
FAC ForcesArméesCongolaises. The
armyof theDRCunder
PresidentsLaurentKabilaand
JosephKabila.
233FAR Forces Arméesde Rwanda.
Rwandan anned forces under the
govemment ofPresident Juvenal
Habyarimana, who carried out
genocide against the Rwandan
Tutsi population. Following their
defeatby the Rwandan Patriotic
Front (RPF) in 1994, ex-FAR
members were organised in
Congo to fight Congolese Tutsis
and recapture the Government of
Rwanda. In 1998, theywere
incorporated by President
Laurent Kabila into the Forces
Arméesdu Congo (FAC) to fight
againstUganda and Rwanda.
Forces ArméesZaïroises. The
FAZ
army of the Government of Zaïre
under President Mobutu Ssese
Seko.
FUNA Former Uganda National Army.
Anti-Uganda insurgent group
composed of former soldiers of
dictator ldi Amin. Organised by
the Government of Sudan in
Congolese territory with the
consentof the Congolese
government. Later incorporated
into the Forces Arméesdu
Congo. (FAC). One ofthe
"anned groups" in Congo to be
disanned and demobilised
pursuant to the terms of the
Lusaka Ceasefire Agreement.
Habyarimana, Juvenal PresidentofRwanda, and ally of
President Mobutu Ssese Seko of
Zaïre. Died in plane crash in
April1994.
234Interahamwe Rwandan Hutu militias that,
together with the Forces Armées
de Rwanda (FAR), carried out the
genocide ofRwanda's Tutsi
population in 1994. Afterwards,
they fied to Congo and
reorganised to fight Congolese
Tutsis and the new Government
of Rwanda. In 1998, they were
incorporated into the Forces
Arméesdu Congo (FAC) by
President Laurent Kabila to fight
against Uganda and Rwanda.
JMC Joint Military Commission.
Created by the Lusaka Ceasefire
Agreement to implement certain
of its key provisions. lncludes
two officers from each of the
States signatoriesofthe
Agreement.
Kabarebe, Brig. James Rwandan army Brigadier,
formerly Colonel, whom
President Laurent Kabila
appointed as his Army Chief of
Staff in 1997, a position he held
until July 1998. Previously
served as leaderof the Rwandan
Patriotic Army (RPA) forces that
helped defeat President Mobutu
and install President Kabila in
power.
Kabeba, Hajji Anti-Uganda insurgent leader
who coordinated military
activities againstganda with the
Congolese government and with
former members of the Forces
Arméesde Rwanda (ex-FAR)
and Interahamwe.
235K.abila,Joseph President of the DRC since
January 2001. Son of Laurent
Kabila. Formerly Major General
in theFAC.
Kabila, Laurent President of the DRC from May
1997 until his assassination in
January 2001. Politicalleader of
the rebellion that overthrew the
government of President Mobutu
Ssese Seko in May 1997.
Kagame, Paul President of Rwanda. Formerly,
Vice President, Minister of
Defence and Major General of
the Rwandan Patriotic Arm.y.
(RPA).
K.akudji,Gaetan Minister of the Interior of the
DRC. Signed the April 1998
Protocol between DRC and
Uganda formalising the DRC
Government's invitation to
Uganda to station troops in
eastern Congo to combat anti
Uganda insurgents.
K.ategaya,Eriya Minister of Foreign Affairs of
Uganda.
Kony, Joseph Leader of the Lord's Resistance
Army(LRA) anti-Uganda
insurgent group.
LRA Lord's Resistance Army. Anti
Uganda insurgent group
organised by Sudan and based in
Sudan and Congo. Infamous for
its practicef committing
atrocities against Ugandan
civilians. One of the "armed
groups" in Congo to be disarmed
and demobilised under the terms
of the Lusaka Ceasefire
Agreement.
236Mai Mai Traditional tribal militias in
eastern Congo. Initially opposed
to President Kabila, they were
eventually brought into alliance
with his forces fighting against
Congolese Tutsis and Uganda.
Masire, Sir Ketumile Former President of Botswana.
Appointed Neutral Facilitatorf
the inter-Congolese dialogue
pursuant to the tennsof the
Lusaka Ceasefire Agreement.
Mbabazi, Amama Uganda's Minister ofState for
Foreign Affairs.
MONUG United Nations Observer Mission
in the DRC. Created by the
Security Council in August 1999
to help implement and monitor
compliance with the Lusaka
Ceasefire Agreement.
MLC Mouvement pour la Liberation du
Congo. Congolese rebel group
based in Equateur Providence,
and headed by Jean-Pierre
Bemba. Took up anns against
the govemment of Laurent Kabila
in August 1998.
Mugabe, Robert Presidentof Zimbabwe.
Museveni, Yoweri Presidentof Uganda.
237NALU NationalArmyforthe Liberation
ofUganda Anti-Uganda
insurgentgrouporganisedin
Congoleseterritorywiththe
consentofthe Congolese
governmentandsupportedby the
Governmentof Sudan. Mostof
its structureandmembership
wereeventuallyincorporatedinto
the AlliedDemocratieForces
(ADF),anotheranti-Uganda
insurgentgroup. NALUand
ADFare "armedgroups"to be
disarmedanddemobilised
pursuantto the termsofthe
LusakaCeasefireAgreement.
Oris,Col.Juma A Commander ofthe WestNile
BankFront(WNBF)anti-Uganda
insurgentgroup. Former
Ministerof Informationin the
government of IdAmin.
RCD-ML RassemblementCongolaispour
laDémocratiea, Congoleserebel
organisation basedin Goma,that
tookup armsagainstthe
governmentof LaurentKabilain
August1998.
RCD RassemblementCongolaispour
laDémocratie-Mouvemenptour
la Liberation.ongoleserebel
organisationbasedin Kisangani,
that splitoffomthe
Rassemblementpour la
Démocratie(RCD).
RPA RwandanPatrioticArmy. The
armyof Rwandasince 1994.
238RPF Rwandan Patriotic Front.
Rwandan rebel organisation that
defeated the armed forces of the
government of President Juvenal
Habyarimana in 1994 and
established a new government in
Rwanda.
SADC Southern African Development
Community.
Seko, Mobutu Ssese PresidentofZaire (now the DRC)
from 1965-1997. Swept from
power in the war led by Laurent
Kabila.
Taha, Ali Othman Vice President of Sudan.
UPDF Uganda People's Defence Forces.
The army ofUganda.
UNRFIT Uganda National Rescue Front IT.
Anti-Uganda Insurgent group
organised in Congo by the
Government ofSudan with the
consent of the Congolese
government. One of the "armed
groups" inCongo to be disarmed
and demobilised pursuant to the
terms ofthe Lusaka Ceasefire
Agreement.
239 WestNileBankFront. Anti
WNBF
Ugandainsurgentgroup
organisedbythe Government of
Sudan. Initially,consistedof
formermembersof armedforces
ofldi Amin. Grewto 7,000
members. Transportedby Sudan
to Congoin 1998,wherethey
wereincorporatedinto theForces
Arméesdu Congo (FAC)and
sentintobattle againstandan
govemmentforcesin eastern
Congo,andagainstCongolese
rebelandRwandangovernment
armedforcesinotherparts of the
DRC. Oneofthe"armed
groups"in Congoto be disarmed
anddemobilisedpursuantto the
tennsof the LusakaCeasefire
Agreement.
240 INDEX OF ANNEXES
IN CHRONOLOGICAL ORDER
VOLUME fi
17 Sept. 1990 Report on Uganda/Zaire Matters of Security
Annex 1:· Concem to Uganda presented by Arnama
Mbabazi, then Director General of the
President's Office, to the Administrator
General, National Documentation Agency,
Zaïre, 17 September 1990 (obtained from
Chieftaincyof MilitaryIntelligence)
19 Aug. 1995 Minutes from Meeting of"Elders" of the West
Annex 2: Nile Bank Front Military High Command, 19
August 1995 (obtained from Chieftaincy of
Military Intelligence) ·
31 Aug. 1995 Report of the Ugandan Delegation to the 2"d
Annex3: Regional Border Meeting Between the
Districts of Kisoro, Kasese, Rukungiri,
Bundibugyo, Bushenyi and North-Kivu
Province (Zaïre)28 - 31 August 95 Held at
Mbarara (obtained from Chieftaincy of
Military Intelligence)
23 Mar. 1996 Letter From West Nile Bank Front Military
Annex 4: High Command to Major Motindo, Imbokolo,
Zaïre, 23 March 1996 (obtained from
Chieftaincyof MilitaryIntelligence)
24 Apr. 1996 Report Regarding Enemy Attack on Kisoro
Annex 5: ·. Detachment, 24 April 1996 (obtained from
Chieftaincyof MilitaryIntelligence)
24110 June 1996 Situational Report from Resident District
Annex6: Commissioner/K.isoro on Activities of Hajji
Muham:medKabeba's Group in Zaïre, 10 June
1996 (obtained from Chieftaincy of Military
Intelligence)
15 June 1996 Operational Report Covering Period from 22
Annex 7: April 1996 Up to Date, 15 June 1996
(obtained from Chieftaincy of Military
Intelligence)
July 1996 Human Rights Watch/Africa, Zaïre:Forcedto
Annex 8: Flee, Violence Against the Tutsis in Zaïre,
Vol. 8, No. 2(A},July 1996
16 Sept. 1996 United Nations Economie and Social Council,
Annex 9: Report on the situation of human rights in
Zaïre, preparedby the Special Rapporteur, Mr.
Robert Garret6n, in accordance with
Commission resolution 1996177,
E/CN.4/1997/6/Add.l, 16 September 1996
20 Sept. 1996 Combat Analysis Report on WNBF in West
Annex 10: Nile, 20 September 1996 (obtained from
Chieftaincy ofMilitary Intelligence)
15 Oct. 1996 Minutes of District Security Situation Review
Annex 11: Meeting Held at Bunagana on 15 October,
1996 (obtained from Chieftaincy of Military
Intelligence)
2 July 1997 Report Regarding Threat Assessment in South
Annex 12: Westem Districts Kisoro, Kabale and
Rukungiri, 2 July 1997 (obtained from
ChieftaincyofMilitary Intelligence)
13 Sept. 1997 Monthly Report for the Monthof August 1997
Annex 13: Regarding General Security Situation in the
Area of Mbarara, 13 September 1997
(obtained from Chieftaincy of Military
Intelligence)
242Oct. 1997 Human Rights Watch/Africa, The Democratie
Annex 14: Republic of the Congo: What Kabi/a is
Biding, Vol. 9, No. S(A),October 1997
Jan. 1998 Human Rights Watch, World Report 1998:
Annex 15: The Children'sRightsProject,January 1998
1998 Training Agreement between the Govemment
Annex 16: of the Republic of Uganda and the
Govemment of the Democratie Republic of
Congo for the Trainingin Public Order for the
Policeof the DemocratieRepublicof Congo
6 Feb. 1998 Report Regarding Security/Military Situation
Annex 17: in Eastern Congo (27 January - 4 February
1998), 6 February 1998 (obtained from
Chie:ftaincyofMilitary Intelligence)
13 Feb. 1998 Situational Report, 13 February 1998
Annex 18: (obtained from Chie:ftaincy of Military
Intelligence)
27 Apr. 1998 Protocol dated 27 April 1998 Between the
Annex 19: Democratie Republic of Congo and Republic
of Uganda on Security Along the Common
Border
27 June 1998 Report of Interrogation of Captured ADF
Annex 20: Rebel Fred Tukore, 27 June 1998 (obtained
fromChieftaincyofMilitary Intelligence)
9 Aug. 1998 Statement by H.E. Yoweri Kaguta Museveni,
Annex 21: Presidentof the Republic of Uganda, on
Background to the Situation in the Great
LakesRegion,9 August 1998
13 Aug. 1998 Human Rights Watch Press Release, "HRW
Annex 22: Alarmed About Radio Broadcasts and the
Incitementof Ethnie Violence in the DRC,"
13August 1998
24321 Aug. 1998 Letter dated 21 August 1998 from the
Annex23: Embassy of the Republic of Uganda to the
Ministry of Foreign Affairs of the Democratie
Republic of Congo
23 Aug. 1998 Communique of the Summit Meeting of the
Annex 24: SADC on the Democratie Republic of the
Congo, 23 August 1998
3 Sept. 1998 Amnesty International, Democratie Republic
Annex25: of Congo: A Long-standingCrisis Spinning
out of Control, AFR 62/033/1998, 3
September 1998
8 Sept. 1998 Joint Communique of the Second Victoria
Annex 26: Falls Summit, 8 September 1998
11 Sept. 1998 Positionof the High Command of Uganda on
Annex27: the Presence of the UPDF in the DRC, 11
September 1998 (obtained from Chieftaincy of
Military Intelligence).
18 Oct. 1998 Communique of theEast African Co-operation
Annex28: Heads of State Summit on the Security
Situation in the Democratie Republic of
Congo, 18 October 1998
20 Oct. 1998 Press Statement by United States Department
Annex 29: of State regarding the Congo Conflict, .20
October 1998
27 Oct. 1998 Media Statement Issued by the Regional
Annex30: Meeting of Ministers of Foreign Affairs and
Defence on the Situation in the Democratie
Republic of Congo Held in Lusaka, Zambia
from 26-27 October 1998
Nov. 1998 Uganda's Position on Issues of Peace and
Annex 31: Security in the Great Lakes Region, November
1998
24416 Dec. 1998 Letter dated 15 December 1998 from the
Annex 32: Permanent Representative of Uganda to the
United Nations Addressed to the President of
the Security Council, S/1998/1180, 16
December 1998
18 Dec. 1998 Letter dated 18 December 1998 from the
Annex 33: Ministry of Foreign Affairs of the Republic of
Uganda to the DRC Ministry of Foreign
Affairs
1999 Jean-Claude Willame, L'Odyssée Kabila:
Annex34: Trajectoire pour un Congo nouveau?
(Karthala Press, 1999), pp. 222-23
16 Jan. 1999 Communique of the Regional Meeting of
Annex 35: Ministers of Foreign Mfairs and Defence on
the Situation in the Democratie Republic of
Congo held in Lusaka, Zambia from 14th to
16th January 1999
18 Jan. 1999 Press Release onSummit of Regional Leaders
Annex 36: on the Situation in the Democratie Republic of
the Congo, held in Windhoek, Namibia,
18 January 1999
Feb. 1999 Human Rights Watch, DemocratieRepublic of
Annex 37: Congo: Casualties of War -- Civi/ians, Rule
of Law, and Democratie Freedoms, Vol. 11,
No. OI(A), February 1999
Mar. 1999 Human Rights Watch, Background Paper on
Annex38: Slavery and Slavery Redemption in the Sudan,
March 1999
1 Mar. 1999 Memorandum dated 1 March 1999 from
Annex 39: Colonel Henry Tumukunde to H.E. Yoweri
Museveni Regarding Kidnap of Foreign
Tourists in Bwindi (obtained from
Chieftaincyof Military Intelligence)
2451Mar. 1999 Rough TranslationsofNotes Left on Bodiesof
Annex40: Executed Hostages and Letter Sent with
Released Hostage, Bwindi Impenetrable
National Park, Uganda, 1 March 1999
(obtained from Chieftaincy of Military
Intelligence)
10Mar.1999 Report on Proceedingsof the 156thSession of
Annex41: the International Civil Aviation Organization
(ICAO) Council, Montreal, Canada, 10 March
1999
23 Mar. 1999 Statement by Hon. Amama Mbabazi to the
Annex42: United Nations General Assembly, 95th
plenary meeting,A/53/PV.95,23 March 1999
17Apr. 1999 Press Statement on theecond Meeting of the
Annex43: Committee on the Implementation of the
Ceasefire Agreement in the Democratie
Republicof Congo, held in Lusaka, Zambia,
from 16-17April1999
1June 1999 Joint Communique Issued by the Republic of
Annex44: Uganda and the Democratie Republic of
Congo, 1June 1999
10 Ju1y1999 Agreement for a Ceasefire in the Democratie
Annex45: Republic of Congo ("Lusaka Agreement"),
S/1999/815, 10July 1999
246 VOLUME ID
15July 1999 Report of the Secretary-Generalon the United
Annex46: Nations Preliminary Deployment in the
Democratie Republicof the Congo,
S/1999/790, 15July 1999
6 Aug. 1999 United Nations Security Council Resolution
Annex47: 1258,SIRES/1258(1999),6 August 1999
8 Sept. 1999 Uganda's Response to Accusations Made by
Annex48: DRC to the United Nations Security Council
AgainstUganda, 8 September 1999
17Sept. 1999 United Nations Security Council Resolution
Annex49: 1265,SIRES/1265(1999), 17 September 1999
5Nov. 1999 United Nations Security Council Resolution
Annex 50: 1273,S/RES/1273(1999), 5November 1999
15 Nov. 1999 Statement of Robert Chandia dated 15
Annex 51: November 1999 (obtained from Chieftaincy of
Military Intelligence)
30Nov. 1999 United Nations Security Council Resolution
Annex 52: 1279,S/RES/1279(1999), 30 November 1999
9Dec. 1999 Uganda Ministry of Defence Statement on the
Annex 53: Attack on Katojo Government Prison - Fort
Portal on the Moming of 9 December 1999
(obtained from Chieftaincy of Military
Intelligence)
Jan.2000 Report on Rural Terrorism Activities of
Annex54: Congo Based ADF Rebels, January 2000
(obtained from Chieftaincy of Military
Intelligence)
24711Jan. 2000 A List of Prisoners who were abducted by
Annex 55: ADF from Katojo and were undergoing
Military Training in Bundibugyo as on 11
January 2000 (obtained from Chieftaincy of
MilitaryIntelligence)
17Jan. 2000 Report of the Secretary-Genera1on the United
Annex 56: Nations Organization Mission in the
Democratie Republic of the Congo,
S/2000/30, 17January2000
26Jan. 2000 Statement by the President of the United
Annex 57: Nations Security Council,/PRST/2000/2, 26
January 2000
24Feb. 2000 United Nations Security Council Resolution
Annex 58: 1291, S/RES/1291(2000),24 February2000
8 Apr. 2000 Plan for the Disengagement and
Annex 59: Redeployment of Forces in Democratie
Republic of Congo(DRC) in Accordancewith
the Lusaka Agreement (''Kampala
Disengagement Plan"), 8 April2000
17Apr. 2000 Revelationsof MunyangondoAlias Benz Who
Annex60: Reported to UPDF from ADF on 17 April
2000 (obtained from Chieftaincy of Military
Intelligence)
19 Apr. 2000 United Nations Security Council Resolution
Annex61: 1296, S/RES/1296(2000), 19 April2000
May2000 Statement of Bwambale Ali, captured by
Annex62: UPDF on May 2000 (obtained from
ChieftaincyofMilitary Intelligence)
7May2000 Statement of Vihamba Kule, captured by
Annex63: UPDF on 17 May 2000 (obtained from
ChieftaincyofMilitary Intelligence)
24817May2000 ADF - Kabila Links - Revelations by
Annex64: CommanderJunju Juma Former Commanding
Officer ADF Presidential Protectionnit, 17
May 2000 (obtained from Chieftaincy of
Military Intelligence)
Report of Interrogation of Lyavaala Mpah1
25 May2000
Annex 65: Ali, ADF Operative, dated 25 May 2000
(obtained from Chieftaincy of Military
Intelligence)
28 May2000 Uganda's Role in the Democratie Republic of
Annex66: Congo, H.E. Yoweri Museveni's Address to
Parliament,8 May 2000
June2000 U.S.Committee for Refugees, World Refugee
Annex67: Survey2000, June 2000
8-9June 2000 Mechanisms for Disarming, Tracking and
Annex68: Quartering of Armed Groups as well as
Procedures for Handing Over Mass Killers,
Perpetrators of Crimes Against Humanity and
Other War Criminals and Elaboration of
Procedures of Disarmament of Ali Congolese
Civilians Who Are TilegallyArmed, 8-9 June
2000
15June 2000 United Nations Security Council, 4156th
Annex69: meeting, S/PV.4156, 15June 2000
16June 2000 United Nations Security Council Resolution
Annex 70: 1304,SIRES/1304(2000), 16June 2000
July2000 Statement of Lyavala Ali, surrendered to
Annex 71: UPDF on July 2000 (obtained from
Chieftaincyof MilitaryIntelligence)
23 Aug. 2000 United Nations Security Council Resolution
Annex 72: 1316,SIRES/1316(2000), 23 August 2000
24920 Sept. 2000 Report on the Situationof Human Rights in
Annex 73: the Democratie Republic of the Congo,
prepared by Special Rapporteur, Mr. Robert
Garret6n, pursuant to General Assembly
Resolution 54/179 and Commission on Human
Rights decision2000/15, 20 September 2000
21 Sept. 2000 Fourth Report of the Secretary-General on the
Annex 74: United Nations Organization Mission in the
Democratie Republic of the Congo,
S/2000/888,21 September2000
25 Sept. 2000 Philip Gourevitch, ''Forsaken," The New
Annex75: Yorker, 25 September 2000
Oct. 2000 ADF-Kabila Links-Revelationsby Commander
Annex 76: Issa Twatera Embundu, Former Commanding
Officer of ADF, defected to UPDF on October
2000 (obtained from Chieftaincy of Military
Intelligence)
13 Oct. 2000 United Nations Security Council Resolution
Annex 77: 1323,S/RES/1323 (2000), 13 October 2000
Dec. 2000 Human Rights Watch World Report 2000,
Annex 78: Sudan: Human Rights Developments,
December 2000
6Dec. 2000 The Sub Plans for Disengagement and
Annex 79: Redeployment ("Harare Disengagement
Plan''),6 December 2000
6 Dec. 2000 Fifth Report of the Secretary-General on the
Annex 80: United Nations Organization Mission in the
Democratie Republic of the Congo,
S/2000/1156, 6 December 2000
14Dec. 2000 United Nations Security Council Resolution
Annex 81: 1332, S/RES/1332 (2000), 14December 2000
25024 Jan. 2001 Letter dated 24 January 2001 from the
Annex 82: Registrar of Uganda Technical College -
Kichwamba to the Brigade Commander at
Fort Portal, Uganda (obtained from
Chieftaincy ofMilitary Intelligence)
2Feb. 2001 Briefingby H.E. Major General Joseph Kabila
Annex 83: to the 4271stMeeting of the United Nations
Security Council, S/PV.4271, 2 February 2001
12 Feb. 2001 Sixth Report of the Secretary-General on the
Annex 84: United Nations Organization Mission in the
Democratie Republic of the Congo,
S/20011128, 12 February 2001
20 Feb. 2001 Press Statement on the Conflict and Peace
Annex 85: Process in the Democratie Republic of Congo,
20 February 2001
22 Feb. 2001 United Nations Security Council Resolution
Annex 86: 1341, SIRES/1341 (2001), 22 February 2001
21 Mar. 2001 Letter dated 21 March 2001 from the Ugandan
Annex 87: Ministry of Foreign Affairs to the Embassy of
the Democratie Republic of Congo
29 Mar. 2001 Bloomberg News, ''Most Warring Troops in
Annex 88: Congo Meet UN Deadline for Pullback," 29
March2001
30Mar. 2001 Report on Evacuation of Uganda Embassy
Annex 89: Staff and Other Ugandans from Kinshasa in
August/September 1998,30 March 2001
Annex 90: Internai Report Regarding Uganda's
Involvement in DRC (obtained from
Chieftaincyof Military Intelligence)
251Annex 91: Chronological Illustration of Acts of
Destabilisation by Sudan and Congo Based
Dissidents (obtained from Chieftaincy of
MilitaryIntelligence)
Annex 92: Chart Summarizing Loss of Uganda
Govemment Property at Uganda Embassy,
Kinshasa
252 INDEX OF ANNEXES
IN CHRONOLOGICAL ORDER
VOLUME II
17Sept. 1990 Report on Uganda/Zaire Matters of Security
Annex 1: Concem to Uganda presented by Amama
Mbabazi, then Director General of the
President's Office, to the Administrator
General, National Documentation Agency,
Zaïre, 17 September 1990 (obtained from
Chieftaincyof Military Intelligence)
19Aug. 1995 Minutes from Meeting of "Eiders" of the West
Annex 2: Nile Bank Front Military Hïgh Command, 19
August 1995 (obtained from Chieftaincy of
Military Intelligence)
31 Aug. 1995 Report of the Ugandan Delegation to the 2"d
Annex 3: Regional Border Meeting Between the
Districts of Kisoro, Kasese, Rukungiri,
Bundïbugyo, Bushenyi and North-Kivu
Province (Zaïre) 28 - 31 August 95 Held at
Mbarara (obtained from Chieftaincy of
Military Intelligence)
23 Mar. 1996 Letter From West Nile Bank Front Military
Annex4: High Command to Major Motindo, lmbokolo,
Zaïre, 23 March 1996 (obtained from
Çhieftaincy ofMilitary Intelligence)
24 Apr. 1996 Report Regarding Enemy Attack on Kisoro
Annex 5: Detachment, 24 April 1996 (obtained from
ChieftaincyofMilitaryntelligence)10 June 1996 Situational Report from Resident District
Annex6: Commissioner!Kisoro on Activities of Hajji
Muhammed Kabeba's Group in Zaïre, 10 June
1996 (obtained from Chieftaincy of Military
Intelligence)
15 June 1996 Operational Report Covering Period from 22
Annex 7: April 1996 Up to Date, 15 June 1996
(obtained from Chieftaincy of Military
Intelligence)
July 1996 Human Rights Watch/Africa, Zaïre:Forcedto
Annex 8: Flee, Violence Agaïnst the Tutsis in Zaïre,
Vol. 8, No. 2(A), July 1996
16 Sept. 1996 United Nations Economie and Social Council,
Annex 9~ Report on the situation of human rights in
Zaïre, prepared by the Special Rapporteur, Mr.
Robert Garret6n, in accordance with
Commission resolution 1996/77,
E/CN.4/1997/6/Add.1, 16 September 1996
20 Sept. 1996 Combat Analysis Report on WNBF in West
Annex 10: Nile, 20 September 1996 (obtained from
Chieftaincy ofMilitary Intelligence)
15 Oct. 1996 Minutes of District Security Situation Review
Annex 11: Meeting Held at Bunagana on 15 October,
1996 (obtained from Chieftaincy of Military
Intelligence)
2 July 1997 Report Regarding Threat Assessment in South
Annex 12: Western Districts Kisoro, Kabale and
Rukungiri, 2 July 1997 (obtained from
Chieftaincy of Military Intelligence)
13 Sept. 1997 Monthly Report for the Month of August 1997
Annex 13: Regarding General Security Situation in the
Area of Mbarara, 13 September 1997
(obtained from Chieftaincy of Military
Intelligence)
2Oct. 1997 Human Rights Watch/Africa, The Democratie
Annex 14: Republic of the Congo: What Kabila is
Hiding, Vol. 9, No. 5(A), October 1997
Jan. 1998 Human Rights Watch, WorldReport 1998:
Annex 15: The Chi/dren 'sRights Project,January 1998
1998 Training Agreement between the Government
Annex 16: of the Republic of Uganda and the
Government of the Democratie Republic of
Congo for the Training in Public Order for the
Police of the Democratie Republic of Congo
6 Feb. 1998 Report Regarding Security/Military Situation
Annex 17: in Eastern Congo (27 January - 4 February
· 1998), 6 February 1998 (obtained from
Chieftaincy ofMilitary Intelligence)
13 Feb. 1998 Situational Report, 13 February 1998
Annex 18: (obtained from Chieftaincy of Military
Intelligence)
27 Apr. 1998 Protocol dated 27 April 1998 Between the
Annex 19: Democratie Republic of Congo and Republic
of Uganda on Security Along the Common
Border
27 June 1998 Report of Interrogation of Captured ADF
Annex 20: Rebel Fred Tukore, 27 June 1998 (obtained
from Chieftaincy ofMilitary Intelligence)
9 Aug. 1998 Statement by H.E. Yoweri Kaguta Museveni,
Annex 21: President of the Republic of Uganda, on
Background to the Situation in the Great
Lakes Region, 9 August 1998
13 Aug. 1998 Human Rights Watch Press Release, "HRW
Annex 22: Alarmed About Radio Broadcasts and the
Incitement of Ethnie Violence in the DRC,"
13 August 1998
321 Aug. 1998 Letter dated 21 August 1998 from the
Annex23: Embassy of the Republic of Uganda to the
Ministryof Foreign Affairs of the Democratie
Republicof Congo
23 Aug. 1998 Communique of the Summit Meeting of the
Annex24: SADC on the Democratie Republic of the
Congo, 23 August 1998
3 Sept. 1998 Amnesty International,Democratie Republic
Annex 25: of Congo: A Long-standing Crisis Spinning
out of Control, AFR 62/033/1998, 3
September 1998
8 Sept. 1998 Joint Communique of the Second Victoria
Annex26: Falls Summit, 8 September 1998
11 Sept. 1998 Positionof the High Command of Uganda on
Annex27: the Presence of the UPDF in the DRC, 11
September 1998(obtained from Chieftaincy of
Military Intelligence)
18 Oct. 1998 Communique of the East African Co-operation
Annex28: Heads of State Summit on the Security
Situation in the Democratie Republic of
Congo, 18 October 1998
20 Oct. 1998 Press Statement by United States Department
Annex29: of State regarding the Congo Conflict, 20
October 1998
27 Oct. 1998 Media Statement Issued by the Regional
Annex 30: Meeting of Ministers of Foreign Mfairs and
Defence on the Situation in the Democratie
Republic of Congo Held in Lusaka, Zambia
from26-27 October 1998
Nov. 1998 Uganda•s Position on Issues of Peace and
Annex 31: Security in the Great Lakes Region, November
'1998
416Dec. 1998 Letter dated 15 December 1998 from the
Annex 32: Permanent Representative of Uganda to the
United Nations Addressed to the President of
the Security Council, S/1998/1180, 16
December 1998
18Dec. 1998 Letter dated 18 December 1998 from the
Annex 33: Ministry of Foreign Affairs of the Republic of
Uganda to the DRC Ministry of Foreign
Affairs
1999 Jean-Claude Willame, L'Odyssée Kabila:
Annex 34: Trajectoire pour un Congo nouveau?
(Karthala Press, 1999),pp. 222-23
16Jan. 1999 Communique of the Regional Meeting of
Annex35: Ministers of Foreign Affairs and Defence on
the Situation in the Democratie Republic of
Congo held in Lusaka, Zambia from 14th to
16thJanuary 1999
18Jan. 1999 Press Release on Summitof Regional Leaders
Annex 36: on the Situation in the Democratie Republic of
the Congo, held in Windhoek, Namibia,
18January 1999
Feb. 1999 Human Rights Watch, Democratie Republic of
Annex 37: Congo: Casualties of War -- Civilians, Rule
of Law, and Democratie Freedoms, Vol. 11,
No. 01(A), February 1999
Mar. 1999 Human Rights Watch, Background Paper on
Annex 38: Slavery and Slavery Redemption in the Sudan,
March 1999
1Mar. 1999 Memorandum dated 1 March 1999 from
Annex39: Colonel Henry Tumukunde to H.E. Yoweri
Museveni Regarding Kidnap of Foreign
Tourists in Bwindi (obtained from
Chieftaincy ofMilitary Intelligence)
51Mar. 1999 Rough TranslationsofNotes Left on Bodies of
Annex40: Executed Hostages and Letter Sent with
Released Hostage, Bwindi Impenetrable
National Park, Uganda, 1 March 1999
(obtained from Chieftaincy of Military
Intelligence)
10Mar. 1999 Report on Proceedings of the 156thSession of
Annex41: the International Civil Aviation Organization
(ICAO) Council, Montreal, Canada, 10 March
1999
23 Mar. 1999 Statement by Hon. Amama Mbabazi to the
Annex42: United Nations General Assembly, 95th
plenary meeting, A/53/PV.95,23 March 1999
17Apr. 1999 Press Statement on the Second Meeting of the
Annex43: Committee on the Implementation of the
Ceasefire Agreement in the Democratie
Republic of Congo, held in Lusaka, Zambia,
from 16-17April 1999
1 June 1999 Joint Communique lssued by the Republic of
Annex44: Uganda and the Democratie Republic of
Congo, 1June 1999
10July 1999 Agreement for a Ceasefirein the Democratie
Annex45: Republic of Congo ("Lusaka Agreement"),
S/1999/815, 10July 1999
6 INDEX OF ANNEXES
IN CHRONOLOGICAL ORDER
VOLUME III
15July 1999 Report of the Secretary-General on the United
Annex46: Nations Preliminary Deployment in the
Democratie Republic of the Çongo,
S/19991790,15July 1999
6Aug. 1999 United Nations Security Council Resolution
Annex47: 1258, SIRES/1258 (1999), 6 August 1999
8 Sept. 1999 Uganda's Response to Accusations Made by
Annex48: DRC to the United Nations Security Council
Against Uganda, 8 September 1999
17 Sept. 1999 United Nations Security Council Resolution
Annex 49: 1265, SIRES/1265 (1999), 17 September 1999
5 Nov. 1999 United Nations Security Council Resolution
Annex 50:
1273, SIRES/1273 (1999),5November 1999
15Nov. 1999 Statement of Robert Chandia dated, 15
Annex 51: November 1999 (obtained from Chieftaincy of
Military Intelligence)
30Nov. 1999 United Nations Security Council Resolution
Annex 52: 1279, SIRES/1279 (1999),30 November 1999
9 Dec. 1999 Uganda Ministry of Defence Statement on the
Annex 53: Attack on Katojo Government Prison - Fort
Portal on the Morning of 9 December 1999
(obtained from Chieftaincy of Military
Intelligence)Jan.2000 Report on Rural Terrorism Activities of
Annex 54: Congo Based ADF Rebels, January 2000
(obtained from Chieftaincy of Military
Intelligence)
11 Jan. 2000 A List of Prisoners who were abducted by
Annex 55: ADF from Katojo and were undergoing
Military Training in Bundibugyo as on 11
January 2000 (obtained from Chieftaincy of
Military Intelligence)
17 Jan. 2000 Report of the Secretary-General on the United
Annex 56: Nations Organization Mission in the
Democratie Republic of the Congo,
S/2000/30, 17January 2000
26Jan. 2000 Statement by the President of the United
Annex57: Nations Security Council, S/PRST/2000/2, 26
January 2000
24Feb. 2000 United Nations Security Council Resolution
Annex58: 1291, S/RES/1291 (2000), 24 February 2000
8 Apr.2000 Plan for the Disengagement and
Annex59: Redeployment of Forces in Democratie
Republic of Congo (DRC) in Accordance with
the Lusaka Agreement (''Kampala
Disengagement Plan''),8 April 2000
17 Apr. 2000 Revelations ofMunyangondo Alias Benz Who
Annex60: Reported to UPDF from ADF on 17 April
2000 (obtained from Chieftaincy of Military
Intelligence)
19 Apr. 2000 United Nations Security Council Resolution
Annex 61: 1296, S/RES/1296 (2000), 19 April2000
May2000 Statement of Bwambale Ali, captured by
Annex62: UPDF on May 2000 (obtained from
Chieftaincy of Military Intelligence)
27 May2000 Statement of Vihamba Kule, captured by
Annex63: UPDF on 17 May 2000 (obtained from
Chieftaincyof Military Intelligence)
17May2000 ADF - Kabila Links - Revelations by
Annex 64: Commander Junju Juma Former Commanding
Officer ADF Presidential Protection Unit, 17
May 2000 (obtained from Chieftaincy of
Military Intelligence)
25 May2000 Report of Interrogation of Lyavaala Mpala
Annex65: Ali, ADF Operative dated, 25 May 2000
(obtained from Chieftaincy of Military
Intelligence)
28 May2000 "Uganda's Role in the Democratie Republic of
Annex 66: Congo," H.E. Yoweri Museveni's Address to
Parliament,28 May 2000
June 2000 U .S. Committee for Refugees, World Refugee
Annex 67: Survey 2000, June 2000
8-9 June2000 Mechanisms for Disarming, Tracking and
Annex 68: Quartering of Armed Groups as weil as
Procedures for Handing Over Mass Killers,
Perpetrators of Crimes Against Humanity and
Other War Criminals and Elaboration of
Procedures of Disannament of Ail Congolese
Civilians Who Are lllegally Armed, 8-9 June
2000
15June 2000 United Nations Security Council, 4156th
Annex 69: meeting, S/PV.4156, 15June 2000
16June 2000 United Nations Security Council Resolution
Annex 70: 1304,S/RES/1304 (2000), 16 June 2000
July2000 Statement of Lyavala Ali, surrendered to
Annex 71: UPDF on July 2000 (obtained from
Chieftaincy ofMilitary Intelligence)
323 Aug. 2000 United Nations Security Council Resolution
Annex 72: 1316, S/RES/1316 (2000), 23 August 2000
20 Sept. 2000 Report on the Situation of Human Rights in
Annex 73: the Democratie Republic of the Congo,
prepared by Special Rapporteur, Mr. Robert
Garret6n, pursuant to General Assembly
Resolution 54/179 and Commission on Human
Rights decision 2000/15,20 September 2000
21 Sept. 2000 Fourth Report of the Secretary-General on the
Annex 74: United Nations Organization Mission in the
Democratie Republic of the Congo,
S/2000/888, 21 September 2000
25 Sept. 2000 Philip Gourevitch, ''Forsaken," The New
Annex 75: Yorker,25 September 2000
Oct. 2000 ADF-Kabila Links-Revelationsby Commander
Annex 76: Issa Twatera Embundu, Former Commanding
Officer of ADF, defected to UPDF on October
2000 (obtained from Chieftaincy of Military
Intelligence)
13 Oct. 2000 United Nations Security Council Resolution
Annex 77: 1323, S/RES/1323 (2000), 13 October 2000
Dec. 2000 Human Rights Watch World Report 2000,
Annex 78: Sudan: Human Rights Developments,
December 2000
6 Dec. 2000 The Sub Plans for Disengagement and
Annex 79: Redeployment (''Harare Disengagement
Plan''), 6 December2000
6Dec. 2000 Fifth Report of the Secretary-General on the
Annex 80: United Nations Organization Mission in the
Democratie Republic of the Congo,
S/2000/1156, 6 December 2000
414 Dec. 2000 United Nations Security Council Resolution
Annex 81: 1332, SIRES/1332 (2000), 14 December 2000
24 Jan.2001 Letter dated 24 January 2001 from the
Annex 82: Registrar of Uganda Technical College -
Kichwamba to the Brigade Commander at
Fort Portal,Uganda (obtained Chieftaincy of
Military Intelligence )
2 Feb.2001 Briefingby H.E. Major General Joseph Kabila
Annex 83: to the 4271stMeeting of the United Nations
Security Council, S/PV.4271, 2 February 2001
12 Feb. 2001 Sixth Report of the Secretary-General on the
Annex 84: United Nations Organization Mission in the
Democratie Republic of the Congo,
S/2001/128, 12 February 2001
20 Feb. 2001 Press Statement on the Conflict and Peace
Annex 85: Process in the Democratie Republicof Congo,
20 February 2001
22 Feb. 2001 United Nations Security Council Resolution
Annex 86: 1341, SIRES/1341 (2001), 22 February 2001
21 Mar. 2001 Letter dated 21 March 2001 from the Ugandan
Annex 87: Ministry of Foreign Affairs to the Embassy of
the Democratie Republic of Congo
29Mar. 2001 Bloomberg News, "Most Warring Troops in
Annex 88: Congo Meet UN Deadline for Pullback," 29
March2001
30Mar. 2001 Report on Evacuation of Uganda Embassy
Annex 89: Staff and Other Ugandans from Kinshasa in
August/September 1998,30 March 2001
Annex 90: Internai Report Regarding Uganda's
Involvement in DRC (obtained from
Chieftaihcy ofMilitary Intelligence)
5Annex91: Chronological Illustration of Acts of
Destabilisation by Sudan and Congo Based
Dissidents (obtained from Chieftaincy of
Military Intelligence)
Annex92: Chart Summarizing Loss of Uganda
Govemment Property at Uganda Embassy,
Kinshasa
6MAP1: DEMOCRATICREPUBI...IC OF CONGOANDNEIGHBOURINGSTATES
TransverseMercatorProjection
CHAl) Dalum: WGS-84
Sc.ale:1:16,100,000
(accur,tteat Eqv.1lor)
0 250 500
Statue Miles
0 300 600
E7
KilomelersMAPII: PLACE.'5 INUGANDAMENTIONEDINTHECOUNTER-MEMORIAL
s•N-
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i
D A N
-L;
{
_,...:.:.-
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Scale:1:4,000,000
({\f.\'.ütau.•ntEqu;110r)
0 50 100
~~--==-·--------,
S~alutes
0 75 150
6--- -i
Ki!QIIH!tcrsMAP Ill: PLACES IN DEMOCRATIC REPUBLIC OF CONGO MENTIONED IN THE COUNTER-MEMORIAL
CENTRAL REPUBLIC lA
Atlantic
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Transverse.vtercatorProjt.><:tton
Dalum: WGS-84
Scale: 1:9,500,000
!XC.IJrale.ltlhc.-fqllôltOit
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Counter-Memorial of Uganda