INTERNATIONAL COURT OF JUSTICE COUR INTERNATIONALE DE JUSTICE
Uncorrected Non-corrigé
CR 2000/24 (translation) CR 2000/24 (traduction)
Wednesday 28 June 2000 6 p.m. Mercredi 28 juin 2000 à 18 heures
The PRESIDENT: Please be seated. At the end of the Court's last sitting, the Democratic Republic of the
Congo asked to be allowed to make oral observations in reply to the oral observations made by the Republic of
Uganda. In order to fully ensure that both Parties are given a hearing, the Court has decided to reopen the oral
proceedings for that purpose. I shall therefore give the floor, for a maximum of 20 minutes, to the Democratic
Republic of the Congo, then the Court will adjourn for half an hour should the Republic of Uganda in turn wish
to make final observations, again for 20 minutes. Mr. Lion, you have the floor.
Mr. LION: Thank you, Mr. President, Members of the Court, for allowing us to reply very briefly and I should
therefore above all not like to take up too much of the Court's time, as the Court has already listened to us on
Monday and today. A short while ago I heard the Agent of Uganda speak of bad faith with regard to the
position of the Democratic Republic of the Congo, and these are words which I can only regret and cannot
accept. I cannot accept them when the facts we are relying upon are common knowledge. The proof is that there
was the resolution concerning the events in Kisangani, and we therefore consider that once these facts are in the
public domain - there have been televised debates, there have been press reports, there have been hundreds of
fatalities which are not disputed and which, as I pointed out the last time I spoke, have involved two foreign
armies fighting on the territory of the Democratic Republic of the Congo - all this is common knowledge. That
is also the reason why we felt it necessary not to make the task of the Court more difficult by submitting
documents in support of these events, and one thing that must definitely be noted is that in the oral arguments
put forward by Uganda, I observe, they did not refer to the serious and important events that have taken place in
Kisangani, apart from stating that they withdrew 120 km from Kisangani, which is perhaps unconfirmed, and
this is not the first time that such a situation has arisen. I should like to point out that we are very conscious of
the importance we attach to this case concerning the position of the Democratic Republic of the Congo and the
requests that are being made, and Professor Olivier Corten is going to elaborate very briefly upon the points on
which we feel that we must reply to the Ugandan delegation. I thank you for giving him the floor.
The PRESIDENT: Thank you, Mr. Lion. Professor Corten, you have the floor.
Mr. CORTEN: Thank you, Mr. President, Members of the Court. It is again an honour for me and I am most
grateful to the Court for allowing me to speak for some additional moments, to address the Court for a few
more minutes. At this stage, the Democratic Republic of the Congo has no wish to reply to the arguments which
have been put forward on the merits of the dispute; such arguments will form the subject of a written memorial
to be filed very shortly; in consequence, the Democratic Republic of the Congo would wish to concentrate on a
few points which are quite specific to the indication of provisional measures. In this connection I would like to
review very briefly four points: urgency, the Security Council resolution, and in particular resolution 1304, the
absence of Rwanda, and lastly the Lusaka Agreements as a "regional public order system".
With regard to the matter of urgency, the Democratic Republic of the Congo will deal with this fairly quickly,
mentioning merely two points; the first is that, on reading the Statute and consulting the jurisprudence of the
Court, matters are relatively simple. It is not possible, ever, to refer to what might be the failure to file a request
in order to assert that there is no state of urgency. Consequently, the fact that the Democratic Republic of the
Congo did not make a request for the indication of provisional measures immediately after filing its Application
is not at all a relevant circumstance. As I said a few days ago, the only condition stated in Article 41 of the
Statute of the Court is that the circumstances require the indication of provisional measures. And the
jurisprudence has further stated that the criterion is the existence of a serious risk of irreparable harm.
Therefore, Mr. President, Members of the Court, the alternative is twofold. Either, at the time the request is
submitted, there is a risk of irreparable harm and the circumstances require the indication of provisional
measures and these requests must be met and measures indicated. Or matters are not so and the requests must
not be met and measures must not be indicated. In no case can the rights of the State and the life of the
inhabitants be subject to a line of reasoning which consists in relying on, so to say, a sort of lack or failure on
the part of a State to make a request in a very specific manner. The proof of this is that the Court may indicate
provisional measures proprio motu . As the Court has said quite explicitly, at the stage of indicating provisional
measures the Court does not look to the past but to the future. And I believe that this is what it must do today,
taking into account the hundreds of dead, the thousands of wounded and the risk of seeing the number ofwounded and dead multiply in the very near future.
A second point in response regarding urgency is quite simply a reminder that, since the filing of the Application
of the Democratic Republic of the Congo, we have seen attacks against the city of Kisangani on three
occasions. Three occasions, including one, just a few weeks ago, that showed once more the irreparable dangers
and risks to which the inhabitants are subjected on account of the continuous presence of foreign armies in the
territory of the Democratic Republic of the Congo. What we have to ask ourselves here is not just whether the
same events may not happen again in Kisangani; we also have to ask ourselves whether these events may not
happen again elsewhere in Congolese territory, particularly when the territory is subject to occupation. Just
asking the question is as good as answering it. It comes as no surprise to the Democratic Republic of the Congo
that foreign troops engaged in fighting in a territory reach the point - quite clearly and most unfortunately -
where they make attempts on the lives of the inhabitants. A second aspect to which the Democratic Republic o f
the Congo would like to respond is Security Council resolution 1304. The Democratic Republic of the Congo
was most surprised to hear so much discussion of a resolution which, I remind you, reaffirms the principles of
the sovereignty and territorial integrity of the Democratic Republic of the Congo, condemns the Ugandan
troops for their fighting in Kisangani and demands that they withdraw - I shall be coming to this shortly - in
terms which, as the Democratic Republic of the Congo sees it, are unambiguous and, in any case, in no way
permit any assertion that the requests contradict the resolution. In the view of the Democratic Republic of the
Congo, this case is much closer to the Diplomatic and Consular Staff case, in which the Security Council had
made demands that the Court set forth judicially a few days later, than to the two Lockerbie cases, where the
requests that had been advanced were in assumed contradiction with a Security Council resolution. And even
two resolutions, for that matter.
With regard to the actual text of the resolution, the Democratic Republic of the Congo would like to emphasize
two points. First, paragraph 2 of the resolution - I would remind you - condemns the events that took place in
Kisangani and consequently rejects any argument put forward by Uganda to justify its action in that city. And
second, in so far as the Democratic Republic of the Congo's entire territory is concerned, it calls for or, to be
more precise, demands that the troops withdraw without further delay, in conformity with the Lusaka timetable.
Counsel for Uganda has to some extent relied on the travaux préparatoires for this resolution. The Democratic
Republic of the Congo prefers to rely on ordinary meaning: "without further delay, in conformity with the
timetable", which denotes that the timetable requires the troops to withdraw without further delay. In actual
fact, as counsel for Uganda pointed out only a short while ago, the timetable for withdrawal of the troops has
long since expired.
I would remind you that the Lusaka Agreements were concluded nearly a year ago and that it is therefore
difficult to invoke, as was done a short while ago, a period of six months to justify a subsequent presence,
irrespective, of course, of the fact that this could not in any case justify the presence prior to the Agreements. If
there were any doubt as to the wishes of certain member States of the Security Council, the text is there and one
cannot demonstrate any incompatibility between the text of the resolution and text of the requests.
A third point that has been raised is the absence of Rwanda. On Monday, I reminded you of jurisprudence
which in my view demonstrated that this argument that the Monetary Gold principle should be applied to a case
such as the present one was not relevant, particularly at the provisional measures stage, when only a prima facie
determination was called for and when, of course, the Court still had leeway, if preliminary objections were
filed, to decide at a specific subsequent stage of the proceedings upon any objection based on this precedent. I
have cited a number of precedents which have showed that it is possible for an applicant State to insulate, from
the procedural point of view, a particular legal relationship with another State. Here I fail to see why it should
be necessary before judging Uganda to judge Rwanda, as in the Monetary Gold case. Here I should merely like
to remind the Court of another precedent which is to my mind relevant in the present case, namely that
concerning the Genocide case. In 1993 Bosnia and Herzegovina initiated proceedings against Yugoslavia,
complaining of a number of acts bearing some similarity to those in the present case, apart from the use of the
specific term "genocide". It did not do so with regard to Croatia. Even though if you refer to all the United
Nations reports existing at the time, it is clear that a similar Application could also have been filed with regard
to the Republic of Croatia. But this was not done. Bosnia and Herzegovina did not see fit to institute
proceedings against the two States involved in armed action on its territory. Neither Yugoslavia nor the Court
considered that this circumstance was such as to present any problem whatsoever.As to procedural equity, the Democratic Republic of the Congo considers that, where equity and expediency are
concerned, the life of the inhabitants is the key criterion which should prompt the Court to decide the matter,
and not the fact that another - likewise guilty - State has not been brought before this Court. The key criterion is
that the circumstances require the indication of measures.
The final point, Mr. President, and I shall end on this, is the existence of a public system or system of regional
public order purportedly constituted by the Lusaka Agreements. In the view of the Democratic Republic of the
Congo, if there is public order, it is represented by the rules prohibiting the use of force and prohibiting
aggression and occupation. As the Democratic Republic of the Congo sees it, the Lusaka Agreements can on no
account contradict these various rules. One cannot, in any event, construe the Lusaka Agreements as
authorizing Uganda to remain on Congolese territory so long as, in its view alone, it considers that its security
is not guaranteed. If such were to be the case, and this is not the opinion of the Democratic Republic of the
Congo, the gravest doubts could be voiced about the validity of these Agreements, including with regard to the
problem of consent vitiated by coercion, because it must not be forgotten that these Agreements were
concluded by States some of which were forces occupying another State. But of course the Agreements must
not be construed in that way. The Agreements provide only for the procedures for withdrawal but cannot, on
any account, compromise the requirement for withdrawal and cannot, on any account, give the aggressor State
unlimited discretion regarding the fact that, according to it, the Democratic Republic of the Congo previously
violated the Lusaka Agreements and that it is relying on, as a counter-measure, as it were, and in accordance
with well-established legal principles, as a counter-measure or defence for non-performance - a hypothetical
violation by the Democratic Republic of the Congo in order to remain on Congolese territory without having
any right to do so.
With regard more specifically to the provisional measures, it is quite clear that the Lusaka Agreements in no
way preclude any other procedure for the peaceful settlement of disputes. We therefore find ourselves in the
much more general framework of the legal principles reiterated on many occasions by the Court. A State may
choose methods of peaceful settlement and it may perfectly well be the case, as the Court has pointed out, that
some channels of negotiation or agreements are concluded alongside the pursuit of proceedings before the
Court. I should like, on this subject, to remind you that in theLand and Maritime Boundary case, Nigeria relied
on a similar argument regarding the Lake Chad Basin Commission, claiming that there was a sort of regional
public order, and the Court rejected that line of argument. The Democratic Republic of the Congo thinks that, in
this case also, it cannot properly be claimed that the Lusaka Agreements in any way rule out the jurisdiction of
the Court.
In conclusion, Mr. President, the purpose of provisional measures is to protect the rights of the State and of its
inhabitants. The sole condition is that the circumstances require the indication of such measures. In the present
case, for the Democratic Republic of the Congo the Court's role is to contribute within the bounds of its powers,
powers recognized by the international community, since we are on a judicial plane, to avoid the recurrence of
events such as those we have known in Kisangani, whether in Kisangani or anywhere in that part of the
territory of the Democratic Republic of the Congo which is occupied.
Mr. President, Members of the Court, I thank you for having listened to me for a few minutes, and request the
Court's permission to stand aside and let the Agent reiterate the submissions of the Democratic Republic of the
Congo.
The PRESIDENT: Thank you, Professor Corten. Mr. Lion, you have the floor.
Mr. LION: Thank you, Mr. President, Members of the Court, for having granted us this additional moment of
time to make our observations on Uganda's oral statement. In a few days' time, this Saturday, the Congo will
celebrate 40 years of independence with part of its territory occupied. This is clearly an utterly deplorable
situation. We await with much interest and confidence the Court's decision in this case. Thank you.
The PRESIDENT: Thank you, Mr. Lion. May I ask the representatives of the Republic of Uganda whether they
wish to present oral observations in response now, or whether they need time for preparation, which cannot
exceed half-an-hour? I give the floor to the Agent of the Republic of Uganda.
M. KATUREEBE : Je vous remercie, Monsieur le président, ainsi que les éminents membres de la Cour. Nous
avons écouté avec attention les observations de la République démocratique du Congo. Nous ne croyons pasqu'il y ait lieu pour nous d'y répondre. En conséquence nous réitérons les conclusions que nous avons
présentées, tout à l'heure, à la Cour. Je vous remercie de votre attention.
The PRESIDENT: Je vous remercie infiniment. That being so, this brings the oral proceedings in this case to an
end and I remind you, as I already told you a short while ago, that the Court will make its Order in a public
sitting as soon as possible, and that the date of its delivery will be notified to the Agents of the Parties in due
course. The Court is adjourned.
The Court rose at 6.20 p.m.
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Translation