INTERNATICOUROFJUSTICE
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CASECONCERNIRMED
ACTIVITIES
ONTHETERRITORY
OFTHECONGO
DEMOCRATCEv.'OFTHECONGO
UGANDA
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UGANDARESPONSOJUDGES' UESTIONS
6MAY2005
• TABLOFCONTENTS
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Tab
UgandasespantatheQuestofJudVereshche....................................................1
UgandasespantatheQuestofJudgeKooij.........................2...............................
UgandasesponsatheQuestofJudgeEla......................................
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•
•• Question from Judge Vereshchetin:
the first counter-claim, found in the written pleadingsconcrete submissions relating to
•
•• UgJuly 1994 through and including March 2001.
•
•
- 1-• Question from Judge Kooijmans:
Can the Parties indicate whîch areas of the provinces of Equateur, Orientale, North Kivu
and South Kivu were in the relevant periods under the control of the UPDF and which under the
controlthe various rebellious militias?
It would be isketch maps would be added.
•
• Uganda's Response:
• 1. Uganda's response to this question cov_ersthe period from 1 August 1998 through
2 June 2003. ln Uganda's view, this is the relevant time period because the Parties are in
agreement that (a) prior to 1 August 1998,litary forces (the UPDF) were in
Congolese territory (in the border regions of eastern Congo) with the consent of the DRC
govemrnent, and (b) after 2 June 2003, there were no longer any Ugandan military forces in
Congo.
2. The locations in the DRC where the UPDF were present, during the relevant time
period, changed over the course of the period. The same is true with respect to the presence of
other military forces in the DRC, including: the ADF (one of the principal anti-Uganda rebel
groups); the combined armed forces ofSudan,nd other anti-Uganda rebel groups
(including the WNBF and UNRA II); Rwanda; and the armed forcesree Congolese
rebel organisations, known as the MLC, the RCD and the RCD-K (also called RCD-ML).
•
3. Accordingly, ta provide the most accurate representation of the locations of the
UPDF and the other rnilitary forces named above, Uganda will identify the locations of ali of
these military forces as ofnine critical dates during the relevant time period. Uganda will do sa
bath in narrative form, and in nine maps that illustrate the information set forth in the narration
below.
(l) Locations of Certain Military Forces in the DRC as of l August 1998
4. On 1 August 1998, there were three battalions ofUPDF troops --not exceeding
2,000 soldiers --in the eastern border areas of the DRC, particularly in the northem part ofNorth
Kivu Province (around Beni and Butembo) and the southem part of Orientale Province (around
Bunia). These troops were present in, but did not exercise any control over, the areas where they
operated. Administrative authority and control was exercised by the DRC governrnent. The
•
- 1~ presence ofUgandan forces was consented toby the DRC government, both informally (since
May 1997) and formally (by virtue ofthe written Protocol of27 Apri11998). (CR 2005/8, pp. 8-
15; CR 2005/14, pp. 48-50.) The mission ofthe UPDF forces was to subdue the ADF and other
Ugandan rebel groups operating in the border areas. Accordingly, the UPDF forces were not
stationary, but moved frequent! y within their zones of operations. The ADF and other rebel
groups maintained base camps in these areas, but also moved frequently to avoid detection, and
to conduct offensive military operations against Uganda. The general locations ofthe UPDF as
of 1 August 1998, and the base camps of the ADF, are depicted on Map 1. (Counter-Memorial,
paras. 30-32.)
(2) Locations of Certain Military Forces in the DRC as of 1 September 1998
5. As Uganda explained in ber Counter-Memorial, and again during the oral
• proceedings, between 1 August 1998 and 1 September 1998, Uganda modestly augmented the
UPDF presence in the eastern border areas in response to: stepped-up cross-border attacks
against Uganda by the ADF, which was being resupplied and reequipped by Sudan and the DRC
government; attacks on UPDF troops in the border areas that had long been present there with
the consent of the DRC government; the increased violence in the region resulting from the
outbreak of civil warin the DRC on 2 August 1998; and the shift in military alliances by
President Laurent Kabila of the DRC, which resulted in new military alliances with Sudan and
Chad, as weil as the incorporation ofthe anti-Uganda rebel groups and the ex-FAR and
Interahamwe rnilitiarnen into the Congolese army (the FAC). (See generally Counter-Mernorial,
paras. 33-51; CR 2005/6, pp. 29-27; CR 2005/14, pp. 8-27.) Specifically, after a UPDF
battalion was invited into Bunia, on 13 August 1998, by the FAC brigade commander, Uganda
• sent a srnall contingent ofreinforcements there. (CR 2005/14, p. 22 (citing DRC Reply, para.
- 2- 2.59).) Also, in the border area to the north ofBunia; Uganda sent a single battalion .toWatsa,
• via Aru, to monitor the situation between Bunia and the DRC's border with Sudan. (Ibid.) On 1
September 1998, Uganda sent part of a battalion to Kisangani Airport, to guard that facility,
which bad been used by Sudan and the DRC government to supply arms and other war materiél
to thegandan rebel groups in the eastern border areas. At the time, Kisangani itselfwas in the
bandsof Rwanda and the RCD Congolese rehel organisation (which was allied to Rwanda), and
the UPDF troop contingent was sent to the Kisangani Airport at Rwanda's invitation. (CR
200516,p. 36; 2005114, p. 22.) Thus, Ugandan troops were present in four locations (Beni,
Bunia, Watsa and Kisangani Airport), but exercised no administrative control at these locations,
except for the airportangani.
6. As indicated, by 1 September 1998, Rwanda and ber RCD allies bad tak.encontrol
of Kisangani. In fact, as Uganda bas previously shawn in bath ber written and oral pleadings,
• Rwandan military forces invaded the DRC in supportD rebels immediately upon the
commencementofthe rebellion on 2 August 1998. (Counter-Memorial, paras. 45-46; CR
200516,pp. 33-36.) By the end of August 1998, Rwandan and RCD forces bad swept through
North andouth Kivu Provinces, and parts of Orientale Province (including Kisangani),
Mainema Province and Kasai Oriental Province. Uganda does not know the precise dates of
Rwanda's or the RCD's military operations, or the precise extent of the Congolese territory that
they penetrated. No Ugandan forces were present in South Kivu, Mainema or Kasai Oriental
Province; nor were Ugandan forces present in North Kivu Province south of the vicinity of
Butembo. Thus, Uganda does not know how control was exercised, or by whom, in most of the
areas where Rwandan and/or RCD military forces operated.s know, however, that
in the areaseastern Congo where Ugandan troops were (as described above, in the northem
•
- 3 - ---~--· -- ·--·-------
part of North Kivu Province and the southem part of Orientale Province), control oflocal
administration was seized and subsequently exercised, during the course of August 1998, by the
•
RCD rebets. Except for Kisangani, there were no Rwandan forces present in any of the locations
where Ugandan forces were.
7. Map 2 depicts the locations ofUgandan forces as of l September 1998, the
locations of the ADF, and the locations of Rwanda and the RCD rebets, although, as indicated,
the outer Iimitsf the zones in which the Rwandan and RCD forces were present cannat be
identified with precision. Map 2 also depicts the presenceSudanese, Chadian and allied
Ugandan rebel forces in the vicinity ofGbadolite, in northerngo, and at Kindu, in Mainema
province (where they were deployed against Rwandan and RCD forces fighting for control of
/
Kindu); the Sudanese and Chadian forces begaii to arrive in the DRC in late August 1998.
(Counter-Memorial, paras.48-50; CR 2005/14, pp. 8-16; DRC Reply, Annex 108 (reports dated
9, 12-14 and 16 Sept. 1998).)
•
(3) Locations of Certain Military Forces in the DRC as of 10 September 1998
8. There was no movement ofUgandan forces between 1 September and 10
September 1998. (See DRC Judges' Folders, Tab 40.) Accordingly, their locations remained the
same. However, as of the first few days of September, more than 2,000 Sudanese miJitary forces
and an equivalent numberof Chadian soldiers bad arrived at Gbadolite, in northem Congo, and
deployed eastward to tak:econtrol of the airports and airfields between Gbadolite and the
Ugandan border, including those at: Lisala, Burnba, Buta and Isiro. (Counter-Memorial, paras.
48-50; CR 2005/14, pp. 8-16; DRC Reply, Annex 108 (reports dated 9, 12-14 and 16 Sept.
1998).) The Sudanese and Chadian military forces were augmented by thousands ofanti-Uganda
• rebels, mainly from the WNBF and UNRA II, who had been trained and arrned by Sudan,
- 4- airlifted ta the DRC and încorporated into the Congolese army (the FAC). (Counter-Memorial,
• paras. 48-50; CR 200516,p. 37; CR 2005/14, p. 13.) The airports and airfields were used to
supply arms, ammunition and reinforcements to the ADF, and for direct attacks onndan
targets.
9. Map 3 depicts the presence of the combined Sudanese, Chadian and Ugandan
rebel forces as of 10 September 1998, as well as the positions ofUgandan military forces in the
DRC as ofthat date. Also depicted are the approximate locations of the armed forces ofRwanda
and the RCD rebels, and the area in eastern Congo where the ADF operated.
(4) Locations of Certain Military Forces in the DRC as of 1 June 1999
10. As Uganda has demonstrated in bath ber written and oral pleadings, ber High
Command made a decision on 11 September 1998 to defend Uganda's territory and confront ber
• attackers -- specifically Sudan and the Ugandan rebels -- by deploying up to approxirnately
10,000 Ugandan troops into the DRC and depriving ber enernies ofthe use ofCongolese
territory, including bath the border areas and the airports and airfields within striking distance of
Uganda, from which they were carrying out arrned attacks agaînst Uganda. (Counter-Memorial,
Annex 27.) Between 17 Septernber 1998 and 1 June 1999, a period ofeight and a halfmonths,
the UPDF fought against the ADF in the eastern border areas, and against the combined forces of
Sudan, Chad and the other Ugandan rebel groups in northeastern and northern Congo, until the
ADF forces were largely (but not entirely) subdued or dispersed, and all of the airports and
airfields occupiedy Sudan during earlySeptember 1998 -- with the exception ofthe one at
Gbadolite -- were captured. (Counter-Memorial, paras. 54, 63; CR 2005/6, p. 47-48.) Ugandan
forces passe.,through, and sometimes engaged in combat in various locations en route to these
• airports and airfields. These intermediate locations are listed among the sites of "Operation Safe
- 5 - Haven," a document included at Tab 40 of the DRC's Judges' Polders, submitted during the oral
• pleadings. Ugandan forces quickly moved on from these intermediate locations, and did not
remain at any of them. They remained on!y at the specifie locations indicated on the maps
submitted herewith.
11. Map 4 depicts the locations UPDF and other military forces as of 1 June
1999. The UPDF took controlli of the relevant airports and airfields as depicted on the
maps. It did not, however, exercise administrative control in the cities or towns in which those
airports/airfields were located, or in any other areas where it operated. (Rejoinder, paras. 198-
202.) Indeed, it was the strict policy ofthe Ugandan governnotexercise anyPDF
administrative authority anywhere in thePorter Commission Repo146~This
raie consciously and deliberately was left exclusively to the local Congolese authorities. As of 1
June 1999, civil administration was in the hands ofthe RCD rebel organisation in North Kivu
Province and the eastern and southem parts of Orientale Province; in Equateur province and the
•
western and northem partsientale Province, civil administration was exercised by the MLC
rebel organisation.Rejoinder, Annex 46, pp. 65, 66, 129 & 156.) Bath the RCD and MLC
had huge armed contingents oftheir own, in bath cases exceeding in number the Ugandan troops
that were present in the DRC, and they carried out the police function in their respective areas.
Thus, Map 4 shows the areas controlled by the RCD and the MLC as of 1 June 1999, punctuated
by the specifie and limited number of locations (airports and airfields) at which the UPDF was
present. Map 4 also shows that, as of 1 June 1999, Sudanese and Chadian forces were confined
to Gbadolite and its environs.
•
- 6- (5) Locations of Certain Military Forces in the DRC as of 10 Julv 1999
• 12. On 10 July 1999, the Lusaka Agreement was signed by the DRC, Uganda,
Rwanda, Zimbabwe, Angola and Namibia; shortly thereafter it was also signed by the three
Congol'eserebel organisations (by this time, the RCD bad split into two factions: the RCD-G,
based in Goma, and the RCD-K --later to be known as the RCD-ML -- based initially in
Kisangani, and later inBunia). As Uganda demonstrated bath in ber written and oral pleadings,
the Lusaka Agreement imposed a requirement on ali the parties, foreign asgolese,
that their armed forces "shall remain" in place, pending the implementation of the calendar of
"Major Ceasefire Events" set forth in Annex B, and the adoption of a "withdrawal schedule"by
·theparties (through their Joint Military Commission), the UN and the OAU. (CR 2005/14, pp.
38-40.)
13. The locations ofUgandan, Congolese rebel and Rwandan armed forces as of 10
•
July 1999 are depicted in Map 5. As ofthat date, there were no longer any Sudanese or Chadian
military forces in the DRC; the last ofthese departed from the DRC during the final stages of the
fighting around Gbadolite in late June and early July 1999. (Counter-Mernorial, paras. 54, 63.)
Map 5 is drawn from the map that forms an integral part of the Harare Disengagernent
Agreement of 8 December 2000, which shows the area of conflict in the DRC divided into four
distinct disengagement areas, ofwhich Area 1 covers the part ofthe DRC where both the UPDF
and MLC were present, and Areas 2, 3 and 4 cover the parts of the DRC where Rwandan and
RCD military forces were present. (Counter-Mernorial, Annex 59.) Since there bad been no
rnaterial disef).gagementof contending forces between 10 July 1999 and 8 Decernber 2000, the
map included in the Harare Disengagement Agreement representsurate approximation of
• the locations of the contending military forces as of 10 July 1999.
- 7- 14. As Uganda pointed out in ber oral pleadings, neither the map nor the Harare
Disengagement Agreement itself distinguishes between the locationsF, on the one
•
hand, and the MLC, on the other, within Disengagement Area 1; nor do they distinguish between
the locations ofRwandan and RCD forces in Ar3or 4. (CR 2005/6, p. 56.) That was not
the purpose of the Harare Agreement, which was solely to disengage hostile forces from one
another, not to distinguish between or among friendly or allied forces operating in the same area.
15. Map 5, by contrast, makes this distinction, at !east with respect to the locations of
Ugandan forces and the locations of the MLC within Area 1. Because Uganda bas no precise
knowledge of the locations ofRwandan forces (as distinguished from RCD forces) within Areas
2, 3 or 4, Map 5 makes no attempt to draw such a distinction. As shawn on Map 5, within Area
1, Ugandan forces were located only at certain, specifie places in the DRC, namely at airfields in
northern and northeastem Congo, and along the Congolese-Ugandan border in eastern Congo. In
no places did they exercise administrative authority or control. These were always exercised by
•
the Congolese rebel organisation that predominated in the area: the MLC, the RCD-G or the
RCD-K.
(6) Locations of Certain Military Forces in the DRC as of 1 May 2001
16. As Uganda set forth in her Counter-Memorial and again in ber oral pleadings,
acting in conformity with the Harare Disengagement Agreement, Uganda withdrew many
troops from the DRC. By the end of Apri12001, nearly 7,000 had been withdrawn. (CR
2005/14.) Ugandan forces bad withdrawn altogether from Aketi, Burnba, and Kisangani; they
remained only in Gbadolite, Gemena, Lisala, Basankusu, Buta, Isiro, Watsa, Bunia and Beni.
When they withdrew, their positions at the airfields was taken over by the Congolese rebel
• organisation that administered the relevant area.
- 8- ~--~---~-----------
17. It bears noting that during April 2001, President Museveni ofUganda publicly
announced that Uganda would shortiy withdraw ali remaining Ugandan troops in the DRC. This
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message was repeated in a Note Verbale hand-delivered ta the Secretary General on 3 May 2001.
(DRC ~.para. 2.90.) The Secretary General responded in a letter dated 4 May 2001, in
which he urged Uganda not to withdraw her troops from the DRC immediately or unilaterally,
but instead to remain engaged in the Lusaka peace process and withdraw her troops only in
accordance with the Lusaka Agreement. (Rejoinder, Annex 13.) Following receipt ofthe
Secretary General's letter, President Museveni reversed his decision to immediately withdraw ali
Ugandan forces from the Congo.
(7) Locations of Certain Military Forces in the DRC as of 6 September 2002
18. On 6 September 2002, Uganda and the DRC signed the Luanda Agreement,
• providing for: the parties' cooperation to assure the security and tranquility oftheir common
border; the status ofUgandan forces remaining in the DRC; and the timing and conditions
precedent to their eventual withdrawal. The Parties agreed at the oral hearings that the Luanda
Agreement was, inter alia, an expression of the DRC's consent ta the presence ofUgandan
military forces in Congolese territory. (CR 2005/4; CR 2005/14.) The Agreement addressed ali
of the locations in which Ugandan forces were then still present: Beni, Gbadolite, Bunia and the
westem slopes of the Ruwenzori mountains. (Luanda Agreement, Art. 1.) Between May 2001
and September 2002, Uganda withdrew ali her troops from Gemena, Lisala, Basankusu, Buta,
!siro, Watsa and Bafwasende. With regard ta the troops remaining in the DRC, the Luanda
Agreement provided for their immediate withdrawal from Beni and Gbadolite, and their ultimate
withdrawal from Bunia. Map 7 depicts the locations ofUgandan forces in the DRC as of the
• date of signature ofthe Luanda Agreement; italso shows the areas under the control ofthe MLC,
- 9- the RCD-ML (fonnerly the RCD-K) and the RCD-G (either alone, ortogether with Rwandan
• armed forces).
(8) Locations of Certain Military Forces in the DRC as of 1 January 2003
19. Pursuant to the Luanda Agreement, Uganda promptly withdrew ali her military
forces from Gbadolite andap 8 depicts the presence of the UPDF in the DRC as of 1
January 200fer the withdrawal of Ugandan forces from both of those locations.
(9) ·Locations of Certain Military Forces in the DRC as of 2 June 2003
20. Uganda has demonstrated, and the DRC bas not argued to the contrary, that ail of
her military forces were fully and finally withdrawn from the DRC as of2 June 2003. The
Parties are also in agreement that, since that date, no Ugandan military forces have retumed to
the Congo. Map 9 depicts the presence ofother forces in the DRC, as of2 June 2003, following
the complete withdrawal Ugandan military personneL
•
•
- 10- Question from Judge Elaraby:
•
The LusakaAgreement signed on 10 July 1999 which takes effect 24 hours after the
signature, provides that:
"The final orderly withdrawal of ali foreign forces from the national territory
of the Democratie Republic ofthe Congo shall be in accordance with Annex
'B' of this Agreement" (AnnexA, Chapter 4 (4.1)).
Sub-paragraph 17nex B provides that the "Orderly Withdrawal of ali Foreign
Forces" shall take pla+180 days".y
Uganda asserts that the final withdrawal ofits forces occurred on the second of June
2003.
What are the views of the two Parties regarding the legal basis for the presence of
Ugandan forces in the Democratie Republic of Congo in tbe period between the date of the
• "final orderly withdrawal" agreed to in the Lusaka Agreement, and the second of June
2003?
•• Uganda's Response:
Introduction
1. In Uganda's view, ber military presence in the DRC between the date of the "final
orderly withdrawal" initially stated in the Lusaka Agreement and 2 June 2003 was authorised in
the first instancethe Lusaka Agreement itself, together with subsequent disengagement
plans, and then laterthe Luanda Agreement of 6 September 2002.
2. _Theinitial180-day period by which the "Orderly Withdrawal of ail Foreign
Forces" was to have taken place under sub-paragraph 17of Annex B was never intended as an
independent deadline, un-tethered to the other Ceasefire Events" set forth in sub-
paragraphs 1 through 16 Annex B. Rather, the withdrawal of ali foreign forces was
• dependent on the prior realization of the preceding ceasefire events, including the completion of
the intra-Congolese dialogue and the disarmament of armed groups. When those prior ceasefire
events were delayed,became necessary to push back the date for the withdrawal of foreign
forces.he extension of the deadline for the withdrawal of ali foreign. forces was agreed to by
ail parties, including the DRC herself.
3. As of6 September 2002, and running though 2 June 2003, Uganda's presence in
the DRC was authorised by the bi-lateral Luanda Agreement which the DRC's advocates have
already admitted was a manifestation of Congo's consent to the continued presence of Ugandan
forces.CR 2005/4; CR 2005/12.)
4. For these reasons, as more fully set forth below, Uganda's presence in the DRC
between 10 July 1999 and 2 June 2003 was authorised and consented to by binding international
agreements.
•
- 1- The Lusaka Agreement Initial/y Authorized Uganda 'sMilitary Presence
in Congo Afier July 10, 1999for 180 days.
•
5. During the oral proceedings, advocates for the DRC argued for the first time that
the Lusaka Agreement did not authorise the presence of Ugandan troops in Congo even for the
180-day period stated in sub-paragraph 17 of Annex B. (CR 2005/12.) This argument was not
previously advanced in anyngo's written pleadings. Under this newly crafted argument,
the Lusaka Agreement was a "mere" ceasefire agreement that did not authorise Uganda's
military presence in theven for the initial 180-period set forth in Annex B, much less for
any period thereafter. {Ibid.)as already refuted this argument at length during the oral
proceedings and will not burden they reiterating ber response in full here. lnstead,
Uganda respectfully refers the Court to the relevant portions of the verbatim record. (CR
2005/14.)
6. Before leaving the point, however, Uganda notes the unambiguous language of
• the Lusaka Agreement insofar as it concems the presence ofUgandan troops (as weil as ether
foreign forces) in the territory of the DRC. As the Court stated in its Order on Interim
Measures, the Lusaka Agreement was "an international agreement binding upon the Parties."
(Order on Interim Measures, para. 37.) Therefore, Uganda could not do anything contrary to the
terms of the Agreement without running afoul ofher treaty obligations. One such obligation is
stated at Paragraph 11.4 of AnnexA, which states that "Ail forces shaHremain" in place "untiL
in the case of foreign forces, withdrawal bas started in accordance with the JMC/OAU, UN
withdrawal schedule." The language is unmistakably imperative in nature; it states that
Ugandan forces "shall remain" "until" the adoption of a withdrawal schedule. Thus, pending
the adoption of the withdrawal schedule (which was originally envisioned to establish a 180-day
withdrawal period), Ugandan troops were not only authorised ta remain in the DRC, they were
•
- 2 - required to do so by a binding international agreement. (See CR 2005/14.) There is thus no
• serious argument that the Lusaka Agreement did not authorise Uganda's presence in the DRC at
least for the initial 180-day period originally envisioned in Annex B.
The 180-day Period was Not an lndependent Deadline
7. The fact that the initial180-day period set forth in sub-paragraph 17 of Annex B
was never intendedan unconditional deadline for the withdrawal of foreign forces, including
Uganda's, becomes clear when one reads the Agreement as a whole, with due regard toits
abject and pm-pose. For example, Paragraph 12 of Article III, which is captioned "Principles of
the Agreement", states:
The final withdrawal of ali foreign forces from the national territory of the
Agreement and a withdrawal schedule to be prepared by the UN, the OAU this
and the JMC.
8. Similarly, Chapter 4 of AnnexA, which is captioned "Orderly Withdrawal of Ali
•
Foreignorces", states:
4.1 The final orderly withdrawal of ali foreign forces from the national
territory of the Democratie Republic of the Congo shaHbe in accordance with
Annex 'B' of this Agreement.
4.2 The Joint Militaryission/OAU and UN shall draw up a definitive
schedule for the orderly withdrawal of ail foreign forces from the Democratie
Republicf Congo.
9. Thus, under bath Article III, Paragraph 12 and Chapter 4 of Annex A, the initial
calendar set forth at Annex Bis inextricably tied to the withdrawal schedule to be prepared by
the UN, JMC and OAU. If it became necessary to modify the UN withdrawal schedule, the
180-day target too would necessarily have to be modified. This is the only reading which can
rnake sensef Paragraph 11.4to Annex A, cited above, which states in relevant part: "Ali
•
- 3 - forces shall remain in the declared and recorded locations until: (a) in the case of foreign forces,
withdrawal bas started in accordance with UN withdrawal schedule .... "
•
1O. Reading these provisions together, it is thus clear that, with regard to the timing of
the withdrawal of foreign troops, priority is to be given to the timeUN,le drawn up by the
OAU and JMC, not to the goal of 180 days first stated in sub-paragraph 17 of Annex B taken in
isolation.
11. Other elements of the Lusaka Agreement also make clear that the initial 180-day
period for the withdrawal of ali foreign forces from the DRC was not an isolated deadline
unconnected to the realization ether "Major Ceasefire Events" calendared in Annex B.
AsUganda bas previously stated, the Lusaka Agreement provided modalities for resolving both
the internai and externat dimensionsconflict in the DRC. (CR 2005/6; CR 2005/8.) In
fixing the modalities for resolving the external dimensionsct, the parties expressly
•
recognised that the root causexternat conflict was the use ofCongolese territoryby
arrned bands seeking to destabilise or overthrow neighbouring govem:ments. (See, e.g.,
Preamble & paras. 21 & 22.) To resolve the conflict, they agreed on a series of specifie
measures to prohibit the aiding or abettingmed groups, to prevent them from
continuing to operate from Congolese territory, and to eliminate them altogether by
disarmament, demobilization and resettlement. They agreed, as set forth in the Preamble:
[T]o put an immediate hait to any assistance, collaboration or giving of
sanctuary to negative forces bent on destabilising neighbouring countries ....
12. In Paragraph 22, the parties further agreed:
There shall a mechanism for disarming militias and anned groups .... In
this context, all Parties commit themselves to the process oflocating,
identifying, disarming and assembling ali members of armed groups in the
DRC.
•
-4- 13. More specifically, each of the parties agreed, in Chapter 12 of AnnexA:
•• (a) Not to arm, train, harbour on its territory, or render any form of support to
subversive elements or anned opposition movements for the purpose of
destabilising the ethers;
(b) To report ail strange or hostile movements detected by either country
along the common borders;
(c) To identify and evaluate border problems and cooperate in defining
methods to peacefully resolve them;
(d) To address the problemrmed groups in the Democratie Republic of
Congo in accordance with the terms of the Agreement.
14. The Parties also created a Joint Military Commission, composed of senior military
officers representing eachthe parties, and charged it with the responsibility for establishing
the specifie mechanisms for disarming the particular arm.edgroups identified in the Agreement
as threats to the securitytates bordering the DRC. As set forth in Chapter 9 of Annex A,
• paragraph 9.1:
The JMC [that is, Joint Military Commission] with the assistance of the
UN/OAU shall work out mechanisms for the tracking, disarming, cantoning
and documenting ofall arrned groups in the DRC, including ex-FAR, ADF,
LRA, UNRF II, Interahamwe, FUNA, FDD, WNBF, UNITA. ...
15. Of these nine groups, at !east five used Congolese territory to launch attacks
against Uganda: ADF, LRA, UNRF II, FUNA, and WNBF. (A sixth, "NALU", is added in
Annex C to the Agreement in the definitionrmed groups.") It was in the context of
providing for the disannament, demobilization and resettlement of the armed groups, that the
Lusaka Agreement addressed the presence of foreign military forces in the DRC. The language
of the Agreement, especially when viewed in light of the object and purpose thereof, manifests
the parties' understanding that there was a direct cause-and-effect relationship between the
activitiesfthe armed groups in the DRC and the deployment there of foreign forces, including
•
- 5 - those ofUganda. That is, they recognised that the cross-border attacks carried out by the anned
groups from Congolese territory led neighbouring States, including Uganda, to deploy their
•
troops in theRC to eliminate the security threats posed by these groups.
16. This understanding was reflected in the sequence of "Major Ceasefire Events" in
Annex B pursuant to which foreign military forces were not to be withdrawn until after the
disarmarnentof"armed groups" bad occurred. Thus, sub-paragraph 16 of Annex B,
"Disarmament of Armed Groups", is scheduled to occur by "D-Da+ 30 days-+ D-Day + 120
days",and to be followed 30 days after the completion ofthat process by the "Orderly
Withdrawal of all Foreign Forces" in sub-paragraph 17.
17. Taking account of the overall scheme ofthe Lusaka Agreement, it is equaUy clear
that the final withdrawal foreign troops was tied not on!y to the disarmament of armed
• groups, but also to the successful fulfilment of the steps envisioned to resolve the internai
dimensions of the conflict in Congo. In fact, the parties recognised that the internai and externat
dimensions of the conflict were inter-related. The Preamble to the Agreement itselfrecognises
that the conflict in the has both internai and extemal dimensions that
requireintra-Congolese political negotiations and comrnitment of the Parties
to the implementation ofthis Agreement to resolve[.]
18. In other words, the Parties (including, of course, the DRC) recognised that the
resolutionofthe externat dimensions ofthe conflict, including the withdrawal of foreign forces,
was dependent on the successful completion of"intra-Congolese political negotiatiThis"
1.ln the Third Report ofthe Secretary-General on the United Nations Organization Mission in the Democratie
Republicof the Congo dated 12 June 2000, the Secretary General expressly recognized the importance of the intra
Congolese dialogue to the successful implementation of the military aspects of the Lusaka Agreement. Referring to
the DRC govemment's refusais to participate in the intra-Congolese dialogue, he stated: "This is especially
unfortunate in view of the close relationship that exists between the success of the inter-Congolese dialogue and
progress in the peace process generally, including the implementation of the military aspects of the Lusaka Ceasefire
Agreement." (Third Report, para. 66.)
•
- 6-,-
too is reflected in the implementation calendar at Annex B in which the "Beginning of National
• Dialogue" (para. 12), the "Deadline for the closure of the National Dialogue" (para. 13), and the
"Establishment ofNew Institutions" (para. 14) are ali scheduled to occur prior to the withdrawal
of foreign forces as set forth at sub-paragraph 17. As a consequence, if the successful
completion of the "intra-Congolese political negotiations" were delayed, so too would the
withdrawal of foreign forces.
19. This same point about the inter-dependence of ali the events calendared in Annex
B can also be put in the following way: the Congolese national dialogue envisioned in the
Lusaka Agreement (nos. 12 & 13) was intended to create the conditions under which new
institutions could be created, including a new broadly-inclusive national government and a new
anny (no. 14), which in tum would create the environment in which United Nations peace
• keepers could be deployed (no. 15), which in tum was necessary to create the conditions in
which the disannament ofarmed groups could take place (no. 16). Only after ail this was
accomplished was the withdrawal of foreign troops envisioned (no. 17).
The .Modification of the Timetable in Annex B
20. Unfortunately, at "D+D180 Days" in January 2000, there bad been no real
progress in implementing ther Ceasefire Events" listed in Annex B, including bath the _
intra-Congolese dialogue and the disarrnamentrmed groups. In fact, neither process bad
even begun. Thus, the withdrawal of foreign forces, including but not limited to those of
Uganda, was substantially delayed. There is no evidence that any other party to the Agreement
ever accused Uganda of violating the Agreement in this regard. Nor did the Security Council.
21. Indeed, in Resolution 1291 dated 24 February 2000, the Security Council
expressly recognised that the original implementation calendar set forth in the Lusaka
•
-7- Agreement bad not been met, and called for necessary revisions to that calendar. (See Counter-
• Memorial, Annex 58.fer "[e]xpressing its strong support for the Lusaka Ceasefire
Agreement (S/1999/815), wbich represents the most viable basis for the peaceful resolution of
the conflict in the Democratie Republic oftbe Congo," the Security Council decided to give
MONUC, in cooperation with the JMC, the mandate "to develop, within 45 days of the adoption
of this resolution, an action plan for the overall implementation of the Ceasefire Agreement by
ali concerned with partkular emphasis on the following key objectives: ... the comprehensive
disarmament, demobilization, resettlement and reintegrationrs of ali armed groups
referred to inexA, Chapter 9.1 of the Ceasefire Agreement, and the orderly withdrawal of
ali foreign forces." (Para. 7(c) (emphasis added).) Thus, the Security Council itselfdirectly
recognised that theday goal for the withdrawal of foreign forces from the DRC bad proven
unattainable and called upon MONUC to help craft a revised timetable. Pending the adoption of
that new timetable, the authorisation ofUganda's military presence in the DRC remained
•
effective.
22. The position Zimbabwe, the DRC's ally, was identical to Uganda's. In April
2001, nearly two years after the Lusaka Agreement was executed, Zimbabwe's Minister of
Defence, Mr. Mahachi, j ustified the continuing presence of Zimbabwean military forces in the
DRC in this manner:
[T]he successful implementation of the Lusaka Peace Accord would
determine the pace at which Zimbabwe would continue to reduce its troops in
the DRC until an appropriate time for total withdrawal...
(Rejoinder, Annex)
•
- 8- 23. One year later, in July 2002, Zimbabwe's Foreign Minister, Mr. Mudenge, stated:
• As saon as the Lusaka Agreement is fulfilled, we will certainly withdraw our
troops immediately.
(Rejoinder, Annex 82.)
24. Outside ofthese proceedings, no one, not even the DRC, bas ever seriously
contended that the 180 days initially forecast for the withdrawal of foreign forces was
independentf the other elements listed in the implementation calendar. In fact, outside of
these proceedings, in bath words and deeds, the DRC herself acknowledged that the initial
timetable set forth in the Lusaka Agreement proved totimistic, and had to be modified;
but the parties' commitments fully to realise the fundamental abjects and pm-poses of the
Agreement remained finn. Addressing the Security Council on 2000, eleven months
after the Lusaka Agreement was executed, thethen Foreign Minister (now Vice
President), Mr. Yerodia Ndombasi, stated:
•
1must also provide assurances ta the effect that the Govemment of the
Democratie Republic of the Congo negotîated, through me personally, the
Lusaka Accords and President Kabila himself signed them.
We are in favaur of the Lusaka Agreement and cali for its full
implementation, even if, for example, the timetable was set inconsistently
with provisions the Agreement. We did not exploit that inconsistency to
call the Agreement itself into question. We are in favour
implementationof the Lusaka Agreement. Everyone should clearly
understand that.
Of course, when the veil that shrouds the future is tom open, it will be easy ta
precision what is going ta happen. That is why the Lusaka Agreement wasth
signed and only later did it become imperative for the dates on the timetable to
be modified, although the urgency of implementation was never lessened. Let
me repeat: we are in favourhe Lusaka Agreement and will give our ali ta
ensure that its implementation is facilitated.
(Counter-Memorial, Annex 69, p. 11.)
•
- 9- 25. The DRC's actions were to the same effect as her words. In April 2000, the
• Parties to the Lusaka Agreement, including the DRC government, agreed in Kampala, Uganda
to a formai plan for the disengagement of all Congolese and foreign military forces in the
Congo. The Kampala Disengagement Plan, as it came to be known, was signed almost nine
months (or sorne 270 days) after the Lusaka Agreement, and it provided for foreign forces to
continue to remain in the DRC, after disengaging from the front lines30 km.
(See Counter-Memorial, Annex 59.) This fact by itselfundermines any contention that the 180-
day forecast for the withdrawaleign forces in Annex B was immutable.
26. The Security Council endorsed the timetable for the withdrawal of foreign forces
set forth in the Lusaka Agreement, as amended by the Kampala Disengagement Plan. In
Resolution 1304,the Council called upon Uganda and Rwanda to
withdraw ail their forces from the territorycratie Republic of the
• Congo without further delay, in conformity with the timetableire
Agreement and April 2000 Kampala disengagement plan.
(Counter-Memorial, Annex para. 4(a) (emphasis added).)
27. The DRC's subsequent actions still further underscored her understanding that the
original implementation calendar to the Lusaka Agreement was subject to extension as
circumstances demanded. The Kampala Disengagement Plan of April 2000 was followed by
the Harare Disengagement Plan of 6 December 2000, nearly 17 months after the Lusaka
Agreement was signed and 11 months after the expiration of the initia1180-day forecast. The
HararePlan supplemented the earlier Kampala Disengagement Plan and provided for further
disengagement and redeployment within the DRC of the contending foreign and Congolese
military forces.
•
- 10- - - - - --- - ~
28. The Secretary General of the United Nations also confirmed that the Lusaka
Agreement not only authorised the continued presencen troops in Congo, but
•
required their presence, 1ong after the initialiod bad passed. In April 2001,
Uganda's President Yoweri Museveni made a public announcement that ali Ugandan forces
remaining in Congo would saon be withdrawn. He stated that Ugandan troops in eastern Congo
- where the majoritythem then were- were neither autharised nor trained ta carry out the
responsibility afkeeping public arder there, especially in the volatile Ituri region. He said that
this role should be played by UN peacekeepers, as envisioned in the Lusaka Agreement.
President Museveni's announcement elicited a prompt response from the Secretary General, in
the form of a letter dated 4 May 2001. The Secretary General urged Uganda not to withdraw
ber remaining forces from Congo unilaterally, but only to do so only in accordance wüh the
disengagement process rooted in the Lusaka Agreement. The Secretary General wrote:
• At this particularly sensitive and delicate stage in the DRC Peace Process, I
believe it is crucial that Uganda and ali the other signatories to the Lusaka
Agreement stay fully engaged with the international community and the
positive trends in the DRC.r as together we seek to consolidate the recent
1am confident of your commitment to the search for peace in the DRC. In
this regard, 1wish to encourage you to continue with the withdrawal of
Ugandan troops in the context of the disengagement process.
(Bejoinder, Annex 56.)
2.9. After receiving the Secretary General's letter, President Museveni agreed ta his
request, and reversed his decision to withdraw the remaining Ugandan forces from the
None of the parties to the Lusaka Agreement, including the DRC, protested this action. From
that point onward,ever, Uganda remained determined to withdraw ber troops from the DRC
at the earliest apportunity, without offending the Secretary General or the international
•
- 11- community, or violating ber commitments under the Lusaka Agreement. To this end, Uganda
• repeatedly called upon the Security Council send a multinational peacekeeping force to the
DRC,.to assume the role assigned to United Nations peacekeeper§ in the Lusaka Agreement,
and to permit Uganda finally and fully to withdraw ber troops from the Congo.
The Luanda Agreement
30. Uganda fullycomplied with ber obligations under the Lusaka Agreement and the
Kampala and Harare Disengagement Plans. By 6 September 2002, the only troops remaining in
Congo were contingents stationed at Beni, Bunia and Gbadolite. On that date, Uganda and the
DRC entered into the bi-lateral Luanda Peace Agreement which reconfinned the DRC's consent
to the maintenance ofUgandan anned forces in ber territory. The Luanda Agreement, provided
for the orderly withdrawalf ali remaining Ugandan forces that were then in Congo.
• Specifically, the DRC and Uganda agreed that Ugandan troops at Gbadohte and Beni would be
withdrawn immediately (which they were), and that Ugandan forces at Bunia, in the Ituri
district, would be withdrawn accordingo a calendar set forth in an annex to the Agreement.
(Rejoinder, Annex 84 (Luanda Agreement, Art. 1).)
31. Like the calendar annexed to the Lusaka Agreement, the calendar agreed to at
Luanda included a seriesof events, in sequence, leading up to and making possible the
withdrawal ofUgandan forces from Bunia. Specifically, the DRC and Uganda agreed to put in
place,with the assistance of the United Nations, "a Joint Pacification Commission on lturi
consisting of the Parties [that is, the DRC and Uganda], political, military, economie and social
forces active in the Bunia area, and the inhabitant grassroots communities." (Luanda
Agreement, Art. 1, para. 3.) The function of the Ituri Pacification Commission, or IPC, was to
• bring ali relevant actors together to reach agreements to end the violence, establish peace, and
- 12- create law enforcement mechanisms to assure security in the region. The withdrawal of
• Ugandan forces from Bunia was originally scheduled ta occur 100 days after the signing of the
Luanda Agreement of6 September 2002 (that is, December 15, 2002) and would follow the
"Inauguration of [the] IPC in Bunia," the "Establishment of Administrative authority in Ituri
Province" by the IPC, and the ..Installation [by the IPCJ of [a] law enforcement mechanism to
replace" the Ugandan forces. (Luanda Agreement, AnnexA.)
32. In addition, the Parties specifically consented to the maintenance ofUgandan
troops on Congolese territory in Paragraph 4 of Article 1 which states:
The Parties agree that the Ugandan troops shall remainopes of Mt.
Ruwenzori until the Par6es put in place security mechanisms guaranteeing
Uganda's security, including training and coordinated patrol ofthe border.
(Luanda Agreement,rt.1, para. 4.) There is no dispute that this provision manifests the
• consent of the DRC governrnent to the presence ofUgandan troops on DRC territory. Advocates
for the DRC repeatedly admitted this fact during the oral proceedings.R
2005/12.)
33. By subsequent agreement between the parties, the date for the final withdrawal of
Ugandan troops from Bunia was extended first to March 20,2003 and then to the end of May
2003. (See Judge's Folders, Tab 9.) Pursuant to these amendments, the last Ugandan soldier
footed across the border from the DRC into Uganda on 2 June 2003. Notwithstanding ber right
to maintain troops on the western slopes of the Rwenzori Mountains as set forth in Article 1,
Paragraph 4 of the Luanda Agreement, this marked the end ofUganda's rnilitary.presence in the
DRC.
•
- 13- The Successful Completion of the lntra-Congolese Dialogue
• In December 2002, three months after the DRC and Uganda concluded the
Luanda Agreement providing for the withdrawalll remaining Ugandan troops from
Congolese territory, the Congolese parties to the internai political dialogue-- the DRC
government, the three Congolese anned rebel organisations (the MLC, RCD-G and RCD-ML),
and the unarmed political and social forces vives-- reached a comprehensive agreement on a
"new political dispensation" for the DRC, as called for by the Lusaka Agreement. According to
the initial calendar set forth in Annex B, this was to have been accomplished within
the entry into force of the AgreeInfact, it took the Congolese parties three years and five
months to achieve this "Major Ceasefire Event." The "new political dispensation," which was
to be put into effectays after the Agreement came into force (according to Annex B), was
on! implemented in June 2003, three years and eleven months after the Lusaka Agreement took
••
effect. Nevertheless, the political dispensation" fulfilled the explicit obligations
undertaken by the Congo lese parties to the Agreiconsisted of a new national
govemment (including leaders the three armed rebel organisations and Congolese civil
society), aw national army (into which the military forces of the three rebel organisations
were fully integrated) and an aw:eement ta hold democratie elections within two years.
35. By the time the "new political dispensation" in the DRC took effect, in June 2003,
Ugandan troops Wereno longer in the DRC. The bilateral Luanda Agreement of September
2002, between Uganda and the DRC, in effect superseded the Lusaka Agreement's requirements
that troop withdrawal from the Congo await completion of the intra·Congolese dialogue, the
establishment of the "new political dispensation," the final disannament of the armed groups,
• and the adoption of a withdrawal schedule by the JMC!UN/OAU. Because of the long (i.e.,
- 14- almost four-year) delay in achieving the precursor "Major Ceasefire Events," the preparation of
• the withdrawal schedule (for foreign forces) by the JMCIUN/OAU was similarly delayed. In
fact, and as shown,he time these events occurred, Uganda and the DRC bad already agreed
upon (at Luanda) their own withdrawal schedule for Ugandan forces; thus,'the withdrawal
schedule to be prepared byN/OAU, under the terms of the Lusaka Agreement, was no
longer required, at least with regard toces.
Conclusion
36. For ali the reasons set forth above,da's view that the presence ofher
forces in the DRC between 10July 1999 and 2 June 2003 was fully authorised by binding
international agreements, which incorporated the consent of the DRC government. The
authorisation and consent were provided in the Lusaka Agreement, as modified and extended
• with the consent of ali Parties, including the DRC; and they were reconfirmed and further
extended in the Luanda Agreement, as amended bynd the DRC.
•
- 15-
Answers of the Republic of Uganda to questions put by Members of the Court at the close of the first round of oral argument